Judicial Office Judicial Subgroup: 30 January 2024
Published 30 April 2024
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These are the personal experiences and views of the judges interviewed and are therefore not necessarily reflective of wider judicial views.
Introduction
The Chair of the Review, Jonathan Fisher KC, summarised the terms of reference and explained the scope of the Review. He outlined the themes emerging from the Review’s engagement.
Discussion
Criminal Investigations and Prosecutions Act 1996 (CPIA)
1. The discussion began with reflections on the efficacy and application of the CPIA in today’s digital age. The consensus of the judicial subgroup was that the basic test and the structure of the disclosure regime was sound; the difficulty arose in its practical application and a lack of engagement by the parties and the court.
2. It was also suggested that the definition of relevance, as it stands would benefit from exploration. Participants considered that it may be too wide as a result of its reliance on the terminology on ‘some bearing’, drawn from the Attorney General’s Guidelines.
3. It was observed that there was too much guidance not all of which was consistent and that this should be streamlined. Thought might also be given to guidance in relation to Disclosure Management Documents. It was felt that there was less frequent difficulty in RASSO cases but that these cases might benefit from clear guidance in relation to medical, counselling and telephone / social media material.
Digital Material
4. Participants discussed the growth of digital material and it was observed that there are significant problems relating to volume can be encountered when law enforcement seize both servers and digital devices. The problem is notably prevalent in large fraud cases.
5. The Judicial Subgroup did not favour a ‘keys to the warehouse’ approach for reasons which were discussed.
Technology
6. Participants were supportive of the idea of looking at technology and artificial intelligence (AI) as a support tool. It was agreed it that AI would be particularly helpful applying search terms and providing a more detailed search. It was recognised that the current challenge is that humans make mistakes which result in disclosure failings, which have the potential to impact large cases significant. Technology has the potential to reduce risk and burden.
Defence Engagement
7. Participants supported greater defence engagement from the outset. However, it was noted that options for sanctions for non-compliance are limited. The reasons for a lack of early engagement were discussed. In some cases, the defence might decide that it was not in their interests, in other cases it might be that the prosecution had not disclosed sufficient material for the defence to take instructions. It was felt that the prosecution could do more in terms of disclosure management documents, scrutiny of defence statements and application of Section 8.
8. The issue of timings of disclosure, defence statements and requests for disclosure were discussed and whether late disclosure/applications should require explanation to the Court and only be granted in exceptional circumstances.
Resource and Training
9. It was highlighted that across law enforcement lack of resource is a significant issue at present, which often results in inexperienced officers being tasked with disclosure work.
Courts
10. Participants mentioned that judges could get more involved in case management. It was suggested that having a specific disclosure hearing at an early stage is worth considering, alongside better use of case management hearings. This will allow cases to be managed at an early hearing, with the presumption that will be further hearings, as needed, with a judge and both parties.
11. It was considered that this would give judges the chance to encourage parties to reach a mutually acceptable resolution. Alternatively, it was suggested that there could be a nominated disclosure judge at the outset of a case. However, it was recognised that these alternatives would require more judicial preparation time and resource to be effective.
Reasonable lines of Inquiry
12. It was agreed that the issue of proportionality is worth considering as part of the Review.