Early disclosure recommended
Early disclosure recommended
Reviewer advises Home Office on prosecutors’ growing problems
An independent review of how disclosure works in the criminal justice system of England and Wales has been told that early engagement “has the potential to produce enormous benefits for case progression”.
Jonathan Fisher KC was appointed by the home secretary last October to review the challenges involved in investigating offences that involve large volumes of digital material.
As he explains in preliminary findings published today, “the process of disclosure is a critically important part of criminal legal proceedings which guards against injustice by ensuring that the defence is made aware of information or material which undermines the prosecution case or assists the defence case”.
Non-disclosure, he adds, played a part in the case of Andrew Malkinson, who was cleared of rape after he had been wrongly imprisoned for 17 years. Proper disclosure could also have avoided the Post Office scandal.
Fisher says that disclosure is a particular problem in cases of serious fraud and serious sexual offences. There has been an “exponential rise in digital material, which if not tackled swiftly, will likely further hinder the ability of the criminal justice system to deliver swift and fair justice”, he notes.
Rape and other serious sexual assault charges may involve disclosure of huge amounts of data associated with a complainant’s mobile phone.
Cases prosecuted by the Serious Fraud Office (SFO) have, on average, around 5 million documents. Printed out, they would stand higher than the UK’s tallest building. The largest serious fraud case so far involved 48 million documents (6.5TB of data).
In a separate development, today’s Financial Times reports that difficulties with disclosure software used by the SFO could undermine past convictions:
Problems with the SFO’s software tool from its old provider, Autonomy Introspect, first came to light in 2022 and contributed to the collapse of its prosecution against three former executives at security company G4S last year.
The agency is also reviewing disclosure problems with OpenText Axcelerate, a current software provider the SFO started using in 2018.
“It is very concerning that this may have affected many other SFO cases for many years, particularly if the SFO knew about the issue but did not inform the defence,” said Christopher Houssemayne du Boulay, a partner at Hickman & Rose who first identified the issue with Autonomy when he was representing one of the G4S executives.
In Fisher’s view, far greater attention needs to be given to disclosure at an earlier stage:
One option worth exploring is the utilisation of existing hearings, such as the plea and trial preparation hearing, to agree and resolve the prosecution’s approach to disclosure.
Another possibility is whether in a case where there are significant unused material issues, either due to volume or complexity, to consider if there is scope for a prosecutor or the defence to seek an early court hearing to specifically consider disclosure issues shortly after committal or transfer to the Crown Court.
The hearing, which could be in person or held remotely, would deal exclusively with disclosure matters and might precede the service of the full defence case statement, with the significant advantage of judicial oversight or direction of the process from that early point.
A successful disclosure hearing could limit the amount of unused material that the prosecutor must disclose.
Another suggestion that Fisher is considering would involve deferring work on a prosecutor’s schedule of unused material until after a charging decision has been made. The work might not be needed if the evidence was strong and a suspect had already made significant admissions in interview.
“The ever-increasing volume of digital disclosure presents the criminal justice system with significant challenges,” Fisher said. “Addressing these challenges will support the system to deliver fair and more efficient outcomes for victims, witnesses, and defendants.”
The KC intends to submit his final recommendations to the home secretary in the summer.
Mr. Fisher as I in all reticence see it has it right. At the very least we should now move to a process where the issue of disclosure or non- disclosure should fall within the remit of the judiciary rather than be entrusted to a police or other investigative disclosure officer, where as the Law Society’s Criminal Law Committee maintained under my then chairmanship such an approach had been fundamentally flawed and certain to result in many shocking examples of nondisclosure leading in turn to miscarriages of justice or the like but narrowly averted. This had never been a question on our part of (necessarily) positing the generic bad faith of the officers concerned but rather had to do with the built in training assumptions and experience of being an investigator leading to a deep seated aversion to assisting the defence in any manner or to risking the undermining of the prosecutorial case as constructed at the cost of much labour.
In the light of “my” then Committee’s urgings, its then brilliant Professional Adviser Roger Ede and I arranged to see the then Senior Presiding Judge (now sadly deceased) Igor Judge. We found him very receptive and from his in some ways different standpoint at least as concerned as were we since a number of shocking examples of the mischief we had feared had come to light. I had hoped that our interventions- since with Roger’s and the Committee’s invaluable support I never knowingly missed an opportunity to raise our concerns- had had SOME effect to the better. Much greater and EARLY judicial intervention over these vexed issues had been at the heart of our oft repeated refrain. But now here we are still with appalling instances of failure for whatever reason and something-THIS time- really MUST be done. If only that might be the quick fix but as all thinking lawyers and judges -surely- would agree there is NEVER AN answer to these challenges. What concerns me at least as much is what the Post Office scandal inquiry seems to be unearthing under the resolute chairmanship of Sir Wyn Williams about (some) lawyers’ -shall we say- questionable decisions and recommendations to the Post Office management. What-oh what- are we to do about THAT if closer scrutiny should indeed lead to a higher level of proof than at present of - I use the word again- questionable conduct? A training issue? Certainly, but in the face of the (so often) perverse driver of maximising profit can that ever be enough?