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In this update on his Independent Review of Disclosure, Jonathan Fisher KC focuses on the miscellany of problems which need to be addressed right across the disclosure regime
While my terms of reference highlight the need to review the way in which the regime for disclosure of unused material in criminal cases operates where there is a large volume of digital evidence (see ‘Disclosure of unused material’, Counsel, April 2024), my Independent Review of Disclosure has revealed a miscellany of other problems which need to be addressed across the disclosure regime.
Starting with the Magistrates’ Court, feedback from stakeholders suggests that the requirements of the Criminal Procedure and Investigations Act 1996 (CPIA 1996) are frequently not met. Failings are cited on all sides including investigators, prosecutors, and the defence. In cases listed for trial, it appears that sometimes the need for the prosecution to serve a schedule of unused material is completely overlooked, while in other cases important material is omitted from the schedule or served late, a few days before trial or even at the time of trial.
In some instances, a culture which recognises the importance of disclosing unused material as an integral step in the criminal justice process is lacking.
The situation is not helped by the fact that there are fewer case management hearings in the Magistrates’ Court than the Crown Court, and the presence of digital evidence can often arise here. It is estimated that the average UK home contains seven digital devices, and in every case where the police are involved, there will be body worn video cameras used to capture both video and audio evidence when officers are attending all types of incidents.
More complicated problems are sometimes experienced in the Crown Court. I have noted broad agreement among stakeholders that early engagement between prosecution and defence regarding disclosure issues shortly after a case reaches the Crown Court has the potential to produce enormous benefits.
But the framework within which early engagement can take place is weak. The recent amendments to the Criminal Procedure Rules provide that as soon as is reasonably practicable after the prosecutor serves a disclosure management document, a defendant ‘must make such observations on the content of that document as the defendant wants the court to take into account when giving directions for the preparation of the case for trial’. However, even under this new rule the court’s ability to compel engagement, or indeed enforce an order relating to disclosure of unused material, remains limited in so far as both the prosecutor and defendant are concerned.
More fundamentally, it seems there is a lack of uniform understanding regarding the test to be applied when determining which items of unused material must be disclosed to the defence. The test is set out in s 3 of CPIA 1996, requiring the prosecutor to disclose ‘any 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’.
Some investigators consider the test to be subjective, in the sense that they determine whether in their view a specified item of material undermines the case for the prosecution or assists the case for the accused. Other investigators take a wider approach, determining an item of material to be disclosable in circumstances where they recognise that others may regard an item of undisclosed material to be capable of having forensic value, even though they themselves consider it to have none. There is anecdotal evidence that Crown Court judges have been applying the s 3 test differently, although I have yet to receive transcripts of judgments to this effect.
It may be the case that the test in s 3 is easier to formulate than it is to apply. It is not difficult to understand what is meant by undermining the prosecution case or assisting the case for the accused, but references to reasonableness and capability are more nuanced.
Unfortunately, in addition to the particular difficulties in cases involving a high-volume amount of digital material, this is not the end of the list of challenging disclosure issues which have surfaced during the course of my review.
I have heard concerns articulated by police investigators about the need to prepare schedules of unused material in advance of submission of the papers to the Crown Prosecution Service (CPS) for charging advice. There is a difficult conundrum here. On the one hand, police officers are concerned that much time is wasted where a schedule of unused material is prepared in a case and the CPS advise subsequently that no charges should be brought. On the other hand, when determining whether charges should be brought or not, the CPS will wish to be aware of all relevant material which may undermine the prosecution case or assist the defence.
While it is true that the CPS keeps matters under continuing review, the withdrawal of criminal charges because an exculpatory item was not presented to the CPS at the time of charge is an unhappy state of affairs. Plainly, the defendant should not have been charged in the first place.
The police concern about wasting valuable resource in the unnecessary preparation of a schedule of unused material extends to a case where a criminal charge has been brought and the defendant pleads guilty, perhaps after making an admission in interview. Why, the police ask, is it necessary for time to be spent in the preparation of an unused material schedule when it is not needed? This is especially so in a high-volume case involving digital material which would otherwise need to be reviewed and individually described on the schedule.
One answer to this question is that the status of a defendant’s likely plea remains fluid until the indictment has been put, and if, contrary to the investigating officer’s expectation, the defendant enters a plea of not guilty, the preparation of the unused material schedule will have been delayed. Also, there may be instances where a schedule of unused material is still required. For instance, items of unused material may be helpful to the defence where there is a dispute over the factual basis on which a defendant is to be sentenced, or where they support points made in mitigation.
The issue concerning the preparation of the schedule of unused material before a charging decision is made is complicated by the perceived need to redact documents which contain personal information about third parties and information subject to legal professional privilege. Redacting material can be an extremely time-consuming process, and again the question arises as to whether it is an unnecessary burden for this task to be undertaken before a decision to initiate a criminal charge has been taken. Is this work really necessary under Data Protection Act rules and where, according to established constitutional principles, the Crown is an indivisible unity, and employees of separate departments are unified by the theory that they are each employed as agents of the Crown?
In undertaking the review, there are other matters with a contemporary relevance which come into focus. For example, the application of the regime to private prosecutors as well as local authorities falls within the scope of the review, and consideration of the position concerning unused material in confiscation cases as well as appeals in the Court of Appeal should also not be overlooked.
The problems associated with the handling of unused digital material in large volume criminal cases is one half of the story. The other half of the story requires attention as well.
Jonathan Fisher KC practises at Red Lion Chambers London. Additionally, he is a Senior Fellow (and Visiting Professor in Practice) at LSE. In October 2023, the Home Office appointed Jonathan to act as Independent Reviewer in Disclosure and Fraud Offences. This is a part-time role which Jonathan principally conducts from chambers.
While my terms of reference highlight the need to review the way in which the regime for disclosure of unused material in criminal cases operates where there is a large volume of digital evidence (see ‘Disclosure of unused material’, Counsel, April 2024), my Independent Review of Disclosure has revealed a miscellany of other problems which need to be addressed across the disclosure regime.
Starting with the Magistrates’ Court, feedback from stakeholders suggests that the requirements of the Criminal Procedure and Investigations Act 1996 (CPIA 1996) are frequently not met. Failings are cited on all sides including investigators, prosecutors, and the defence. In cases listed for trial, it appears that sometimes the need for the prosecution to serve a schedule of unused material is completely overlooked, while in other cases important material is omitted from the schedule or served late, a few days before trial or even at the time of trial.
In some instances, a culture which recognises the importance of disclosing unused material as an integral step in the criminal justice process is lacking.
The situation is not helped by the fact that there are fewer case management hearings in the Magistrates’ Court than the Crown Court, and the presence of digital evidence can often arise here. It is estimated that the average UK home contains seven digital devices, and in every case where the police are involved, there will be body worn video cameras used to capture both video and audio evidence when officers are attending all types of incidents.
More complicated problems are sometimes experienced in the Crown Court. I have noted broad agreement among stakeholders that early engagement between prosecution and defence regarding disclosure issues shortly after a case reaches the Crown Court has the potential to produce enormous benefits.
But the framework within which early engagement can take place is weak. The recent amendments to the Criminal Procedure Rules provide that as soon as is reasonably practicable after the prosecutor serves a disclosure management document, a defendant ‘must make such observations on the content of that document as the defendant wants the court to take into account when giving directions for the preparation of the case for trial’. However, even under this new rule the court’s ability to compel engagement, or indeed enforce an order relating to disclosure of unused material, remains limited in so far as both the prosecutor and defendant are concerned.
More fundamentally, it seems there is a lack of uniform understanding regarding the test to be applied when determining which items of unused material must be disclosed to the defence. The test is set out in s 3 of CPIA 1996, requiring the prosecutor to disclose ‘any 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’.
Some investigators consider the test to be subjective, in the sense that they determine whether in their view a specified item of material undermines the case for the prosecution or assists the case for the accused. Other investigators take a wider approach, determining an item of material to be disclosable in circumstances where they recognise that others may regard an item of undisclosed material to be capable of having forensic value, even though they themselves consider it to have none. There is anecdotal evidence that Crown Court judges have been applying the s 3 test differently, although I have yet to receive transcripts of judgments to this effect.
It may be the case that the test in s 3 is easier to formulate than it is to apply. It is not difficult to understand what is meant by undermining the prosecution case or assisting the case for the accused, but references to reasonableness and capability are more nuanced.
Unfortunately, in addition to the particular difficulties in cases involving a high-volume amount of digital material, this is not the end of the list of challenging disclosure issues which have surfaced during the course of my review.
I have heard concerns articulated by police investigators about the need to prepare schedules of unused material in advance of submission of the papers to the Crown Prosecution Service (CPS) for charging advice. There is a difficult conundrum here. On the one hand, police officers are concerned that much time is wasted where a schedule of unused material is prepared in a case and the CPS advise subsequently that no charges should be brought. On the other hand, when determining whether charges should be brought or not, the CPS will wish to be aware of all relevant material which may undermine the prosecution case or assist the defence.
While it is true that the CPS keeps matters under continuing review, the withdrawal of criminal charges because an exculpatory item was not presented to the CPS at the time of charge is an unhappy state of affairs. Plainly, the defendant should not have been charged in the first place.
The police concern about wasting valuable resource in the unnecessary preparation of a schedule of unused material extends to a case where a criminal charge has been brought and the defendant pleads guilty, perhaps after making an admission in interview. Why, the police ask, is it necessary for time to be spent in the preparation of an unused material schedule when it is not needed? This is especially so in a high-volume case involving digital material which would otherwise need to be reviewed and individually described on the schedule.
One answer to this question is that the status of a defendant’s likely plea remains fluid until the indictment has been put, and if, contrary to the investigating officer’s expectation, the defendant enters a plea of not guilty, the preparation of the unused material schedule will have been delayed. Also, there may be instances where a schedule of unused material is still required. For instance, items of unused material may be helpful to the defence where there is a dispute over the factual basis on which a defendant is to be sentenced, or where they support points made in mitigation.
The issue concerning the preparation of the schedule of unused material before a charging decision is made is complicated by the perceived need to redact documents which contain personal information about third parties and information subject to legal professional privilege. Redacting material can be an extremely time-consuming process, and again the question arises as to whether it is an unnecessary burden for this task to be undertaken before a decision to initiate a criminal charge has been taken. Is this work really necessary under Data Protection Act rules and where, according to established constitutional principles, the Crown is an indivisible unity, and employees of separate departments are unified by the theory that they are each employed as agents of the Crown?
In undertaking the review, there are other matters with a contemporary relevance which come into focus. For example, the application of the regime to private prosecutors as well as local authorities falls within the scope of the review, and consideration of the position concerning unused material in confiscation cases as well as appeals in the Court of Appeal should also not be overlooked.
The problems associated with the handling of unused digital material in large volume criminal cases is one half of the story. The other half of the story requires attention as well.
In this update on his Independent Review of Disclosure, Jonathan Fisher KC focuses on the miscellany of problems which need to be addressed right across the disclosure regime
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