Surveillance: Evidence not disclosed for several years
A senior criminal law KC has failed in an appeal against a year-long suspension imposed for his decision not to disclose surveillance evidence which ultimately led to a conviction being overturned.
The High Court held that Timothy Raggatt KC made the decision in his role as leading counsel of the prosecution team.
“It was his decision and he must take responsibility for it,” said Lady Justice Nicola Davies and Mrs Justice Farbey in their joint ruling. “Whether or not it was supported by others in the team cannot detract from that fact.”
Mr Raggatt was called in 1972 and was head of chambers at 4 King’s Bench Walk for 19 years to 2020.
Last year, a Bar disciplinary tribunal decided that he damaged trust in the profession and recklessly misled the court during his conduct of the prosecution of Conrad Jones, who was sentenced in 2007 to 12 years for perverting the course of justice.
The conviction was quashed by the Court of Appeal in 2014 after the surveillance material was disclosed a year earlier. Lord Justice Pitchford described it as “a lamentable failure of the prosecutor’s obligations”.
Mr Jones complained to the Bar Standards Board (BSB) in 2015.
The tribunal found that Mr Raggatt decided, together with others in the prosecution team, and/or advised the Crown Prosecution Service, not to disclose the existence of the material which he knew, or ought to have known, supported the defendant’s alibi evidence and which undermined the evidence of one of the leading prosecution witnesses.
In a second finding, the tribunal said the silk told the court that a meeting could have taken place in Nottingham between the defendant and the witness at a particular time when he knew the surveillance material showed it was not possible.
He was given suspensions of 12 months and three months on each charge, to run concurrently.
Mr Raggatt submitted 31 grounds of appeal formulated into 10 main grounds, arguing both procedural and substantive points.
Among them was that the tribunal ought to have concluded that a fair trial was not possible given the length of time since the events under scrutiny.
In 2020, His Honour Judge Jonathan Carroll, sitting as a ‘directions judge’ in the tribunal, rejected Mr Raggatt’s bid to strike out the case on that basis, finding the delays were due to both the BSB and the KC’s conduct of the proceedings.
The High Court held that HHJ Carroll was entitled to conclude that the BSB could fairly and properly bring charges on the basis of the available documentary evidence.
“The tribunal was thereafter entitled to hear and determine the proceedings on the basis of the documentary evidence before it and on the basis of the appellant’s own evidence. That is what it did…
“In summary, there was nothing about the age or nature of the evidence that made the proceedings unfair.”
There was, the court went on, “a sound evidential basis for the tribunal to make findings to the criminal standard in respect of the appellant’s knowledge of, advice and any decision in respect of the relevant surveillance material”.
The fact that two of the five members of the tribunal panel had to drop out during the proceedings did not affect the fairness of its decision. The main distinction between a five- and three-person panel was the range of sanctions the latter could impose, the most being a year-long suspension.
“We are unimpressed by the proposition that the fairness of the proceedings depended on the size of the panel.”
The court heard that the tribunal chair intervened hundreds of times during the BSB counsel’s cross-examination of Mr Raggatt and the closing submissions made on his behalf by Graeme McPherson KC.
“We are not persuaded that the interventions were excessive such that they rendered the hearing unfair,” it said. Mr McPherson was “able to engage with the chair on the nature and extent of the interventions” and Mr Raggatt had “no difficulty in giving his answers”.
It went on: “We have some sympathy with the chair’s endeavours to ensure that the appellant gave full answers to key questions.
“Not least, the appellant fell back on the content of his witness statements on numerous occasions and appears to have shown a repeated reluctance to enter into further detail. The chair was entitled in the circumstances to seek to draw out his evidence away from the statement and towards the specific questions on which his oral evidence was sought.”
In also dismissing the appeal against the suspension, the court observed that it was “curious” how paragraph 6.35 of the sanctions guidance introduced last year allowed disbarment but not suspension for cases of misconduct that undermined public confidence in the profession.
“We are unable to discern any good reason for such an approach. We have been presented with no explanation for the distinction between disbarment and suspension in this regard.”
It added: “No purpose would be served by repeating the tribunal’s assessment of the seriousness of the misconduct, the harm caused, and the appellant’s lack of insight into his own actions – with which we agree.
“The tribunal was entitled to conclude that these factors outweighed his highly exceptional character references, the passing of time and other undoubtedly strong mitigating factors. The sanction was neither excessive nor disproportionate. There are no grounds for this court to interfere.”
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