Transparency data

Practitioners’ Advisory Panel, session 2: 5 March 2024

Published 30 April 2024

Members

Chair

• Jonathan Fisher KC

Practitioners

• Faras Baloch – Red Lion Chambers
• Jane Bewsey KC – Red Lion Chambers
• John Binns – BCL Solicitors LLP
• Cameron Brown KC – Red Lion Chambers
• Mark Fenhalls KC – 23 Essex Street Chambers
• Patrick Gibbs KC – Three Raymond Buildings Chambers
• David Green KC – Cohen & Gresser – Former Director SFO
• Rebecca Hadgett – Three Raymond Buildings Chambers
• Sue Hawley – Spotlight
• Sir Max Hill KCB KC – Red Lion Chambers – Former Director of Public Prosecutions
• Louise Hodges – Kingsley Napley
• Riel Karmy-Jones KC – Red Lion Chambers
• Lord Ken Macdonald KC – Matrix Chambers – Former Director of Public Prosecutions
• Ailsa McKeon – 6KBW
• Alun Milford – Kingsley Napley
• Clare Montgomery KC – Matrix Chambers
• David Ormerod CBE – University College London
• Amanda Pinto KC – 33 Chancery Lane
• Fiona Rutherford – JUSTICE
• Alison Saunders DCB – Linklaters - Former Director of Public Prosecutions
• Antony Shaw KC – Red Lion Chambers
• Ian Winter KC – Cloth Fair Chambers

Junior Counsel

• Anita Clifford – Red Lion Chambers
• Alex Davidson – 2 Bedford Row Chambers

Officials: Secretariat  

Introduction

The Chair of the Review, Jonathan Fisher KC, summarised the terms of reference and explained the scope of the Review. He highlighted the importance of hearing first hand, from investigators, prosecutors, and practitioners, who operate the disclosure regime. The Chair invited comments on the Review’s emerging findings, which were sent to panel members prior to the meeting.  

Discussion      

A flexible regime

1. There was a consensus that a single rigid disclosure regime may be unable to effectively cover the full gamut of criminal cases and associated inherent differences. Instead, an emphasis was placed on aiming for a more flexible system.

Training

2. Panellists felt that there was not enough training for police officers on their specific roles within the wider criminal justice system. There was concern that investigators did not appreciate their fact-finding obligations and particularly the duty to follow all reasonable lines of inquiry.

3. More specifically, it was suggested that there is a lack of training, or ineffective delivery methods, for the Criminal Procedure and Investigations Act 1996 (CPIA) and disclosure specific training for officers. This is leading to inexperienced officers being unaware of how the CPIA works, further exacerbating cultural issues, including a general lack of motivation for officers to take on disclosure roles. Limited resources were identified as a challenge. It was agreed that officers need to routinely use and apply their CPIA training, in order to maintain their knowledge of disclosure obligations

4. One panellist suggested that disclosure operates more efficiently in the private sector and that the state should pay whatever is required, to properly deliver disclosure. Some panellists disagreed with this view. However, there was a consensus that the public sector should be leading by example and that the proper resourcing of disclosure is of paramount importance.

Early Engagement

5. Members considered that there needs to be a better case management system. It was noted that it is challenging for defence teams to meaningfully engage with early engagement, without first having sufficient sight of case details.

6. In considering the merits of having a dedicated disclosure hearing, it was agreed that such a hearing would only be appropriate for particularly complex criminal cases. It was suggested that such engagement is important as it can be used to crystalise the key issues and eliminate trivial lines of inquiry.

7. One of the panellists noted that a key benefit of a dedicated disclosure hearing would be to empower the judge to evaluate the prosecution’s approach to disclosure and whether it is reasonable. It was emphasised that prosecution engagement is key to the effective discharge of the case.

8. In contrast, there was also concern about the burden an additional hearing would place on already limited court capacity. There was disagreement between panellists over whether this would increase or reduce the burden on the courts. It was noted that courts were already struggling with judicial capacity.

9. One panellist questioned whether an early disclosure hearing is needed as the disclosure management document should already be setting out the case. They felt that the Disclosure Management Document functions effectively in larger cases and the current structures would benefit from further judicial oversight. It was suggested that further evidence is required to determine how effective an additional disclosure hearing could be.

10. From a defence perspective, it was explained that defendants will have varying levels of capability to engage with the disclosure process and that this can be complicated by insufficient information about the substance of the prosecution’s case early on in proceedings. It was noted that requests for early engagement mostly arise in larger cases but there may not always be sufficient funding, particularly for legal aid cases, to support this.

11. The difference in resources between legally aided defendants and privately funded ones is likely to create an inequality of arms, that will be exacerbated in cases where defendants are unrepresented.

12. A panellist also raised a concern that there may be constitutional issues in compelling the defence to engage with the investigation. Another member recognised this but maintained that in larger cases if you wait until the charge is put it is often too late to benefit from any early disclosure. It was also noted that there is already an expectation of some defence engagement, set out in the Attorney General’s Guidance and Criminal Procedure (Amendment Rules) 2024[1].

13. It was also suggested that such a hearing should be substantively different from simply receiving a preliminary defence statement. One panellist suggested that an early disclosure hearing for complex cases should be on the basis of need and not a mandatory one.

14. It was noted that the prosecution may favour early disclosure hearings due to the adversarial nature of the system. The prosecution was seen to have an advantage as have had significantly more time to review the material whilst building the case. The defence, however, has significantly less time to review material.

15. The panellists also considered the idea of limiting CPIA Section 8 applications by setting specific time limits and agreed that flexibility would be required to make this approach work. The success of early engagement would also rely on regular and consistent communication between the prosecution and defence in advance of a disclosure hearing.

Technology and Artificial Intelligence (AI)

16. It was agreed that significant interoperability issues have been created because of the variety of technological investigation and disclosure platforms used across police forces and law enforcement agencies. There was a discussion as to the benefits of moving towards a more interoperable system, which may in turn assist with material analysis and disclosure accuracy.

17. There was agreement that current flexibility allows each agency and force to procure technological tools that best suit the types of criminal cases dealt with. In light of the Post Office Horizon cases, it was noted that single system solutions can create risks.

18. The benefits of using AI to streamline and increase the accuracy of disclosure were recognised. It was agreed that the roll out of AI disclosure assistance tools but also be matched with a full programme of training for those officers who will use such tools. It was also agreed that AI tools would only be of benefit if the criminal justice system has confidence in them. Some members of the panel felt that there is currently insufficient funding going towards acquiring AI technology to support disclosure. It was noted that there is no consistent guidance for the use of AI tools across law enforcement

Relevancy Test

19. Further concerns were raised about the width of the current relevance test.  There was a suggestion that the prosecution could set out, at an early stage, a broad summary of the seized material and work with the defence to reduce the number of documents requiring review. After setting out their summary, the prosecution could then focus their investigation on what had been agreed as the main lines of inquiry. A panellist noted that the definition of “reasonable lines” often leads to investigators probing for additional material without a sense of direction.