Fox & Ors, R v [2009] NICC 30 (24 April 2009)

Fox & Ors, R v [2009] NICC 30 (24 April 2009)

The redacted material sought from BOS is not material to the defence because it was not known to any decision maker (human or automated) in relation to the charges, and therefore could not have affected the decision to grant loans or credit. The application for disclosure of the remaining disputed material is refused.

Citation
[2009] NICC 30
Parties
Prosecution: The Queen; Defendant: Anthony Michael Fox; Defendant: Kathleen Bridget Fox; Defendant: Richard Thomas Fox; Defendant: Thomas Fox; Defendant: Patrick Francis Markey; Defendant: Leonard Henry Warwick; Third Party Respondent: Bank of Scotland plc (BOS); Third Party Respondent: First Trust Bank; Third Party Respondent: Bradford and Bingley plc; Third Party Respondent: MBNA Europe Bank Ltd
Jurisdiction
Northern Ireland
Judgment Date
24 April 2009
Procedural Posture
Criminal / Interlocutory Application for Third Party Disclosure
Outcome
application for disclosure refused as to disputed BOS material; guidance given for future applications; directions for further representations and safeguarding confidentiality
Legal Topics
Third Party Disclosure, Material Evidence, Commercial Confidentiality, Public Interest Immunity, Deception Offences, Mortgage Fraud
Criminal Law Evidence Banking Law Third Party Disclosure Material Evidence Commercial Confidentiality Public Interest Immunity Deception Offences +1 more

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Parties

The Queen

Prosecution

Anthony Michael Fox

Defendant

Kathleen Bridget Fox

Defendant

Richard Thomas Fox

Defendant

Thomas Fox

Defendant

Patrick Francis Markey

Defendant

Leonard Henry Warwick

Defendant

Bank of Scotland plc (BOS)

Third Party Respondent

First Trust Bank

Third Party Respondent

Bradford and Bingley plc

Third Party Respondent

MBNA Europe Bank Ltd

Third Party Respondent

Procedural Posture

Criminal / Interlocutory Application for Third Party Disclosure

Legal Issues

  1. 1 Whether the defendant is entitled to third party disclosure from banks and financial institutions under Section 51A of the Judicature (Northern Ireland) Act 1978.
  2. 2 Whether the redacted material from Bank of Scotland (BOS) is material to the defence and should be disclosed despite claims of commercial confidentiality.
  3. 3 Whether a misrepresentation can amount to a deception of an automated decision-making system.

Ratio Decidendi

The redacted material sought from BOS is not material to the defence because it was not known to any decision maker (human or automated) in relation to the charges, and therefore could not have affected the decision to grant loans or credit. The application for disclosure of the remaining disputed material is refused.

Court Disposition

application for disclosure refused as to disputed BOS material; guidance given for future applications; directions for further representations and safeguarding confidentiality

Orders

  • Application for disclosure of remaining disputed BOS material refused.
  • Any information disclosed by BOS to the defendant may only be considered by the defendant's legal advisers and expert witnesses, not to be disclosed to the defendant or others without further court order.