Magistrates' Court Disclosure Review: Improving Criminal Disclosure in Summary Trials, Study notes of Criminal procedure

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Magistrates’ Court

Disclosure Review

May 2014

Contents

• Foreword
• Background and terms of reference
• Summary
• Methodology
• What is and what is not disclosure?
• Present regime - The law and relevant guidance - Common law - CPIA 1996 Defence position - Code of Practice: Provision of the unused schedule - Observations on these parts of the Code - Criminal Procedure Rules - 2013 Criminal Practice Direction - Judicial Protocol on the Disclosure of Unused Material in Criminal Cases
  • Concerns about the present system - Prosecution - Defence - Courts
  • Training
    • Legislative change

Magistrates’ Court Disclosure Review

Foreword

By Lord Justice Gross, Senior Presiding Judge of England and Wales

The correct approach to disclosure is crucial to a fair trial. The process must be managed intelligently if it is not to overwhelm the system. This applies equally to cases in the magistrates’ courts as it does to those in the Crown Court, even if the volume of material is usually much smaller.

It is essential that the principles of disclosure are clearly understood and applied by all concerned in both the magistrates’ and Crown Courts. As noted in my 2011 Disclosure Review:

‘Improvements in disclosure must be prosecution led or driven, in such a

manner as to require the defence to engage – and to permit the defence to

do so with confidence. The entire process must be robustly case managed by

the judiciary. The tools are available; they need to be used.’

This review was commissioned by me to ensure that the disclosure process was dealt with proportionately in summary proceedings. Interested parties were consulted throughout and the result represents a comprehensive analysis of the process, concluding with practical and sensible recommendations as to how to make it more efficient.

The recommendations have been endorsed by the Lord Chief Justice and, I have no doubt, if implemented, will produce a very significant improvement in the system. The heavy “front loading” burden placed upon the prosecution (both Police and CPS) must be acknowledged but, if applied correctly, the benefit to all, prosecution, defence and court, should not be underestimated.

I do not shy away from highlighting the burden, albeit by its nature more responsive, resting upon the defence and the court. The defence must communicate with the prosecution and court, ensuring that matters of concern are not left until the day of trial, leading to applications for an adjournment and delay. The judiciary must be robust in their case management and ensure that cases are progressed.

The recommendations require a change in emphasis from the outset, with much earlier consideration of both the case and of disclosure by the prosecution. The implementation process is already underway. The police and CPS have undertaken to restructure their procedures to meet these demands. If cases can be considered sooner and channelled into specific lists with papers provided to the defence beforehand, then the first hearing will be effective and this exercise will have achieved its immediate aim.

However, the system must not be allowed to stagnate or fall into bad habits. History

Foreword

Magistrates’ Court Disclosure Review Foreword

has shown that this is too often the outcome of well meaning initiatives which start promisingly. A governance structure will be established to minimise this risk and the Consolidated Criminal Practice Direction will make express reference to the new listing recommendation, providing it with greater force.

I am most grateful to HHJ Kinch QC, to the Chief Magistrate Howard Riddle, and to Sara Carnegie for their excellent work on this review. This was not a straightforward task and I thank them for delivering it in an impressive and timely manner.

Sir Peter Gross Senior Presiding Judge

Background

• As to areas of the existing statutory framework that would benefit from consideration by Government.

6. The scope of the review is confined to disclosure in criminal cases and does not consider civil or family matters.
7. This review has been conducted by the Senior District Judge (Chief Magistrate), Judge Riddle and His Honour Judge Kinch QC, Resident Judge, Woolwich Crown Court, assisted by Sara Carnegie, barrister, Legal Secretary to the Senior Presiding Judge.

Summary

Summary

8. The meaning of disclosure, in simple terms, is the obligation of the prosecution to serve on the defence unused material which may reasonably be capable of undermining the prosecution case or assisting the defence. This must be done in a timely manner to assist the defendant in preparation for trial and the court in case management of the issues. It is not a one way process. The defence must play their part, by identifying the issues in dispute, thereby helping the prosecution to make informed decisions.
9. In accordance with the terms of reference, this review has focused on the operation of disclosure in the magistrates’ courts and has not revisited matters covered in the 2011 review. Accordingly, we do not explore the history and development of the present disclosure regime as now set out in the CPIA. In Annexes A and B we set out in brief the key responsibilities of the parties and the disclosure process from pre-charge to trial. Further information in this regard can also be found in parts I and II of the 2011 review. 4
10. We do not make a direct call for a change in legislation and our focus during discussions has been on making the present system work more effectively. Our position in this regard has been influenced by the observations made about the CPIA in Lord Justice Gross’ 2011 review and a desire to make practical recommendations that can be implemented quickly. We do however make limited observations about legislative change in paragraphs 203 to 206 and within our recommendations at paragraph 232.
11. The main aim of our recommendations is to bring consideration of disclosure forward, encouraging the prosecution to deal with it at an earlier stage and to be prepared at the first hearing. It is hoped that this will lead to a more efficient system by reducing the number of delays caused by late or inadequate disclosure.
12. We consider that a change to the listing practice may lead to greater efficiency in the process. This would involve anticipated guilty plea cases being listed more quickly than, and separate from, anticipated not guilty plea cases.
13. We recommend further training for all parties (which could include joint events) to ensure that there is a common understanding as to the meaning of disclosure and what it entails and requires of the parties and the court. This will include a need for all parties to use the same terminology and for there to be greater awareness of what the procedure requires. This will assist courts in making orders that comply with CPIA requirements, rather than going beyond them, or in apparent ignorance of the regime. Specific guidance should be available to benches to ensure consistency of approach.
14. We were interested to hear about processes in place in other Commonwealth countries. We did not think that there were any additional aspects of these systems which were readily transferable or which would necessarily benefit our own. We also note that many raised concerns about certain elements of their practice that caused similar problems and delays to those with which we are familiar.

4 http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/disclosure-review-september-2011.pdf

Methodology

21. We acknowledge that the existing disclosure process arguably creates a disproportionate burden on the prosecution for most minor cases; however we took an early decision not to focus on potential changes to the legislation. Subject to our observations at paragraphs 203 to 206 and our recommendation at paragraph 232 we consider our remit to be consideration of the present system.

What is and what is not disclosure?

What is and what is not disclosure?

22. Before considering the law and relevant guidance, it is important to set out what is meant by disclosure. We have heard and seen for ourselves that both the meaning and purpose can be misunderstood by many of those who are integral to the correct operation of the system.
23. The meaning of disclosure, in simple terms, is the obligation of the prosecution to serve on the defence unused material which may reasonably be capable of undermining the prosecution case or assisting the defence.
24. The misunderstanding of terminology and, therefore, the misapplication of the disclosure procedure was raised with us by several groups with whom we consulted. This leads to confusion, especially among magistrates who may entertain and allow applications for specific disclosure, without the ‘trigger’ of a defence statement, in contravention of the CPIA statutory requirement.
25. Material is generated during the course of an investigation. Some of it will be evidential, some will not. The material which is not used in evidence is simply called ‘unused material.’ The disclosure regime set out in the CPIA 1996 and associated Code of Practice applies in respect of unused material. When using the term ‘disclosure’ within the context of the CPIA, it must be understood that this means the consideration of, and decisions in relation to, the unused material, in accordance with the legislative regime.
26. Unused material is material collected during the investigation but is not evidence against the accused, i.e. it does not form part of the prosecution case, which is why it is termed ‘unused.’ Nevertheless, it is important to retain this material, as it may contain information which may undermine the prosecution case, or assist the defendant.
27. In terms of both the prosecution duty and the unused material, reference should be made to the prosecution’s ‘ initial duty ’ to disclose (section 3 CPIA) followed by their ‘continuing duty ’ to disclose (section 7A CPIA^8 ).
28. Material provided to the defence before or at the first hearing, which includes the essential information and evidence in the case, is colloquially known as the ‘IDPC’ (Initial Details of the Prosecution Case^9 ). A list of what is typically contained in the IDPC as provided by the police to the CPS, (in both anticipated guilty and not guilty plea cases) can be seen in the table at Annex B.

8 Both sections 3 and 7A were amended by the Criminal Justice Act 2003. The recently amended effective trial preparation form defines disclosure according to the Criminal Procedure and Investigations Act 1996, as amended by the Criminal Justice Act 2003: initial duty [s3 (1) (a)] and continuing duty [s7A (2)] of the prosecutor to disclose prosecution material that might reasonably be considered capable of undermining the case against the accused or of assisting the case for the accused. 9 Part 10 of the Criminal Procedure Rules 2013 refer. (SI 1554/2013)

Present regime

Present regime

The law and relevant guidance

35. As previously stated, we do not propose to set out the provisions of the CPIA in detail, as they appear in the 2011 disclosure review.
36. It is important to reiterate that the same disclosure test applies to all criminal prosecutions, whether they take place in a magistrates’ or Crown Court. The defence are entitled to expect that the prosecution will have complied with its CPIA obligations regardless of venue. If the prosecution has failed to discharge its obligations by the date of trial, the prosecutor will not be entitled to continue, if s/he is satisfied that a fair trial cannot take place.^11
37. In relation to unused material, the trial process is governed by a legal regime consisting of the CPIA, the linked Codes of Practice, the Criminal Procedure Rules, the Attorney General’s Guidelines on Disclosure and the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases. The police and CPS have agreed procedures to enable them to fulfil their disclosure duties and these are set out in the Director of Public Prosecution’s Guidance on Charging (fifth edition 2013), the National File Standard and the CPS/ACPO Disclosure Manual.
38. It is noted that there is limited reference to disclosure in the Adult Court Bench Book for magistrates. We understand that the Book is a reference tool and deliberately does not deal with evidential matters in detail. It may however be useful if there were a simple, but more detailed explanation of disclosure within the Book, in addition to further targeted training in this regard, which will be considered further on in this review.

Common law

39. It may be helpful to set out a short précis of the disclosure obligations that exist outside of the CPIA, namely, common law disclosure obligations, colloquially known as ‘ ex parte Lee ’ obligations. These were not considered in the previous reviews.
40. It is apparent in section 3 of the CPIA that the initial duty of the prosecutor to provide disclosure envisages the possibility that some disclosure will have already taken place as s.3(1) reads:

“The prosecutor must—(a) disclose to the accused any prosecution

material which has not previously been disclosed to the accused and which

11 The CPS/ACPO Disclosure Manual states, “If the prosecutor is satisfied that a fair trial cannot take place because of a failure to disclose which cannot or will not be remedied, including by, for example, making formal admissions, amending the charges or presenting the case in a different way so as to ensure fairness or in other ways, he or she must not continue the case.”

Present regime

might reasonably be considered capable of undermining the case for the

prosecution against the accused or of assisting the case for the accused or

(b) give to the accused a written statement that there is no material of a

description mentioned in paragraph (a)”

41. R v DPP, ex parte Lee 12 makes it clear that the CPIA did not abolish common law duties regarding the disclosure of material prior to committal proceedings. The prosecutor must consider the possible need to make disclosure at an early stage. The position was helpfully set out by Kennedy LJ at paragraph 9, notably sub paragraph (v) as follows:

“(v) The 1996 Act does not specifically address the period between arrest

and committal, and whereas in most cases prosecution disclosure can

wait until after committal without jeopardising the defendant’s right

to a fair trial the prosecutor must always be alive to the need to make

advance disclosure of material of which he is aware (either from his own

consideration of the papers or because his attention has been drawn to it by

the defence) and which he, as a responsible prosecutor, recognises should

be disclosed at an earlier stage. Examples canvassed before us were—(a)

previous convictions of a complainant or deceased if that information

could reasonably be expected to assist the defence when applying for bail;

(b) material which might enable a defendant to make a pre-committal

application to stay the proceedings as an abuse of process; (c) material

which might enable a defendant to submit that he should only be committed

for trial on a lesser charge, or perhaps that he should not be committed

for trial at all; (d) material which will enable the defendant and his legal

advisers to make preparations for trial which may be significantly less

effective if disclosure is delayed (eg. names of eye witnesses who the

prosecution do not intend to use).”

The position with which we are concerned is that which arises for cases remaining in the magistrates’ court.

42. The procedural position has changed since 1999 when this judgment was delivered. The abolition of committals came into force in May 2013 so any reference to this element of the process is now obsolete. We are of the view that ex parte Lee still has relevance and the principles set out by Kennedy LJ at (a) and (d) must still apply to the period before duties under the CPIA arise.
43. We therefore underline the need for the prosecution to have in mind their common law/ ex parte Lee duties, particularly in cases where there is a lengthy period between arrest and charge. Such duties should be considered from the point of arrest, particularly in cases where there may be a need to disclose unused witness details/statements, which may be critical to the defence.

12 R v DPP, ex parte Lee (1999) 2 Cr App R 304

Present regime

Paragraph 6.

49. In respect of either way or summary offences, a schedule may not be needed if a person has admitted the offence, or if a police officer witnessed the offence and that person has not denied it.

Paragraph 6.

50. If it is believed that the accused is likely to plead guilty at a summary trial, it is not necessary to prepare a schedule in advance. If, contrary to this belief, the accused pleads not guilty at a summary trial, or the offence is to be tried on indictment, the disclosure officer must ensure that a schedule is prepared as soon as is reasonably practicable after that happens.

Paragraphs 7.1 and 7.

51. The disclosure officer must give the schedules to the prosecutor. Wherever practicable this should be at the same time as he gives him the file containing the material for the prosecution case (or as soon as is reasonably practicable after the decision on allocation or the plea, in cases to which paragraph 6.8 applies).
52. The disclosure officer must also draw a prosecutor’s attention to any material that satisfies the test for disclosure and include a copy if possible.

Observations on these parts of the Code

53. It is noted that ‘wherever practicable’ the officer must provide the prosecutor with the unused schedules at the same time as s/he provides the case file. There is some concern that the CPS National File Standard waters down the meaning of ‘wherever practicable’ such that it deletes it in practice. This is a concern because the requirements of the National File Standard must be subordinate to the legal requirements of the CPIA Code.
54. We would recommend that the police and CPS amend the National File Standard to reflect the requirement of the Code. We consider that it should be the norm for the prosecutor to be in possession of the unused schedule at an early stage and certainly in advance of the first hearing. This is perhaps more practicable in the less complex cases - the typical business of magistrates’ courts - which are the subject matter of this review.
55. The requirement to serve the unused scheduled on the defence is also set out in Chapter 7 of the CPS/ACPO Disclosure Manual at paragraph 7.1:

Present regime

“Non-sensitive unused material should be described on the MG6C^14. This

form will be disclosed to the defence.”

56. This practice is also referred to detail in chapter 12 of the Manual which sets out the process. It has grown up over time as a means for demonstrating the status of material and is referenced in three joint CPS/Police guidance areas: (i) CPS/ACPO Disclosure Manual; (ii) Manual of Guidance – joint ACPO/CPS document in which all MG forms can be found; and (iii) National File Standard Guidance – which states that it should be part of the file served on the defence.
57. We are concerned about what we have been told by a number of defence representatives, who report that in practice it is not uncommon for no schedule (or any written confirmation as to the prosecution having complied with their disclosure obligations) to have been served on them by the date of the summary trial.
58. The CPS National File Standard does not allow for unused schedules to have been submitted to the CPS prior to the first hearing because of the belief that a staged and proportionate approach to file building is optimally efficient.
59. We consider that the police and CPS should ensure that in contested cases the unused schedule (or a report that states the exercise has taken place, together with any disclosable material, if applicable) should be provided to the prosecutor as soon as possible, such that it can be served at the first hearing , once the not guilty plea has been confirmed. If the schedule is not available, trial preparation case management must still take place, with as much as practicable being achieved at this first hearing, including giving directions for disclosure. Therefore, even without it the case must be properly case managed.
60. The current wording of section 13 CPIA states that in the magistrates’ court this should be done, ‘ as soon as is reasonably practicable after the defendant pleads not guilty .’ Notwithstanding the flexibility of this formulation, we strongly believe that for pragmatic reasons of case management, the unused schedule should be available and provided to the defence at court at this stage.
61. In maintaining this discipline, the first hearing can be meaningful and the court will be greatly assisted in its case management duties.

Criminal Procedure Rules

62. Part 22 of the Criminal Procedure Rules deals with disclosure and applies in both the magistrates’ and Crown Court. It sets out the procedural requirements of the CPIA and the notes at pages 126 to 129 of the 2013 Rules set out relevant sections of the Act.

14 The MG6C is the police form in which the disclosure officer lists and describes all relevant, unused material.

Concerns

Concerns about the present system

65. There are a number of reasons behind disclosure inefficiencies, for example: blanket requests for disclosure on the part of some defence practitioners, compounded by a lack of understanding on the part of the magistracy as to the requirements of disclosure and a decision or direction to disclose material that does not meet the test that the prosecution must apply to it. It appears to us however that these matters are secondary causes or effects. What we have heard from almost all consulted is that the primary cause of the majority of disclosure problems lie at the door of the prosecution.

Prosecution

66. A common theme that has arisen at our meetings is the prevalence of prosecution late or non-compliance with its initial and/or continuing disclosure obligations. This frequently leads to ineffective trials, delay and the incumbent costs in both financial and human terms.
67. Many practitioners observe that there is a procedural rather than substance difficulty in most cases. The material listed on the unused schedule (and often any items disclosed) frequently has limited, if any, bearing on the outcome of cases tried summarily. With that in mind, it is all the more frustrating for procedural failures in the disclosure process to lead to a case collapsing, or suffering delay.^17
68. We conclude from our discussions with all those we consulted that one of the principal reasons for disclosure failure stems from an inability to organise and serve material within the requisite time. This appears to be due to poor time and file management, and/or ineffective strategies in place to allow work to be conducted in the timeframe allowed.
69. It is appreciated that resource implications play a significant part in what is happening within the prosecution agencies, both police and CPS, and the effect that this is having on performance. Both have been and continue to be required to make significant savings and we understand that restructuring and prioritising specific areas is essential to cope with the reduced budget.
70. We have been told that the CPS is dividing its operations into magistrates’ and

17 The Criminal Cases Review Commission informed us that between 1 April 1997 and 22 November 2013, the Commission has received a total of 16,938 applications. of which 1,432 were applications seeking a review of a Magistrates’ Court conviction. This means that approximately 8.5% of the Commission’s casework relates to Magistrates’ Court convictions.. Of the 1,432 Magistrates’ Court conviction applications, 30 cases were referred back to Crown Courts for a fresh appeal hearing. Of the 30 Magistrates’ Court convictions that the Commission has referred, 6 cases have featured a significant non-disclosure issue (approximately 20%). In addition, the Commission has identified a further 4 cases in which non-disclosure was a significant issue but did not result in a referral. In 7 of these 10 cases, the non-disclosure related to information pertaining to the credibility of a complainant or key prosecution witness(es). This is a theme that is also present in a significant proportion of the Commission’s referrals to the Court of Appeal in respect of Crown Court convictions and may therefore be indicative of a wider problem within the CJS.

Concerns

Crown Court case work teams and reducing the number of offices. Processes are being digitalised, with unused material and schedules now being stored and transmitted digitally.

71. We also understand that as part of the CPS streamlining work, they are likely to replace the unused schedule with a short disclosure report in anticipated not guilty plea summary cases. We have not seen an example of the proposed report, so are unable to comment further on this. The CPIA Code of Practice will need to be amended in this regard, but we mention it here to ensure that any reference or recommendation we make in relation to disclosure remains relevant.
72. We are also aware that standardised national operating procedures have been developed recently, including those dealing with CPS disclosure obligations. We would hope that these developments and changes to the system will improve timeliness and efficiency, in line with the relevant recommendations in this review.
73. We consider below specific stages of the process and how these may be improved. It will also be of benefit to note the table featured at Annex B which sets out the process of disclosure as undertaken by the prosecution in summary trials. This sets out both the stage (in chronological order) and the legislation and guidance document(s) which govern the process.

(i) Delays in the police investigation

74. There is widespread concern among those we consulted at the delay between the arrest or interview of a suspect, and the issuing of proceedings by way of summons, charge, or requisition. This has also been the subject of public debate in another context. In short, an unnecessarily lengthy investigation can mean that evidence is stale when it comes to court. This can lead to injustice. Similarly it is often unjust to victims, witnesses and eventual defendants, for whom an early resolution is normally desirable.
75. In the limited context of this review, we have considered the disclosure obligations under common law, as set out in ex parte Lee , above. That obligation recognises that material should be disclosed at an earlier stage than required by statute when it, “includes material which will enable the defendant and his legal advisers to make preparations for trial which may be significantly less effective if disclosure is delayed (e.g. names of witnesses who the prosecution do not intend to use).”
76. The longer the delay, the greater the likelihood that evidence (such as CCTV) will be lost or destroyed, and the harder it will become to trace witnesses or for those potential witnesses to remember events fully and clearly.
77. In some cases a protracted investigation is unavoidable. There may be a number of lines of enquiry to follow. There may be a need for detailed and lengthy forensic science