The High Court refused to depart from its earlier decision denying T. McG.’s application for judicial review, finding that the pleaded matters did not create a real or serious risk that he would receive an unfair trial. It nevertheless made no order as to costs, citing the prosecution authorities’ conduct during the criminal prosecution.
In a judgment delivered on 8 December 2009, Mr Justice Herbert said a substantial body of medical, psychiatric and other material concerning the complainant had been disclosed to the defence two days before the scheduled start of the trial on 3 December 2007. The court had previously found that the material was unindexed and disordered, with handwritten portions difficult to read and the origin of some documents unclear.
The defence had sought the material months earlier and sent repeated requests for disclosure. After receiving it, the applicant’s solicitors wrote to the Director of Public Prosecutions on 27 December 2007, setting out why they considered the trial should not proceed. The DPP said the matter was under consideration. The defence agreed to allow time for that consideration, but its solicitors later said other disclosure requests remained unanswered. On 25 February 2008, prosecution counsel told the Central Criminal Court the case was ready for hearing and sought a new trial date. The High Court granted leave to seek judicial review on 14 March 2008.
In its earlier ruling, the High Court had rejected the claim that the matters raised created a real or serious risk to the applicant’s right to a fair trial. The December 2009 judgment addressed costs following that unsuccessful application. The applicant did not seek costs; he asked the court to make no order, relying on what his counsel described as special circumstances.
Mr Justice Herbert called the late disclosure, in its form and timing, “an act of serious prosecutorial oppression calculated to defeat or delay justice”. He expressly said there was no evidence to conclude that it was intentional. He found no satisfactory explanation for the delay in obtaining and providing material specifically requested in February 2007. He also criticised the authorities’ failure to respond substantively to the defence’s detailed concerns while later telling the Central Criminal Court the case was ready.
The judge said the judicial review application was closely connected to the prosecution and pending trial, so the court could consider that conduct when deciding costs. He found that the circumstances, taken together, justified departing from the usual rule that costs follow the outcome. As the applicant had not sought costs, the court made no order as to costs for the judicial review application.