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Legal Minds

24 August 2017 / by / in

A level playing field on Disclosure

“Making it Fair – A Joint Inspection of the Disclosure of Unused Material in Volume Crown Court Cases – Her Majesty’s Crown Prosecution Service Inspectorate and Her Majesty’s Chief Inspector.”

This report published in July 2017 contains a number of sensible and welcome recommendations for the improvement of procedures and training in the identification and disclosure of unused material by the Crown in criminal proceedings. It is the latest in a number of reports/ protocols which followed the introduction of the disclosure regime created by the Criminal Procedure and Investigations Act 1996 (CPIA).

The focus of this particular report is the volume caseload of Crown Courts as opposed to large and complex cases (predominantly frauds) which have attracted most interest in the media. The report’s authors conclude that procedures in relation to the latter have been refined to cope with a number of failures identified in earlier reviews. This may be a somewhat optimistic conclusion if recent experience is to be a guide. The Court of Appeal in R V R (2015), a large and complex fraud case, felt compelled to issue guidance for the correct implementation of the CPIA with specific reference to E-Disclosure.

The authors conclude that far less attention has been given to the vast majority of Crown Court cases where systemic failings in the disclosure process are tolerated and the parties involved “look for ways of working around its failings rather than solving the root problems”. They have made some specific recommendations, including:

– Early definition of disclosure issues relating to unused material at the charging stage

– Defence Statements should be reviewed by the prosecutor before being sent to the police and guidance given as to what material needs to be reviewed for disclosure purposes

– The College of Policing should provide training of sufficient depth to all staff in the investigative process

– Police forces to improve their supervision procedures of case files in relation to unused disclosure

– The CPS Compliance and Assurance Teams to conduct six monthly dip samples of volume Crown Court cases

– Each police force to appoint a Disclosure Champion

– The CPS to set up an effective sharing of analysis of data between Areas and Headquarters

– The CPS to review their digital case management systems and ensure that all digital unused material supplied to the police is stored at a central location

– Communications between the chief investigating officer and the assigned prosecutor should be improved to ensure that they collectively seek to resolve disclosure issues

The extent to which it will be practicable to implement these recommendations will almost certainly be driven by the available resources. Budget cuts imposed on the Police Service and the CPS during recent years do not augur well. However, the fact that these proposals emanate from the prosecuting agencies’ recognition of their own inadequacies is encouraging. The haemorrhaging of resources (on both the prosecution and defence sides) engendered by disclosure failures cries out for a comprehensive solution along the lines advocated. It will also, one hopes, diminish the number of unwarranted prosecutions which are discontinued following the belated discovery of material that should by rights have been reviewed much earlier in the process.

 

Stephen Sharp

Steve heads the Business and White Collar Crime team at Bivonas Law and specialises in defending white collar crime cases. He has defended in cases brought by the Serious Fraud Office (SFO), HM Revenue and Customs, Department of Business Innovation and Skills (BIS), the Economic Crime Unit (ECU), NHS Counter-Fraud Service and the Crown Prosecution Service (CPS).

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