Transparency data

Law Society and members: 8 December 2023, 24 January 2024 and 6 March 2024

Published 30 April 2024

These are the personal experiences and views of practitioners and therefore do not necessarily reflect the views of the Law Society as a representative body.

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 Procedure and Investigations Act 1996 (CPIA)

1. There was broad consensus that the underlying principles of the CPIA are correct and reflect the ideals of justice and fairness, however, participants considered that the real-world application is where the failures are arising. A minority were of the view that the CPIA is not fit for purpose.

Magistrates’ and Crown Courts

2. It was agreed that the CPIA is not working as intended in both the magistrates’ courts and in complex Crown Court cases. It was suggested that the rise in digital material is not a primary reason for the challenges that have arisen. Some were of the view that the courts are too lenient with regard to law enforcement failings due to sympathy for lack of resource.

3. Members identified problems with communication between the police and Crown Prosecution Service (CPS) and noted that in contrast to Crown Court cases, there is no single CPS contact for magistrates’ court cases.

Cultural Issues

4. In turn, it was suggested that law enforcement have become used to being ‘bailed out’ by courts for disclosure failings, which leads to the persistence of a poor disclosure culture. Such law enforcement disclosure errors, it was suggested, are largely a result of negligence but not bad faith. Frequent turnover of law enforcement staff may also further exacerbate problems.

5. More broadly, it was noted that some law enforcement officers see complainants as victims, and therefore do not fully embrace their roles as ‘fact finders’ within the criminal justice system. It was suggested that this can impact the way material, evidence and disclosure is subsequently viewed. It was agreed that, in rape and serious sexual offences (RASSO) cases, given the adversarial nature of the English and Welsh criminal justice system, the disclosure pendulum will almost never be in a satisfactory position for all parties.

6. Others noted that when law enforcement agencies properly resource disclosure, and officers and a have clearer strategy from the genesis of the case, the disclosure regime can be made to work effectively.

7. Members noted that the CPS has raised concerns over the quality of police data and training.

Keys to the Warehouse

8. Keys to the warehouse was suggested as an alternative disclosure model, although it was noted that implementing such an approach for RASSO cases may be challenging due to data protection and privacy concerns. It was offered that cost is the main argument against the return to keys to the warehouse.

9. Alternatively, some had a negative view of the prosecution handing over large volumes of digital material and it was suggested that not all defence firms have the time, resource or funding to deal with it.

Defence and Prosecution Engagement

10. Despite a diversity of views, it was agreed that prosecution and defence engagement is a two-way street. It was suggested that the defence cannot be asked to meaningfully engage with the prosecution without sufficient time and knowledge of the charges being brought and details of the case.

11. There was concern that engaging with the prosecution could be seen as the suspect assisting the prosecution in their duty to bring and prove the case. It was proposed that the defence could be incentivised to better engage if the process of disclosure was divorced from the requirement to provide a defence case statement.

12. It was noted that pre-charge engagement is unlikely for the majority of cases as solicitors are often appointed quite late on and have not had the time to consider the case. Another concern raised was that the investigators would have substantially more time to build a case as opposed to the defence which will have little time to review the case for pre-charge engagement.

13. There was concern that there was a lack of engagement from the prosecution.

Early Disclosure Hearing

14. It was also noted that the police and CPS do not have the resources for early engagement.

15. A further concern raised was that those who are privately funded may be able to engage with early disclosure hearings, whilst those on legal aid will not be funded to engage to the same extent.

Technology

16. It was agreed that although technology and artificial intelligence will form some part of the solution to disclosure, comprehensive tools are still some years away. Regarding ethics, there were reflections on the need to avoid repeating single platform technology solution failures, such as Fujitsu’s Horizon, that have resulted in serious miscarriages of justice. It was agreed that disclosure requires judgement and therefore some form of human input.

17. There was also some concern that the police utilise a different software system from that of the CPS and defence.