The Attorney General's Review of the efficiency and effectiveness of disclosure in the criminal justice system identifies a number of issues with the current regime and sets out proposals for action in the future.
Disclosure: A recap
The Criminal Procedure and Investigations Act 1996 ("CPIA") provides the statutory framework for disclosure in criminal proceedings, which is to say the process by which the prosecution must reveal to the defence the material which it is not relying on ("unused material") but which could help the defendant's case.
Under the Act, the prosecution is obliged to disclose prosecution material which might reasonably be considered capable of:
- Undermining the case for the prosecution against the accused; or
- Assisting the case for the accused.
That test is applied at the initial disclosure stage and thereafter throughout the proceedings as part of the prosecutor's continuing duty of disclosure. The prosecutor also has a duty to consider disclosure at common law, before and after the stages in a case at which the CPIA duty is engaged.
The prosecutor's duty cannot be executed effectively without the investigator ensuring that all reasonable lines of enquiry have been followed, and that material relevant to the investigation has been retained, recorded and in due course revealed to the prosecutor.
The standard of compliance with the disclosure process has been the subject of increasing scrutiny and concern in recent times, in particular following a number of well-publicised cases that have had to be stopped on account of irredeemable issues with disclosure.
On 15 November 2018, the Attorney General, Geoffrey Cox QC MP, announced the publication of the 'Review of Disclosure Procedures in the Criminal Justice System'. The Review, which was launched in December 2017 by the then Attorney General, Jeremy Wright QC MP, includes cases in the Magistrates’ Courts as well as more complex Crown Court cases and specialist prosecutions, including economic crime and sexual offences.
The Review identified a number of thematic problems, including:
- reasonable lines of inquiry not always being followed;
- disclosure obligations not being considered with sufficient attention from the outset of criminal investigations;
- inadequate scheduling of relevant unused material;
- prosecutors not asking the right questions to uncover investigator errors;
- inadequate engagement between the investigator/prosecutor and the defence and judiciary, where they have a role in the disclosure process; and
- late disclosure.
The Review concluded that the CPIA continues to provide an appropriate disclosure regime but the system is not working as effectively or efficiently as it should. Investigators and prosecutors can interpret the disclosure test too narrowly or place too much emphasis on what has been revealed about the defence's case (for example, in an interview). The Review recommends simplifying and modernising the secondary legislation, guidelines and protocols that sit beneath the CPIA.
In addition, the Review found that certain categories of material that would invariably assist the defence – and therefore meet the test for disclosure – are not always disclosed. To address these reported failings in volume crime cases the Review recommends that a rebuttable presumption, in favour of disclosure of certain items, be created through the CPIA Code of Practice. This would mean that the focus of the investigator and prosecutor would shift to whether there is good reason why those items should not be disclosed. The Review suggests that this would ensure fewer mistakes in the application of the CPIA and less time and resources wasted through otherwise unnecessary correspondence and challenges.
The Review further concluded that problems with disclosure are often left too late in the proceedings to be managed adequately. The Review suggests that early and meaningful engagement between the prosecution and defence would improve the wider disclosure process, including by helping to identify evidence and reasonable lines of enquiry. That in turn would allow for a more informed assessment when a charging decision is made. The Review recommends updating the Attorney General's guidelines and CPS guidance, to encourage pre-charge engagement.
Finally, the Review determined that behavioural and cultural changes are key to driving improvements in the disclosure process. Disclosure is often regarded by investigators and prosecutors as an arduous task to be performed after the evidence proving the defendant's guilt has been prepared. The Review reasserts the findings of previous reports conducted around the issue and recommends changes to police training, emphasising the importance of an inquiring, open-minded approach and investigative mind-set. Further, with regards to technology the review found that adopting procedures and processes that exploit new technologies can significantly reduce the disclosure pressures on investigators and prosecutors. Difficulties associated with handling extensive amounts of digital material generated by police investigations can be addressed using advances in technology such as Artificial Intelligence ("AI"). The Review recommends amending secondary legislation, together with the Attorney General's guidelines and the other guidance and protocols that sit beneath the CPIA to deal with the realities of digital material. Clarity on the legitimacy of using AI and innovative processes would of course be needed for any such developments to take root and prove effective.
The publication of the Review is timely, coming shortly after the Court of Appeal commented on the topic of reasonable lines of enquiry, as to which see our earlier blog, and the publication of the revised Code for Crown Prosecutors. For those who wish to read further on the topic, the full Review can be found here.