January 21, 2020

A missed opportunity? The importance of disclosure in criminal proceedings

Disclosure is a key aspect of any criminal proceedings. As in all criminal proceedings, there is the presumption of innocence; the burden of proving the case is on the prosecuting body and disclosure is a vital part of this process.

In this article, we consider how the instruction of a specialist criminal lawyer at the outset of a criminal investigation will benefit both the policyholder and their insurer by enabling early access to information relevant to issues of liability, quantum and causation which will assist the insurer on strategy and crucially ensure minimal financial impact.

Importance of early legal instruction

Instruction of a criminal lawyer as a matter of priority is crucial, enabling contact to be made with the regulator from the outset. This will allow the lawyer to:

  • control the information which is provided to the regulator and push the regulator for as much information as possible to feed back to the insurer; and

  • identify relevant witnesses at the earliest opportunity and allow the insurer to maintain contact with these witnesses throughout the civil matter ensuring that they are available to attend trial if required.

For example, in serious road traffic cases where there is limited information on the injured party the lawyer can obtain pertinent information as to their condition, which allows the insurer to consider an early offer of rehabilitation to maximise recovery and any NHS charges due to hospital admission.

During the investigation undertaken by a regulator, a request may be made for anyone suspected of committing an offence (which may be an organisation or an individual) to attend an interview under caution (IUC). To do this, the regulator must have reasonable grounds to suspect that a criminal offence has been committed[1].  

An experienced criminal lawyer will always ensure that any IUC is conducted in accordance with the Police and Criminal Evidence Act 1984 and that the accused is suitably advised as to how to properly respond. Moreover, an IUC is a prime opportunity to obtain disclosure benefitting the insurer and policyholder.

What is pre-interview disclosure?

Pre-interview disclosure is not full disclosure but rather extracts of the pertinent elements of the investigation which should support the reasonable grounds for suspicion justifying the regulator treating the policyholder as a suspect. Technically, there is no obligation to comply with a request for such disclosure but it is usually provided as a failure to do so will most likely amount to a good reason for the lawyer to advise a suspect to remain silent.

If the disclosure does not reveal reasonable, objective grounds for the suspicion, then the lawyer can again consider directing the policyholder to remain silent during the interview and that no adverse inference should be drawn from this[2].  Based on that disclosure, the lawyer may then make representations that the accused be reclassified as a witness to any investigation rather than a suspect and that no further action should be taken. If successfully argued, this will ultimately save the cost and time of a potentially protracted and expensive criminal case whilst simultaneously strengthening the liability stance in any linked civil case. 

A criminal lawyer will be experienced in dealing with regulators and will know the correct questions to ask to elicit key information from them.  This will allow the policyholder to fully understand the case against them and at the same time allow the insurer to form an initial view on liability, contributory negligence and the requirement for expert evidence (for example, forensic collision investigation report).

Disclosure and defending a charge

If a policyholder is charged with a criminal offence, the prosecuting body is required to disclose the initial details of the prosecution case.  This can include witness evidence, photographs, electronic data and CCTV footage, however, the extent to which such information can be disclosed must be carefully considered before doing so[3].

Following a decision to prosecute, a criminal lawyer will carefully consider a policyholder's position and the merits of defending the charge(s).

It may be necessary, in matters where a non-guilty plea is to be entered, for a defence statement to be filed[4]. Once the statement has been served the prosecuting body must revisit the evidence and consider whether further disclosure is necessary[5]. A carefully worded statement will place the policyholder and insurer in the best possible position in both the criminal case and civil case, strengthening any defence and occasioning maximum disclosure[6] relevant to the issue of liability. 

Victim Personal Statement

In the majority of cases, prior to sentencing, a Victim Personal Statement (VPS) will be served by the prosecuting body. The VPS provides victims with an opportunity to explain how an offence has affected them physically, psychologically, financially or in any other way[7].

A VPS offers a detailed account of the level of injury sustained allowing the lawyer to feedback vital information to assist an insurer particularly when considering any loss of earnings or state benefits being claimed. An example of this is where the victim is an employee of the defendant company, the insurer can liaise directly with the company to provide occupational health support to facilitate a return to work on amended duties thus lessening the financial impact in the long term.

Conclusion

The key aspects of the disclosure process outlined above offer vital opportunities for the insurer to continually review the matter and assess their position.  A criminal lawyer's role throughout the process can ensure these opportunities are not missed, thereby taking full advantage of the information available which will form a crucial part of the insurer's strategy, reserve and understanding of any potentially linked litigation. 

 Author: Mark Pendlington, Associate

If you would like to discuss any aspect of this article further, please get in touch with a member of our team at sheregulatory@clydeco.com

 

[1] Police and Criminal Evidence Act 1984 (PACE) Code C, Notes for Guidance 10A

[2] R v Argent [1997] 2 Cr App R 27, R v Imran and Hussain [1997] Crim L.R. 754 CA and R v Roble [1997] CLR 346

[3] Section 17 CPIA

[4] Section 6A CPIA details the required content that should be set out the defence that the defendant intends to rely on at trial.

[5] CPIA Section 7A - https://www.legislation.gov.uk/ukpga/1996/25/section/7A

[6] Section 8(2) CPIA allows for an application to be made for specific disclosure if the disclosure following the defence statement is deemed not to satisfy the requirement of section 7A.   

[7] https://www.gov.uk/government/publications/victim-personal-statement