The High Court has refused to prohibit a retrial of an anonymised applicant accused of sexual exploitation of a child, after finding that a failure to disclose phone records in his first trial was an error rather than prosecution misconduct.
The judgment, delivered by Mr Justice Michael Peart on 31 July 2014, concerned an application for judicial review seeking to stop a retrial. The first trial ended without a verdict after the jury was discharged on its third day in May 2014.
During cross-examination, the defence was told that records obtained from mobile network provider O2 covered a period when phone records were missing from the material disclosed to the defence. The records, comprising 348 pages, had been emailed to prosecution counsel months earlier but had not been opened or passed to the defence. The Director of Public Prosecutions accepted they should have been disclosed. They showed numerous contacts from the complainant’s phone to the applicant’s, including on the alleged offence date, but did not contain message content.
The trial judge discharged the jury after considering the disclosure failure. Mr Justice Peart said that was appropriate: the defence had been seriously hindered, and the trial would otherwise have been unsatisfactory. He stressed that the judicial review concerned whether a retrial would now carry a real risk of unfairness, not whether the trial that ended in discharge had been fair.
The applicant argued that the disclosure failure amounted to prosecution misconduct and that the interrupted trial had deprived him of an opportunity to seek a direction at the close of the prosecution case. The DPP described the failure as human error and argued that the evidence, including statements made by the applicant in interview, gave no realistic basis for such a direction. The judge found no unfairness arising merely from the lost opportunity, and attached no weight to it in balancing the applicant’s fair-trial rights against the public interest in prosecution.
The court also noted that this had been one trial, which ended without the jury considering a verdict; any retrial would be the first retrial. It found no evidence of exceptional stress or anxiety. The judge concluded there was no real risk of an unfair retrial because the applicant would have the records that should have been disclosed. He characterised the failure as an unfortunate error, while emphasising that disclosure obligations are vital and that deliberate concealment to disadvantage an accused would be a grave matter.
The court refused the order of prohibition. The retrial was not stopped. The judgment did not decide the applicant’s guilt or innocence.