Crown Prosecution Service RASSO and SOC prosecutors: 11 January 2024
Published 30 April 2024
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These are the personal experiences and views of practitioners and are therefore not necessarily reflective of the organisational wide assessment of disclosure.
RASSO: Rape and Serious Sexual Offences
SOC: Serious and Organised Crime
Introduction
The Chair of the Review, Jonathan Fisher KC, summarised the terms of reference and scope of the Review. He noted the importance of hearing first hand, from investigators, prosecutors, and practitioners, who uphold the disclosure regime.
Discussion
Criminal Prosecution and Investigations Act 1996 (CPIA)
1. Prosecutors were consistent in stating their view that the problem is not with the legislation itself but with its application, which has become challenging in cases with large volumes of digital material.
Digital Material
2. Participants noted that digital material is a particular concern, especially in rape and serious sexual offences (RASSO) and serious fraud cases where there is a large amount of material on numerous mobile phones to deal with. It was highlighted that this can be made worse when investigators do not have a clear disclosure strategy at the outset, which leads to large volumes of material being seized.
Third Party Material
3. Participants highlighted the importance of making relevant requests for third-party material, which can limit volumes of material. Early engagement between the investigator and prosecutor would support this.
Early Engagement
4. When discussing the idea of early defence engagement to support the identification of material to assist the defence, there was an agreement that bringing this engagement forward could make a positive difference to the process that currently stands.
5. It was noted that early engagement would help identify reasonable lines of inquiry and narrow down the issues in a case to assist with the identification of relevant material.
6. Participants noted that the defence often does not stick to the timetable provided to submit a defence case statement, highlighting that this usually happens very close to the trial date with no repercussions. Early engagement and a timely defence case statement can help narrow down the issues in a case. Participants expressed the view 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.
Training and Resource
7. There was some concern expressed around the lack of adequate training provided to police officers paired with the challenge of a lack of experience. It was raised that this is an issue seen in RASSO cases where an increasing number are being dealt with by non-specialist officers. Issues then arise when schedules need completing, training is often forgotten as they do not have frequent practice at scheduling, and there is a lack of understanding as to what should or should not be logged.
8. It was noted that alongside a lack of training another issue that is frequently presented is the lack of resource available and this is seen across the board.
9. There are also challenges around ensuring investigators and prosecutors have the expertise and resource to comply with disclosure obligations in the magistrates’ courts.
Technology
10. The role of technology and artificial intelligence (AI) being used to assist with managing disclosure obligations in relation to large volumes of material was discussed. Participants shared the view that new technologies have a role to play in facilitating decisions, but not in making them. The ambition to utilise new technologies should therefore primarily be aimed at increasing efficiency so that cases are progressed in a timely and effective manner.
11. Participants agreed that the use of certain tools could provide help with tasks such as redaction and scheduling. It was mentioned that although it is currently in its early stages, the police are trialling some AI tools that could help with redaction.
Keys to the Warehouse
12. When discussing a ‘keys to the warehouse’ approach some participants raised that they have experienced instances where judges have ordered it in relation to digital material. This included downloads of mobile phones and communication data. However, it was noted in a recent RASSO case, that this required careful redaction to ensure no personal or sensitive information was disclosed. Participants also noted that judges’ approaches when ordering the keys to the warehouse do vary.
13. There was an overall agreement that a keys to the warehouse approach is not desirable. It was mentioned that handing over all material to the defence would not remove the need for law enforcement and prosecutors to consider that material and therefore it would not make the system more efficient.