Transparency data

Crown Prosecution Service: 1 February 2024

Published 30 April 2024

Introduction

The Chair of the Review, Jonathan Fisher KC, summarised the Review’s terms of reference, scope and emerging findings.

Discussion

The discussion covered the following topics:

Criminal Procedure and Investigations Act 1996 (CPIA)

1. It was suggested the CPIA framework is the right conceptual framework but in practice, it is not working as intended.

2. It was suggested that the legislation could be updated to apply proportionality in relation to the identification of relevant digital material, from case law onto a statutory footing.

3. There has been a deviation from the CPIA, as amended in the Criminal Justice Act 2003 and case law interpretation, particularly in regard to the relevance test and the introduction of a sense of proportionality. It was noted that in the English and Welsh criminal justice system, the prosecution has a unique role in upholding justice by bringing and proving a case.

Early engagement

4. There was recognition that, over the past 20 years, the direction of travel in the criminal justice system has been towards promoting greater engagement between the prosecution and defence, in the hope of focusing on the real issue in a case.

5. It was noted that there are several reasons why such engagement has failed to take place in the frequency and depth envisioned by CPIA drafters and former Reviewers. Defence remuneration for pre-charge engagement has been made available through the Legal Aid Agency but is yet to be utilised at rates initially modelled.

6. It was stated that a new digital disclosure practice direction, under Part 15 of the Criminal Procedure Rules, may assist the courts in resetting the culture around engagement and case management in relation to disclosure.

Digital Material & Technology

7. It was stated that significant volumes of material in an investigation have knock on impacts for the prosecution and can often become a significant draw on resource.

8. It was also noted that increasing volumes of digital material impact volume criminal cases passing through the magistrates’ courts, as defendants are increasingly likely to own multiple electronic devices. It was suggested that there is a disparity in the ability of a police force to access digital forensic labs, analytical software and tools. It is important to ensure investigators and prosecutors have the right technological tools to do the job as well as be sufficiently trained in how to utilise these. It was also noted that as each law enforcement agency procures its own technological solutions, the interoperability throughout the system is low and creates its own unique set of challenges when trying to share information and material between investigators and prosecutors.

9. It was suggested that some private practice defence firms are proactive in being early adopters of advanced technology and artificial intelligence used in the disclosure and material review process. There was a desire to ensure the Crown Prosecution Service keeps abreast of emerging and cost-effective technology.

Scheduling

10. Learning from other jurisdictions, there was discussion regarding the effectiveness of traditional scheduling for complex cases and whether there are more innovative ways of providing such information to the court and defence.

Keys to the Warehouse

11. It was agreed that a blanket ‘keys to the warehouse’ approach for all crime types is unlikely to work. It was noted, however, that Section 21 of the Police and Criminal Evidence Act 1984 (PACE) includes a provision regarding the handing back of seized material to a defendant. There was a discussion on how this interacts with CPIA disclosure obligations, with a view to reducing the scheduling and redaction burden on law enforcement. Drawbacks to this approach were discussed.

Judiciary

12. It was suggested that prosecutors are keen to work with the courts to reset the culture around the disclosure process to facilitate greater engagement between the prosecution and defence. It was suggested that a new digital disclosure practice direction may assist in this regard.

Learning and Training

13. It was agreed that every investigator and prosecutor need to be sufficiently trained to understand the importance of disclosure within the context of their role. The idea of learning accreditation for disclosure officers who wish to specialise further was discussed. It was noted that there would also need to be broader training and consistency for all forces, which is not limited to a specific accreditation cohort.