The government and its agencies have come unstuck yet again over failure to disclose electronic documents. A Reuters article British Airways price fixing trial collapses, published today, reports that the Office of Fair Trading (OFT) had failed to disclose relevant e-mails to the defence over several years.

70,000 e-mails were “found” last week, 12,000 of which were sent or received by the witness from Virgin whose evidence was central to the case. One at least of the disclosed e-mails appeared to undermine the prosecution’s own case. Production of the rest within the timescale ordered by the judge proved logistically impossible.

I put “found” in quotation marks, because it appears that the OFT knew at least that the documents existed – it is claimed that the files containing the e-mails were corrupted. This differs from reasons which have appeared in the civil cases we have seen recently, such as Shoesmith v Ofsted (inadequate search), Earles v Barclays (too much trouble to look) and Al-Sweady v Secretary of State for Defence (utter shambles). See my article Al-Sweady v Secretary of State for Defence: blame for e-Disclosure failures gets personal – and public which has links to all these cases.

What I cannot deduce from the reports which I have seen is whether the OFT disclosed the existence of the files in their corrupted state or simply kept quiet about them. The duty of candour in these circumstances, in criminal and civil proceedings alike, requires the disclosure of documents even if it is thought that they are impossible to access. The questionnaire annexed to Master Whitaker’s judgment in Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) (05 November 2009)  includes the following question:

Are any documents which may be disclosable encrypted, password-protected or for other reasons difficult to access, or do you have any reason to believe that they may be?  If so, state … your proposals for making them accessible.

Although the Questionnaire was devised for disclosure under the Civil Procedure Rules, there is a strong case for its use in both criminal and regulatory matters. At the least, it serves as a simple check-list, whether used to flush information out of opponents or simply to ensure that one’s own disclosure is complete.

The Reuters story contains little information but I deduce, perhaps wrongly, that the OFT simply failed to refer to the documents at all. If those representing the Crown think this an unfair deduction, they cannot blame us for assuming the worst of their conduct having regard to the recent history of government disclosure at least in civil proceedings. Difficult-to-access files are a fact of life and there are a few companies with expertise in this technical area. Expertise in the basic principles of disclosure is not an esoteric skill if that kind, but should be the default amongst those who purport to conduct civil or criminal proceedings.

My thanks to Mike Taylor of i-Lit and to Dominic Regan for drawing my attention to this story.

Home