Transparency data

Justice academics’ roundtable: 12 March 2024 (accessible version)

Updated 20 August 2024

Introduction

(Please note that this introduction was used for all roundtables)

The host welcomed all participants to the roundtable and introduced the Chair of the Independent Review, Jonathan Fisher KC. The aims and terms of reference of the Review were summarised: the Review aimed to understand whether the CPIA was working or not and, if not, in what respect. The bottom-up engagement approach taken by the Review was also set out.

Attendees

Chair: Jonathan Fisher KC

Host: Tyrone Steele - Deputy Legal Director, JUSTICE

Rebecca Crump - Cardiff University

Dr Cerian Griffiths - Northumbria University

Dr Ed Johnson - University of Northampton Professor

Michael Levi - Cardiff University

Dr Hannah Quirk - Kings College London

Anita Clifford – Barrister, Red Lion Chambers

Alex Davidson – Barrister, 2 Bedford Row

Home Office Officials

1. The topic for discussion was introduced. In summarising what the review had previously heard the following key points were made. First, there were few criticisms of the CPIA itself and its structure; there was little enthusiasm for redesigning the legislation from scratch. Second, both prosecution and defence practitioners were keen to achieve engagement early on in the disclosure process, including by means of pre-charge engagement. Third, it was felt that whilst technology was useful it would not be able to solve all problems which fell to be addressed.

2. The Review was very interested in speaking to academics about some of the proposals being put forward in relation to early engagement. Another area pertinent for academics was the availability of sanctions, for example a temporal limit on the availability of section 8 CPIA^{[footnote 1]} applications. It was noted that some had proposed even stronger sanctions, such as adverse inferences and cost orders.

3. The Review has also heard support for the idea of a disclosure hearing at an early stage in proceedings. At this hearing, judges would be invited to consider what the prosecution had to say about its approach to disclosure and the response of the defence. The defence would also be able to outline the key aspects of the defence relied upon in sufficient detail to allow certain decisions to be made (such as which reasonable lines of inquiry ought to be pursued). The judge would be able to set directions as to how the disclosure process would proceed and under what time limits.

Early disclosure hearings/ non-engagement

4. Participants began the discussion with a consideration of how the defence might respond to the opportunity of early disclosure hearings. Would such hearings be seen, for example, as a means of mitigating charges or of resolving the case? What were the incentives for different actors in the system? It was suggested that those contemplating pleading guilty might be receptive to an early disclosure hearing. There was also an advantage to the defence in hearing the prosecution lay out its case early on and to have an opportunity to press on disclosure issues. However, the question still remained as to how to deal with defendants who refused to cooperate.

5. It was thought that early engagement was good from a case management point of view but could be problematic given that it is for the prosecution to prove guilt. Specifically, it arguably contravened the presumption of innocence for the defendant to have to put their case forward.

6. It was observed that there are no issues with the architecture of the CPIA itself. However, disclosure is only as good as the party carrying out the process. Discomfort was expressed at the blame for disclosure failings being placed on defence non-engagement. Experience showed that often the fault lay with prosecution delays with completing disclosure, and the difficulty in contacting those responsible.

7. It was suggested that sanctions for non-engagement must therefore be across the board, and there should be equality of sanctions between the prosecution and defence. Sanctions were being unequally applied and it was necessary to think about the culture of the trial. It was difficult to envisage what sanctions for the prosecution in relation to disclosure failures could look like, other than a stay of proceedings. Costs were suggested as a possible option. Another suggestion was a reduction in sentence in the event of a conviction. Concern was expressed that further sanctions would penalise people for things beyond their control. It was also noted that judges tend not to sanction the prosecution for disclosure failings, and there is a culture that things need to ‘keep moving along’. Some participants also observed that the Court of Appeal can be unsympathetic to disclosure failures and that there is a high bar for convictions to be overturned.

8. Further, introducing an additional hearing in magistrates’ court cases added expenses to counsel who might be working for a fixed fee and so not paid for attending that hearing. Any proposals need to be funded.

The ‘keys to the warehouse’ approach

9. Discussion then turned to who should take on responsibility for disclosure. Participants were invited to contribute views on whether the system should return to the ‘keys to the warehouse’ approach. It was suggested that practitioners tend to deal with ‘what is in front of them’ and are less keen to consider bigger questions about ethics and the right to silence, for example. One of the reasons that the issue of disclosure was being tied to fraud was that disclosure is much easier to manage in fraud cases. The ‘keys to the warehouse’ approach is much easier to implement now than when cases were dealt with non-electronically.

10. It was observed that the ‘keys to the warehouse’ approach might work well in financial crime cases where material is not particularly sensitive, however, the same might not apply to a sexual assault case. There was concern around complainants being discouraged from coming forward for this reason. Again, it was noted that perhaps a regime specific to fraud cases would be appropriate.

11. Some participants were of the view that the ‘keys to the warehouse’ approach appears to be working well in Hong Kong. Generally, lawyers there are happy with their disclosure regime, notwithstanding issues on timeliness and police understanding. There was a smaller volume of cases in Hong Kong as compared to London, but nonetheless participants were not convinced that the ‘keys to the warehouse’ approach ought to be discarded. In England and Wales, more training for police officers and prosecutors is required – there were issues in relation to incomplete disclosure.

12. Concerns were, however, expressed about whether legally aided defendants would have the resources to deal with disclosure under a ‘keys to the warehouse’ system.

13. Practical issues were raised regarding how evidence is shared between the prosecution and the defence. Barristers and digital defence experts had reported that ‘old fashioned’ ways of supplying data (such as PDFs of spreadsheets showing phone records) were still being used. It was also noted that it is difficult to get effective online platforms and that lots of evidence is slipping through the nets of massive digital hauls.

14. Consideration was given to a hybrid system where the defence are given the keys to ‘part of the warehouse’. Suggestion was made that the prosecution would no longer be required to schedule the material in its possession, on the basis that scheduling would be time consuming and inefficient. Both the prosecution and defence struggle to get through large volumes of information: digital experts were saying the difficulty was digital extraction, and police were saying they did not have the requisite expertise. It was acknowledged that disclosure officers and prosecutors do not necessarily have the knowledge or resources to go through large volumes of data. To improve this, participants suggested that a way should be found of analysing data in an effective way, and one that allowed for better communication of what the data contained to all parties. AI was a potential route in this regard.

The judicial role

15. Participants were asked to consider the role judges should play in managing disclosure, for example whether judges should become more involved and how this would impact reasonable lines of inquiry. The Review aimed to formalise the engagement between the prosecution and defence on the issue of disclosure, and to do so in the format provided by the courts, particularly post charge.

16. It was suggested that the proper judicial function was an administrative one for the most part. If the prosecution and defence are expected to agree as to events and dates, a judge would become involved only if agreement could not be reached. Participants noted that it would not be appropriate for a judge to become involved pre-charge.

17. Participants were generally comfortable with the idea of judges becoming involved in timetabling and case management. There was more consternation with judges having greater involvement in determining what should be disclosed, and in particular with judges becoming inquisitorial before the commencement of the trial. A distinction was identified between, on the one hand, a judge ruling on a dispute between the prosecution and defence and, on the other, directing the prosecution’s approach to disclosure more generally; it was the latter which participants felt crossed a line.

18. It was noted that greater judicial involvement in disclosure would require more training, particularly in relation to digital material. Defence and prosecution advocates had also experienced problems with digital literacy. Many recognised that expert evidence may also be required early on in proceedings to gauge what is achievable, which may take days of court time.

19. Suggestion was made that, in the magistrates’ court, more problematic cases are heard by a district judge, who would be more likely to understand the CPIA, rather than a lay bench.

Police training

20. It was noted that there are further issues raised by magistrates’ court proceedings – case are routinely being adjourned (or collapsing altogether) because of disclosure failings. This was as opposed to the Crown Court, in which participants felt that there was greater familiarity with the CPIA. Participants were therefore asked to comment on the level of training that is given to police officers and who was responsible for it.

21. In that regard, it was understood that the initial police training contained just one hour on fraud. Unless an officer becomes a specialist in fraud, it is unlikely that they would receive any specific training. It was observed that the average police officer is less likely to become a detective or a digital expert. Participants noted that whilst more training on the CPIA would be a good thing in principle, there are heavily competing demands on resources.

22. It was suggested that the police are the wrong organisation to carry out disclosure; their role was to investigate. On smaller cases, the arresting officer would charge the case without paying the necessary attention to disclosure. Again, participants were more inclined towards the ‘keys to the warehouse approach’, even in a small case, where there is less material in any event. In relation to serious offences, however, the disclosure tends to be superb because more resources are allocated to it.

23. It was suggested that there are broader cultural issues in the way in which investigating officers approach the CPIA. It appears that the issue of unused material is not considered, and officers do not see the value of doing so because it does not advance the prosecution case. Police officers do not see themselves as investigators of crime but as ‘society’s bouncers’. The CPIA Code contains a lot of material about police as investigators. However, concern was expressed that, if the police are not given responsibility for disclosure, they will stop looking for evidence that might be exculpatory. There was a general consensus that further training around disclosure is needed, and ought to be delivered by someone with recent and up to date knowledge. It was noted that training needs to ensure that police understand the importance of disclosure. Current training does not appear to be achieving this, and police officers still do not see it as their role to progress the investigation through exculpatory evidence.

Conclusions

24. Although the CPIA was legislation passed in 1996, it is still not properly embedded in the criminal justice system. This also affects Crown Court proceedings. The CPIA and unused material must be strictly bound up with the investigation.

25. A disclosure regime should make sure that the defence has access to all necessary material to build the best case possible, in a way that does not delay justice. In that case, effective disclosure should make the proceedings quicker. The defendant could build a case or plead guilty earlier; conversely the prosecution could offer no evidence earlier. Disclosure is the bedrock for just outcomes.

1. Section 8 of the CPIA provides a mechanism by means of which a defendant can apply to the court for an order requiring the prosecutor to disclose any material which he has reasonable cause to believe ought to be disclosed to him but has not been. ↩