Transparency data

Practitioners’ Advisory Panel, session 1: 12 December 2023

Published 30 April 2024

Members

Chair

• Jonathan Fisher KC

Practitioners

• Faras Baloch – Red Lion
• Jane Bewsey KC – Red Lion
• John Binns – BCL Solicitors LLP
• Cameron Brown KC – Red Lion
• Mark Fenhalls KC – 23 Essex Street
• Patrick Gibbs KC – Three Raymond Buildings
• David Green KC – Cohen & Gresser – Former Director SFO
• Rebecca Hadgett – Three Raymond Buildings
• Sue Hawley – Spotlight
• Sir Max Hill KCB KC – Red Lion – Former Director of Public Prosecutions
• Louise Hodges – Kingsley Napley
• Riel Karmy-Jones KC – Red Lion
• Lord Ken Macdonald KC – Matrix Chambers – Former Director of Public Prosecutions
• Ailsa McKeon – 6KBW
• Alun Milford – Kingsley Napley
• Clare Montgomery KC – Matrix Chambers
• David Ormerod CBE – University College London
• Amanda Pinto KC – 33 Chancery Lane
• Fiona Rutherford – JUSTICE
• Alison Saunders DCB – Linklaters - Former Director of Public Prosecutions
• Antony Shaw KC – Red Lion
• Ian Winter KC – Cloth Fair Chambers

Junior Counsel

• Anita Clifford – Red Lion
• Alex Davidson – 2 Bedford Row

Officials: Jemima Murray (Deputy Director) and junior secretariat officials.  

Introduction

1. The Chair of the Review, Jonathan Fisher KC welcomed members to the first Practitioners’ Advisory Panel. The Chair gave a brief overview of his approach to the Review, highlighting that a bottom-up approach is being taken, in order that the Review can hear first-hand from practitioners regarding their experience with the disclosure regime.

2. The Chair advised that a second panel meeting will be held in Spring 2024 where practitioners will have the opportunity to share their thoughts on possible solutions that may feed into the Review’s recommendations.

Discussion

3. Members were asked to reflect on how well they think the Criminal Procedure and Investigations Act 1996 (CPIA) is working in practice and to consider whether their experiences are equally reflected across all crime types and not just serious fraud cases. The following observations were made:

CPIA

4. There was a general consensus that in theory, the CPIA framework should work, however, in reality the legislation is made to work by practitioners, rather than naturally performing as intended.

5. There was broad agreement that significant challenges remain in the real-world application of the legislation and Code of Practice. These issues created can be seen in the both Crown Court and Magistrates’ Courts.

6. Difficulties arise as a result of the legislation’s stringent and often burdensome requirements. Members said that they would welcome consideration of new and less burdensome ways of implementing its existing requirements.

7. There were conflicting views on how well the relevance test^{[footnote 1]} works in practice. Some regarded it to be fit for purpose whilst others did not. However, there was agreement that it would be hard to find something better to replace it.

8. Some also suggested the guidance for practitioners^{[footnote 2]} that accompanies the CPIA and Code of Practice, would benefit from a review to remove any divergence and thereby create a more efficient practical application of the legislation.

Training and resources

9. In response to the Chair’s question on whether there is a resource issue, it was widely agreed that there is a substantial problem around training and resources for investigators. Many noted that there is inadequate training provided and a high staff turnover, most notably for disclosure officers and investigators. As a result, disclosure mistakes are often not identified until late in the trial process, when few effective solutions are available.

10. It was raised that training is a particular issue for homicide and rape and serious sexual offences (RASSO) case officers. Members stressed that more training needs to be provided to dispel the fear around disclosure and ensure officers are more proactive rather than reactive.

11. Several members highlighted that there is a lack of resource to deal with demanding disclosure tasks which result in increased workloads. This has a negative impact as small teams are unable to cope with the volume of material seized, most notably in RASSO and serious fraud cases. Being overworked is leading to poor quality outputs as staff are having to work substantial unpaid hours to ensure schedules are completed which means that they are often done to an unsatisfactory standard. There was a reflection that securing suitable funding for a resource is likely to remain a challenge in the current climate.

Digital material

12. Members supported the widely recognised view that the transition from paper material to digital material has created a significant burden for those dealing with disclosure due to the proliferation of personal electronic devices. This is particularly prevalent in RASSO cases. It is expected that the amount of digital data in cases will continue to rise and the ability of the criminal justice system to respond will reduce in line with current resource constraints.

13. It was noted that in certain cases, the volume of material becomes so vast the prosecution is unable to properly review it. In these situations, an agreement regarding what should be reviewed and blocklisted can be struck between the defence and prosecution, even if strictly outside of the prescribed legislative framework.

Technology and Artificial Intelligence (AI)

14. Advancements in technology were touched on briefly during the discussion and there was overall confidence that this could improve the volume and resource issue. It was noted that developments in AI could be used to assist when sifting and reviewing vast amounts of data, given the number of digital devices now being seized. It was also suggested that more work needs to be done to ensure that the criminal justice system, including the judiciary, can keep up to date with technological developments and that there is a strategy for ensuring that the use of technology does not undermine the fundamental right to a fair trial.

Pre-charge engagement: Defence

15. There was an overall agreement that lack of early-stage engagement from either prosecution or defence, compounds and exacerbates discrete issues which often reappear at trial. Members agreed that earlier engagement between the prosecution and defence should be encouraged. However, it was noted that the defence can choose, tactically, not to engage early as there are instances when doing so might enable them to pursue arguments that are likely to benefit their client.

16. The prevailing view was that there is very little incentive for the defence to engage with the prosecution pre-charge, given that it is the Crown’s responsibility to bring the case.

17. It was suggested that if all parties did engage early, focussing on the real issues of the case, this would go a considerable way to making the CPIA work. However, it was acknowledged that delays can be caused by both the prosecution and defence.

18. There was general support for exploring a more robust case management approach to assist and encourage engagement amongst both parties.

Keys to the Warehouse

19. The group reflected upon the merits of the North American ‘keys to the warehouse’ disclosure system, whereby all material is disclosed to the defence at the outset.  Whilst it was acknowledged as an option the group had mixed views. It was noted that such an approach could significantly relieve the prosecution of their disclosure burden, thereby reducing the likelihood of a miscarriage of justice.

20. In contrast, it was argued that there would remain significant barriers around General Data Protection Regulation (GDPR) and data protection. No redaction-free corridor between the police and Crown Prosecution Service currently exists. The implications for public finances concerning legal aid were also raised. There were also reflections about the historic responsibility that the prosecution has, in reviewing material bringing and proving a case and potential impacts for equality of arms. The ‘keys’ approach runs contrary to the historic prosecutor’s function to only make disclosure when the test is met.

1. Paragraph 6.2 Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice Material which may be relevant to an investigation, which has been retained in accordance with this code, and which the disclosure officer believes will not form part of the prosecution case, must be listed on a schedule. ↩

2. Attorney General’s Guidelines on Disclosure 2022 and Crown Prosecution Service Disclosure Manual. ↩