JUSTICE: 28 October 2023
Published 30 April 2024
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Introduction
The Chair of the Review, Jonathan Fisher KC, summarised the terms of reference and explained the scope of the Review.
Discussion
The discussion covered the following topics:
Criminal Procedure and Investigations Act 1996 (CPIA)
1. It was suggested that the CPIA remains the right legislation, however, there are concerns regarding the implementation of the Act. The ensuing problems could be viewed through the lens of criminal justice stakeholders not being properly trained and having insufficient resources to deliver the disclosure regime as designed. The disclosure test was seen as straightforward.
2. It was noted that an amendment had been proposed to the Victims and Prisoners Bill that would introduce a ‘reasonableness test’ for police officers when gathering material from, or about, complainants in rape and serious sexual offences cases.
3. It was proposed that disclosure may not always be properly undertaken in the Magistrates’ court due to a lack of resource, and an overstretched Crown Prosecution Service (CPS) and police services. Late disclosure from the police and prosecution can lead to frequent adjournments.
Keys to the Warehouse
4. It was highlighted that there is a principle, at the heart of the English and Welsh criminal justice system, where the state has the responsibility of bringing and proving a criminal case beyond reasonable doubt. As the party with greater resource, it is expected that the prosecution will not bring a case unless it has thoroughly considered the material and concludes that the case had reasonable prospects of success.
5.Although some participants considered that a ‘keys to the warehouse’ approach would certainly improve the transparency of the disclosure process, there were concerns raised about the potential for inadvertent shifting of the disclosure burden from the state to the defence which could result in disproportionate negative impacts for the defence in legal aid funded cases. It was suggested that without proper resources to support any changes of this nature, the unintended consequences could be significant.
Resources
6. It was noted that disclosure, as a process, requires significant time, care and attention. For the CPIA legislative framework to be effective, those applying the legislation need to be properly trained to understand its significance and real-world application. The reality is that such training can be challenging to deliver in the criminal justice system that has a range of other competing demands.
7. The lack of resources may also be compounding communication issues between the CPS and the police. As both parties have significant caseloads, it can be challenging to find time to discuss a disclosure and digital material strategy approach early on in a case. Therefore, disclosure deficiencies are often only identified late in a case’s lifecycle.