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The Bar Council: 7 December 2023 and 14 March 2024

Published 30 April 2024

These are the personal experiences and views of practitioners and are therefore not necessarily reflected in the views of all members of the Bar Council.

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 also gave an overview of the emerging findings from the review.

Discussion

Disclosure and the Criminal Procedure and Investigations Act (1996) framework

1. There was a consensus that the CPIA framework works well but issues arise in its application and when parties fail to understand their legislative obligations. It was suggested that the current regime lacks the flexibility to deal with a range of case types. It was also suggested that there is ambiguity in the legislation, such as section 5^{[footnote 1]} which requires defence disclosure where a prosecutor “purports to comply”.

2. This lack of clarity also applies to guidance on schedules for unused material, which members felt often lacked the necessary detail needed for the prosecutor to make an informed decision on disclosure. Members also noted that there exists a plurality of guidance, in addition to the Code of Practice, which has increased confusion. This is evident in the contradictory guidance on block listing. It was noted that whilst there will necessarily be a degree of ambiguity and subjectivity in practice, decisions ought to be guided by case law.

3. Participants critiqued the interpretation often applied to the relevancy test, which was felt to often result in investigators wrongly considering significant material as irrelevant, or at times almost all material as relevant, instead of thinking more critically.

4. Participants also noted a wider cultural issue within investigative practices that tends to omit material that may be detrimental to the prosecution’s case or benefit the defendant’s case. It was suggested changing culture starts with grass-roots training.

Early Disclosure Hearings

5. In discussing the merits of an early disclosure hearing, it was noted that the prosecution is significantly burdened by disclosure and may be unable to prepare for additional engagement without a greater priority placed on better resourcing. It was also suggested that the defendant is unlikely to engage in an exercise in which the prosecution has not defined the criminal charges that they are investigating.

6. It was further noted that whilst the prosecution may be able to narrow down their charges, purpose of defence engagement is often to identify what it considers to be an impermissibly narrow approach to CPIA relevance by the investigation, which if recognised as correct at that time may result in broadening the scope of the material to be obtained by the investigation. There will be a small subset of cases in which the defendant is able to point to a single piece of exonerating evidence. However, in most cases, the defendants’ engagement is likely to identify that it considers is necessary for the prosecution to broaden the scope of the material to be obtained by the investigation rather than reduce it. It was noted that a benefit of early engagement for the defence is that they can influence the decision to charge as well as the nature of the charge.

7. However, concern was raised that this could lead to a disparity in outcomes as those willing to engage early on are likely to be privately funding their defence, with a team that has the resources to do so, as opposed to legal aid funded cases. It was noted that both sides will need sufficient funding to engage in a disclosure hearing. Additionally, the decision to not engage early on could draw negative inference. This is further complicated by the right of the defence to not participate in any dialogue that has the potential to incriminate them. However, it was also noted that judges are unlikely to draw adverse inference from silence as the defendant has a right to silence.

8. It was stressed that in cases, such as serious fraud, with large volumes of material, it is imperative that the prosecution begins the disclosure process immediately. There was also concern that there are not the same resources available to engage in disclosure for rape and serious sexual assault cases.

9. Specific concern was raised over the use of the Preparation for Effective Trials forms which are a prerequisite for Magistrates Court trials. It is noted that defence is obliged to fill in these forms, often without seeing the broader evidence obtained by the Police. Once completed, it is difficult to deviate from the form, even in light of new evidence.

Technology and Artificial Intelligence (AI)

10. In the context of recent high-profile cases, participants noted that although AI has the potential to streamline disclosure, such tools must also gain the confidence of the criminal justice system. It was suggested that such a tool may assist in the better sharing of material between prosecution and defence inviting a future conversation on the ‘keys to the warehouse’ approach.

11. Members highlighted that the electronic platform through which material is sent from the police to the Crown Prosecution Service (CPS), is separate from that which the CPS uses to disclose material to the defence and the court. These separate systems create confusion as often officers wrongly believe that material has been served as part of the prosecution’s case because it was delivered to CPS but was not subsequently sent on to the defence. The disclosure officer has no visibility of these issues.

Keys to the Warehouse approach, Data Protection and Third-Party Material

12. Discussing the ‘keys to the warehouse’ approach, there was a suggestion that the defendant should be granted access to the material that was in their own possession during the period of indictment. The suggestion to expand the categories of rebuttal presumption would allow them to view the material in its proper context. It was suggested that prosecution disclosure can often happen late in a case. It was agreed that ‘keys to the warehouse’ terminology is not helpful when describing the process of granting someone access to their own material.

13. There was a consensus that the application of General Data Protection Regulation is leading to the over redaction of material. There was recognition that rape and serious sexual offence (RASSO) cases hold particular data protection requirements and risks.

14. There was concern that the current regime forces the defence to search for material and this can be challenging in complex in serious fraud cases with third party material. It was suggested that issues also arise in RASSO cases.

1. CPIA Section 5 https://www.legislation.gov.uk/ukpga/1996/25/section/5 ↩