Building on The Decade of Disclosure In Criminal Procedure

John Epp

• Publisher: Routledge-Cavendish
• Year: 2013
• Print ISBN: 9781859416594
• eBook ISBN: 9781135339098
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

First published in 2001. This work has three aims. Firstly, to provide an examination of the history of the disclosure of information in advance of trial in criminal proceedings in England and Wales. This is done with reference to first principles, statutory and case law, and formal and informal practice norms. This examination will set the stage for the discussion of the law and practice of disclosure in England and Wales now in found in Criminal Procedure and Investigations Act 1996, its Code of Practice, and the expanding body of relevant case law, and the Attorney General's Guidelines on disclosure (2000). Secondly, to provide a detailed discussion of the current law and practice of disclosure in England and Wales by closely examining the case law, statutory provisions and guidelines. Finally, to discuss the way forward. The Government has indicated its provisional views in the Command Paper, The Way Ahead. Various commentators have made suggestions as to how the disclosure regime might be reformed. Their ideas are discussed, and original ideas are presented. It is hoped that the discussion will assist in formulating the necessary reforms to the disclosure regime.

CHAPTER 1
INTRODUCTION

1.1 THE DECADE OF DISCLOSURE

The law of England andWales pertaining to the obligation on the prosecution to provide information to the defence before trial evolved at a significant pace in the decade of the 1990s. The changes made were the culmination of a long period of study and consideration¹ and a response to the miscarriages of justice² in the now infamous cases of the Guildford Four,³ Birmingham Six,⁴ Maguire Seven,⁵ JudithWard⁶ and the M25 Three.⁷ The changes led to a re-examination of the rules governing advance notice to the defence of the evidence to be used by the prosecution at trial and the disclosure to the defence of information or evidence that might be relevant to the case, but which was not to be used at trial. The Court of Appeal and the House of Lords stated that fair disclosure to the defence in the pre-trial stage was an inseparable part of the right of the accused to a fair trial.⁸ Simply stated, the key features of the development of the common law of disclosure in the last decade were the decision of the appellate courts to declare their power of review of prosecution disclosure decisions⁹ and the declaration of the breadth of the information that had to be disclosed by the prosecutor.¹⁰ Ironically, just as practitioners and the police came to understand the changes to the common law,¹¹ and appropriate adjustments had been made to the National Operations Manual of the Crown Prosecution Service (CPS),¹² the Criminal Procedure and Investigations Act (CPIA) 1996 was enacted.

The CPIA 1996 set the law of disclosure of unused material on a substantially different course by disengaging the common law rules, amending relevant legislation and introducing a reciprocal information exchange regime.¹³ The regime applies once the accused has been committed, or sent, to Crown Court for trial on indictment.¹⁴ It also allows the accused before a magistrates’ court to participate voluntarily.¹⁵ It assumes that disclosure of the evidence to be used by the prosecution at trial on indictment has been provided to the accused. The CPIA 1996 reduces the breadth of the prosecution disclosure obligation and it attempts to limit the court’s supervisory powers over prosecution discretion in disclosure.¹⁶ The main features of the legislation include a scheme of initial limited prosecution disclosure consisting of the balance of the prosecution evidence not provided earlier, if any, and unused material that, in the opinion of the prosecutor,might undermine the case. If the defence seeks more extensive disclosure of unused materials it is required to provide a comprehensive defence statement before requesting ‘secondary’ disclosure. Secondary disclosure is limited to an examination and disclosure of unused material that might assist in the stated defence. The defence statement is defined as a written statement setting out the nature of the defence and indicating the matters in issue along with the reason why issue is taken on each matter.¹⁷

The case of DPP ex p Lee¹⁸ examined the relationship between the common law rules and the CPIA 1996. The court rejected the argument that early disclosure of the case for the prosecution, and some unused materials, rested fully within the discretion of the CPS. It confirmed the availability of judicial review in respect of decisions in relation to the time of disclosure and provided comment on the scope of what must be given in early disclosure.

Ultimately, the Attorney General provided guidance on the best practices to be followed in disclosure of ‘used’ and ‘unused’ information.¹⁹ The detailed examination of the historical and current position in England andWales found in this book will offer support to the conclusion that the last decade of the 20th century was the decade of disclosure in England and Wales.

A discussion of the current law reveals many important issues. It will be demonstrated that pre-trial disclosure by the prosecution is important for many reasons, two of which can be stated now. First, the police gather and hold most, if not all, of the information relevant to criminal proceedings and, second, the accused almost never has the resources to match those of the State. It will be argued that the current provisions relating to disclosure by the prosecution are open to criticism on the basis that the provisions do not complywith the right to fair disclosure which is an important element of a fair trial. The provisions in question leave open the possibility that information that may lead to inquiries which might assist the defence may never be revealed. For example, in the first phase of prosecution disclosure of unused evidence the pool of information fromwhich disclosure is to be given is defined narrowly, as is the breadth of the test that is to be applied in making disclosure. Further, the test to be applied relies on the opinion of the prosecutor without provision for judicial supervision. An examination of the manner in which the current law of disclosure is applied by the police and prosecution will reveal other concerns. The evidence gathered by the Home Office, the CPS Inspectorate²⁰ and the legal profession, in conjunction with the British Academy of Forensic Sciences²¹ (co-BAFS) reveal that investigators of crime can and do undermine the rules of disclosure by failing to inform the prosecutor of all relevant information. This leaves the prosecutor unable adequately to inform the defence. Also, some prosecutors are failing properly to honour their professional and statutory duty to provide fair disclosure to the defence. The evidence discussed in this work suggests that the deviation from appropriate standards has had, and will continue to have, a negative impact on the right to a fair trial. Unfortunate results occur when the prosecution process is undermined by the unethical conduct of the participants. Lord Justice Rose provided the important reminder that ‘…no one associated with the criminal justice system can afford to be complacent’. Injustices like the wrongful conviction and consequent ruination of lives ‘… can only be avoided if all concerned in the investigation of crime, and the preparation and presentation of criminal prosecutions, observe the very highest standards of integrity, conscientiousness and professional skill’.²²

1.2 BUILDING ON THE DECADE OF DISCLOSURE

1.2.1 Introduction to building

While a discussion of the history of disclosure is informative, and will be undertaken in this work, the issue that is in urgent need of discussion is the wayforward. It has been stated by Malcolm Fowler, chairman of theLawSociety’s criminal law committee that the CPIA 1996 is in need of ‘root and branch reform’.²³ Lord Williams of Mostyn, while Attorney General, acknowledged that the disclosure regimewas in need of further study and stated that the topic would be revisited upon the receipt of the report of the independent researchers appointed by theHomeOffice,²⁴ a commitment repeated by the Government in February 2001.²⁵ That report is now in the Home Office and is to be released in due course.²⁶

The issue of reform, or building on the decade of disclosure, is one of the central themes of this work. It will be argued that the combination of the statute and commonlaw of the early 1990s provided a sound basis on which to operate a disclosure regime and that many of the provisions found in the CPIA 1996 cannot withstand scrutiny in the light of first principles. Some of the evidence in support of these conclusions is found in making comparison to the situation in Canada which continues to operate a disclosure regime based on rules that are very similar to the rules found in England andWales before the CPIA 1996. However, it is not the thesis of this book that justice would be better served by returning to the previous regime. Rather, it is suggested, theway forward is to take the best from the past, the best from the CPIA 1996, and to improve on the mix by addressing concerns that have been identified at or since the inception of theAct. For example, it will be argued that the pool of information to which the disclosure obligation applies, now defined restrictively in the CPIA 1996 as ‘prosecution material’, should be expanded to the broad position found in the common law as stated in Keane.²⁷ The code of practice issued pursuant to the CPIA 1996, governing investigation, retention and disclosure of material, has proven to be an important innovation and should be retained subject to one improvement. It is submitted that the code and theCPIA1996 should be amended to provide to the court a power, exercisable on its own motion, or on the application of the defence, to enforce the provisions of the code. It must beformulated in a manner that enables the court to act in an efficient manner and at a pre-trial stage, in enforcing the code. It is also submitted that reforms must be adopted to encourage the police to comply with the CPIA 1996. This may include the provision for an early review power in the court and must include reform to the police mindset, or ‘culture’, and training and management methods.

The discussion in this book is presented at what may be a most opportune time. Not only have there been a growing number of calls for reform of the CPIA 1996, and the report of the independent researchers is now in hand, the Government has announced its plans for criminal justice in England andWales. In keeping with past policies, ‘law and or...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• PREFACE
• ACKNOWLEDGMENTS
• TABLE OF CASES
• TABLE OF LEGISLATION
• TABLE OF ABBREVIATIONS
• CHAPTER 1: INTRODUCTION
• CHAPTER 2: CRIMINAL JUSTICE AND DISCLOSURE
• CHAPTER 3: THE EVOLUTION OF THE DISCLOSURE OF INFORMATION
• CHAPTER 4: THE DEBATE REGARDING THE CRIMINAL PROCEDURE AND INVESTIGATIONS ACT 1996
• CHAPTER 5: PROSECUTION DISCLOSURE IN MATTERS TO BE TRIED ON INDICTMENT
• CHAPTER 6: PUBLIC INTEREST AND DISCLOSURE
• CHAPTER 7: PRACTICAL ISSUES IN DISCLOSURE
• CHAPTER 8: COMMITTAL TO CROWN COURT AND DISCLOSURE
• CHAPTER 9: DISCLOSURE IN SUMMARY ONLY PROCEEDINGS
• CHAPTER 10: REMEDIES AVAILABLE TO THE ACCUSED
• CHAPTER 11: PROSECUTION ADHERENCE TO THE CPIA 1996
• CHAPTER 12: DISCLOSURE OF THE DEFENCE AT COMMON LAW AND UNDER THE CPIA 1996
• CHAPTER 13: SUMMARY, ANALYSIS AND CONCLUSIONS
• CHAPTER 14: REFORM
• ATTORNEY GENERAL’S GUIDELINES (2000) DISCLOSURE OF INFORMATION IN CRIMINAL PROCEEDINGS
• PROVINCE OF ONTARIO MINISTRY OF THE ATTORNEY GENERAL CROWN POLICY MANUAL OF ‘DISCLOSURE’, 1995
• MARTIN REPORT (REPORT OF THE ATTORNEY GENERAL’S ADVISORY COMMITTEE ON CHARGE SCREENING, DISCLOSURE, AND RESOLUTION DISCUSSIONS, ONTARIO, 1993)
• LOCKE REPORT (CRIMINAL JUSTICE REVIEW COMMITTEE, ONTARIO, 1999)
• BIBLIOGRAPHY