Crown Prosecution Service prosecutors: 30 November 2023
Published 30 April 2024
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These are the personal experiences and views of practitioners and are therefore not necessarily reflected in the organisational wide assessment of disclosure
Introduction
The Chair of the Review, Jonathan Fisher KC, summarised the terms of reference and scope of the Review. He explained the importance of hearing first hand, from investigators, prosecutors, and practitioners, who uphold the disclosure regime.
Discussion
Criminal Procedure and Investigations Act 1996 (CPIA)
1. Participants consider that the CPIA framework, with regard to the disclosure provisions, is sound but there are issues with its application, which has become challenging in cases with large volumes of digital material. The legislation requires updating in line with case law.
2. Participants shared the view that any reform of the disclosure regime should not result in a two-tier regime – one for economic crime or complex cases and another for everything else.
Attorney General’s Guidelines
3. The disclosure management document (DMD) was viewed by participants as a valuable document, and that there should be an expectation for the defence to engage with this. The DMD sets out the prosecution’s strategy and approach taken to manage disclosure, including the method and extent of examination of digital material, in accordance with Annex A to the Attorney General’s Guidelines. It was suggested that all parties should be encouraged to see the DMD as a living and evolving document intended to assist the court and facilitate early engagement between the prosecution and defence. If used well, it has the potential to move the conversation away from litigating the disclosure approach, to more active management of the key issues in the case.
Digital material
4. Participants noted that the volume of material seized now includes large volumes of digital material and the task of reviewing this material and scheduling all relevant unused material presents challenges. There is a need to reconcile the obligations under the CPIA and Code of Practice with the pragmatic approach taken, in practice, in relation to large volume of digital material.
5. Challenges around large volumes of digital material are not limited to Economic Crime cases but also extend to other serious and organised crime.
6. Complexity, not just volume, of material is also a factor that investigators and prosecutors wrestle with when undertaking disclosure.
Investigation scope
7. Participants highlighted that it is worth remembering that the material seized will differ greatly between different types of criminal cases. For example, rape and serious sexual offences cases look back at a specific moment in time to determine offending whereas terrorism related offences will have a longer timeline to consider. Therefore, the offence type influences the way in which material is gathered and analysed and the subsequent extent of the burden of disclosure.
8. Participants highlighted the importance of early engagement between investigators and prosecutors, especially in complex cases, which can help develop an effective disclosure strategy in each case.
Courts
9. Prosecutors said that they would welcome more robust judicial case management, to prevent disclosure from becoming a fundamental issue during, or in the lead-up to, a trial by encouraging the defence to engage with the prosecution.
10. They explained that directions can vary significantly between Crown Court centres and there is a need for greater consistency between courts regarding their evaluation of the application of CPIA, and its Code of Practice.
Resources and Training
11. Prosecutors shared views that it is important for law enforcement and prosecutors to have the right skills.
12. All investigations that meet the criteria for referral to the Serious Economic, Organised Crime and International Directorate must have a dedicated disclosure officer appointed to them, in addition to the officer in the case. That person must have sufficient skill and authority, commensurate with the complexity of the investigation, to discharge the disclosure functions effectively. The practice varies in volume casework.
Technology
13. Participants explained that software is already being used by investigators and prosecutors to review material. However, not all investigators have access to the technology that can aid them in fulfilling their disclosure obligations. In considering solutions, it was suggested that the software is only ever as good at the quality of the data analysed and is highly dependent upon the skill of the individuals operating the software.