When Icarus didn’t fly (again) – a tale of disclosure disaster

One local authority learned last week of the dangers inherent in disclosure failures. Five members of Drystone Chambers successfully defended, four as leading juniors.

Operation Icarus was an investigation into the alleged fraudulent mis-selling of purported energy-saving products to the elderly and vulnerable. Doubtless it was thought that Icarus would be a suitable name for an operation which began with a company selling solar panels. The name proved to be prophetic.

The six defendants were accused of conspiracy to defraud, and a number of frauds by false representation. It was alleged that between 2012 and 2016 they had operated, via a number of companies, a scheme which deliberately targeted the elderly, and cynically exploited their insecurities and worries about energy efficiency. Several alleged victims paid tens of thousands of pounds for products which were said to have been hugely overpriced, useless or both. The fraud was said to be worth millions. The offences were denied.

The scale of the operation led to the recruitment of a freelance investigator by the prosecuting local authority. On paper, the individual they brought into their team was an experienced retired police detective. In reality, he proved to be the undoing of the entire case.

After many months of delay due to Covid and other factors, the case first came for trial early in the summer of 2022, more than four years after the search warrants had been executed. Its size was such that the local Crown Court could not accommodate it. A room was repurposed at a larger Magistrates’ Court, with an overflow courtroom linked to the main one. A larger than usual jury panel had to be borrowed from another Crown Court centre.

Mid-way through the opening of the case some diligent internet research revealed that a detective with the same name as the investigator at the centre of the case had once been tried at the Old Bailey for alleged offences relating to fabrication of evidence. He had been acquitted on defence submission. At this point, the wax holding Icarus’ wings together began to melt.

The defence teams submitted a number of section 8 disclosure requests. The trial was delayed and the jury told they would not be required for a few days. The prosecution set about gathering more details of the individual concerned. Over the next few weeks a drip-feed of disclosure revealed that the investigator was indeed the same person as the defendant at the Bailey. He also had a number of previous convictions which had never been disclosed. He had tried unsuccessfully to claim to be someone else when the police tried to apprehend him, and he had not declared any of this in his application for employment.

There was more. There had been a complaint by a potential witness that his repeated phone calls and visits at all hours of the day were distressing. His manager had found him hard to manage and for many of his work days there was difficulty establishing what he had been doing. At one stage he had been in a road accident and had abandoned his car at the scene. The following day he had reported to the police that investigative materials including draft witness statements and workbook notes had been stolen from the vehicle.

All of this was either known to the prosecuting authority or could have been discovered by asking the right questions. There had been little disclosure.

The defence continued to raise further section 8 requests. Every time something came out it triggered more questions. The concerns were such that the defence jointly applied to the trial judge for the disclosure process to be reviewed, by way of a rarely-used procedure found in the Judicial Protocol on the Disclosure of Unused Material. The prosecution resisted the application, but the trial judge held that there was a need for a review of what had been done.

It was expected that the prosecution would then put forward their senior investigating officer to explain what had occurred and be questioned. However, they did no such thing. Instead they provided a note from counsel which submitted that there was no cause for concern. They did not intend to call any evidence. No further witness statements were provided.

The trial judge consequently decided that the disclosure process was not complete. However, he went further, holding that the prosecution lacked insight into why it was not.

Shortly after the decision on the review a further section 8 disclosure request revealed that in preparation for the review hearing witness statements had been obtained from the officer in the case, and from the disclosure officers. These had not been disclosed or used in the hearing – and told of disclosure officers who had been overwhelmed and lacked direction, and of communication issues within the prosecution team.

The prosecution might have applied for time to sort themselves out at this point. However, much to the surprise of the defence, they instead announced that they would continue with the trial without so much as a pause for thought.

The defence therefore applied to stay the proceedings as an abuse of process. Ultimately the application failed, but this was largely because the original jury had lost its patience, and the time in the available trial slot was running out. The prosecution would have a period in which to review the disclosure and rectify the issues that had arisen.

A series of hearings followed, between the end of the first trial and the beginning of the second:

• A further abuse application had to be halted because the prosecution schedules of contact with witnesses turned out to be riddled with errors;
• The prosecution abandoned their investigator witness, concluding he was not a witness of truth, but had to be reminded that he should be tendered for cross-examination;
• Further disclosure showed that the rogue investigator had in some cases called vulnerable witnesses tens of times on his personal mobile, none of which was documented;
• Hearsay applications to adduce evidence from deceased complainants had to be abandoned because of the contact between the investigator and those elderly people;
• A further hearsay application was dismissed for various reasons, not least concerns about inadequate assessment of the witness’ capacity.

And so we came to the second attempt at a trial.

The week began with further section 8 applications. There were concerns about how several of the witness statements had come about. Some disclosure was given, but this revealed a lack of clarity in many cases as to the process that had been followed. There was even evidence of the statement of one witness being used as a template for another, with salient details crossed out and replaced.

Concerningly, it was revealed that several members of the trading standards team had left their employment over the years of the investigation and prosecution. The emails of those who had left, and electronic diaries and records, had been deleted. That represented a fundamental disclosure failure, and warranted further disclosure requests relating to the applicable policies.

It was the process of answering those requests that proved to be the final undoing. Late in the evening the prosecution team were informed, for the first time, that contrary to previous assertions, in fact there remained a personal workspace account for the rogue investigator on the Council IT systems. It contained around 2,000 documents, which had not been reviewed or disclosed. There was no satisfactory answer for why this had not been revealed previously – in response to one or other of the 50+ disclosure requests – and as a result the prosecution decided they had no choice but to offer no evidence in respect of all counts. That was undoubtedly the correct decision.

The defendants were duly acquitted, but they had endured more than five years of investigation and prosecution. Neither they, nor the complainants, saw justice done.

His wings having disintegrated in the protracted battles of previous months, Icarus plummeted into the ocean and sank beneath the waves without a trace.

So, what are the lessons to be learned?

Prosecution

1. Disclosure is not an add-on or an optional extra. It is fundamental to the duties of a prosecution team. A failure to keep a grip on disclosure may undo the case.
2. Disclosure officers are an important part of the team. They need to understand all aspects of what the case is about, and to be kept in the loop. The work they do is pivotal.
3. Investigators should be carefully chosen and their integrity beyond question. Background checks should be done. A Google search can reveal a great deal.
4. If an investigator is proving hard to manage, is reluctant to show what they are working on, and is not documenting their work, that is a red flag. This cannot be ignored.
5. Material that may undermine a case should be disclosed if there is no proper case for immunity. Deciding not to disclose can be harmful if the decision is later questioned.
6. If an existing team has failed in its disclosure obligations, it can be a mistake to rely on the same team to rectify the problem. This might have worked out very differently if, in the midst of the first trial, a retired senior detective had been hired to review the investigation and determine in what respects the rogue investigator had harmed it.
7. Ask the right questions of the right people. Had the personal workspace drive been discovered shortly after the first trial, the fatal decision might not have been necessary.
8. Ensure there is clarity of process and methodology when taking witness statements. There should never be an issue about who took a witness statement, or how it was done.
9. Counsel prosecuting the case should not become overly involved in the minutiae of disclosure decisions. It can become embarrassing if an undermining document has not been disclosed because prosecution counsel said not to reveal it. (The judge held that there had been no impropriety, but the prosecution could have done without having to discuss the issue at all.)
10. Prosecution of a complicated conspiracy to defraud may be beyond the capability of some trading standards teams. If it looks unwieldy, it may be better to agree a handover to the police.

Defence

1. Do not accept no as an answer. If you or your client have doubts, keep asking.
2. Ask all the questions you think arise, and spell out your disclosure requests. It is dangerous to assume that all of the necessary questions have been asked by the prosecution, or that the prosecution understand what you are driving at. They may not.
3. Carry out your own research, within reason. The issue that tipped this case over was on the first page of Google.
4. Remember that sometimes people change their names. The investigator in this case was using his middle name.
5. Check schedules and other documents. Mistakes can creep in. If they are exposed, they may cause the court to doubt the reliability of the documents in the case.
6. When possible, seek answers to disclosure requests in witness statements rather than notes from counsel. This concentrates the mind and ensures accountability for answers.
7. Defence teams collaborating and working together can be a force to be reckoned with.

Chris Jeyes, Claire Howell, Barnaby Shaw and Nicholas Bleaney were leading juniors for the defence. Georgia Luscombe was led by Claire Howell. Members of Chambers were instructed by solicitors Sills & Betteridge, Lincoln; McNeil & Co, Lincoln; Richard Brown & Co, Peterborough; and Maples LLP, Spalding.