Written Evidence from NPCC and CPS (DIS0057)

Introduction

1. The CPS and NPCC are responding jointly to this inquiry in recognition of our inseparable and overlapping roles in the disclosure process. We agree that disclosure is the joint responsibility of the prosecution team, and neither of us can begin to make substantial improvements without the close cooperation of the other. It is for this reason that we have also developed a joint National Disclosure Improvement Plan, which we have sent to the Committee separately.

2. The CPS and the police both recognise that ensuring fair trials is at the core of our mission.  We seek to build strong cases where we think that there is enough evidence to prosecute and that it is in the public interest to do so.  But we also recognise our role in protecting those who are innocent from unjustified prosecution as part of ensuring that justice is done and that the public can have confidence in the fairness and effectiveness of the criminal justice system.

3. Our performance on disclosure has generally not been good enough. The criminal justice system has historically struggled to deliver consistent disclosure practice, and both the CPS and the Police service have found it difficult to make the disclosure process work as well as needed in every case. We have not reacted quickly enough to previous reports into this issue, including the joint HMCPSI and HMIC report last July which highlighted many of the issues we discuss below. On the back of that report the Director of Public Prosecutions convened a Disclosure Summit involving partners from across the criminal justice system, and we developed the National Disclosure Improvement Plan referred to above. We recognise the seriousness of the issue and the impact on individuals, suspects and complainants.

4. While recognising the challenges, we have also identified good practice from which we can learn. Richard Horwell QC noted in his review of R v Mouncher that we have made progress on managing disclosure effectively in more complex casework. In a recent historic sexual offences case (R v Soper) HHJ Bate noted when sentencing on 21 December 2017 that the disclosure exercise was a ‘model of good practice’ on the part of the Metropolitan Police, the prosecution and the defence. Our National Disclosure Improvement Plan therefore includes a number of measures which have already proved successful in complex casework. It also appears that performance is beginning to improve in the magistrates’ court, particularly with respect to the timeliness of our service of documentation, but we have much more to do.

5. We have designed the joint National Disclosure Improvement Plan together to make sure we address the problems highlighted in the Inspectorates’ report, many of which span our respective responsibilities. With many actions in the plan already well underway, we have invited HMCPSI to conduct an examination of progress this Autumn.

6. This plan is the product of an unprecedented level of collaboration between the CPS and the police in addressing disclosure problems.  However, we also need to work together with the judiciary, the defence and Government to make real, sustainable and systemic change. We hope that the inquiry’s recommendations, along with those of the Attorney General’s review and our efforts through the improvement plan, can bring the criminal justice system together to solve both historic and emerging challenges with disclosure.

7. We have also set in hand work to anticipate and respond to the challenge of an increasingly digital age.

8. The rapid and significant increase in the amount of digital material is not the root cause of the criminal justice system’s historical problem with disclosure. But it poses substantial challenges for investigators and prosecutors seeking to comply with the regime by identifying disclosable material. This challenge will only grow as the amount of digital material continues to increase.

9. The complete works of Shakespeare, 884,421 words, represents only 0.0016% of the storage capacity of an iPhone X. Some mobile devices contain over 200,000 iMessages and over 100,000 photographs, and the storage space of smartphones continues to increase. Phones hold much more data than they did when the Attorney General’s guidelines were published in 2013, and clearly smartphones didn’t exist when the Criminal Procedures and Investigations Act (CPIA) was passed in 1996.

Background

10. For the purposes of this submission it is important to note the formal definition of ‘evidence,’ as opposed to ‘material,’ and how this relates to the disclosure process. Evidence is the material used in a court of law to prove a case. Evidence is obtained from documents, objects or witnesses. Material is anything generated or obtained in the course of the investigation.

11. During the course of an investigation the police will generate lots of material – for example witness statements, documents, objects, correspondence, records, logs, forensic material etc. Some of that material will be required to prove the case. That material is assessed by the prosecutor and will be served upon the defence as the evidence in the case.

12. The police decide what of the remaining material may be relevant to the investigation. According the Criminal Procedures and Investigation Act (CPIA) Code of Practice, material which may be relevant is defined as anything that appears to an investigator, or the Officer in the Case (OIC) or the disclosure officer, to have some bearing on any offence under investigation or any person being investigated or on the surrounding circumstances. Material is relevant, therefore, unless it is incapable of having any impact on the case. If there is any doubt, officers should include the item or ask the prosecutor for guidance.

13. The police make the prosecutor aware of relevant material by itemising it and describing it on a schedule (in the Crown Court) or a Streamlined Disclosure Certificate (in the magistrates’ court). Only relevant material is included on the schedule or certificate. Relevant material obtained in the course of the investigation which is not relied upon as part of the prosecution case and so is ‘unused’ material because it is not required in order to prove the case.

14. As section 3 of the CPIA makes clear, disclosure requires the prosecution to “disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.” Prosecutors apply this test, and disclose any unused material which meets it to the defence.

15. In its narrow sense therefore, disclosure refers to the provision to the defence of material that has already been obtained during an investigation. For this process to work as intended, the right decisions must be made on what material is relevant, and what relevant material meets the test for disclosure. In several recent high-profile cases, failings have not specifically concerned the correct application of the disclosure test. Instead, they have raised questions about whether the right material has been obtained or generated in the first place (in other words, whether the right lines of enquiry have been followed in the investigation), and whether police officers have properly inspected that material to determine what is relevant. These questions are particularly acute in cases involving communications data, as described in more detail below.

Answers to Committee’s questions for written evidence

Are the current policies, rules and procedures satisfactory to enable appropriate disclosure of evidence and support the defendant’s right to a fair trial?

16. The CPIA provides a principled, Article 6 ECHR-compliant disclosure regime. There may be merit however in exploring whether existing guidance and legislation should be updated given several recent changes in the criminal justice landscape. Technological change, a drive towards a quicker criminal justice process and a more complex caseload all mean that the criminal justice system looks very different than it did when CPIA was passed in 1996, or even when the Attorney General’s guidelines were issued in 2013. Through our joint National Disclosure Improvement Plan, we are working to adapt our policies to these changes, but there are also systemic issues that we cannot resolve alone. We stand ready to assist the Committee in any way possible as it considers these points, and we are working to inform the Attorney General’s review of disclosure.

How effective are current policies, rules and procedures – particularly in light of the growth in electronically stored material (such as text or social media messages)?

17. The disclosure process is working more effectively in some areas of casework. For example, since the CPS redesigned its approach to disclosure in serious and complex cases in 2012, disclosure in these cases has improved significantly, as noted in Richard Horwell’s 2017 report on R v Mouncher. Transforming Summary Justice also appears to be having a positive effect on some aspects of disclosure processes in the magistrates’ court, though there are clearly some remaining issues which we touch on later in this evidence. Our most serious concerns lie with volume Crown Court casework, which much of this evidence focuses on.

18. It is also important to emphasise the difference between disclosure processes for cases charged under the Full Code Test, and those charged under the Threshold Test.

19. The Full Code Test has two stages – the evidential stage; followed by the public interest stage. To pass the evidential stage, the Code for Crown Prosecutors states “prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge.” A case cannot proceed if it does not pass the evidential stage, no matter the public interest. If it passes the evidential stage, prosecutors must then determine whether a prosecution is required in the public interest.

20. The Code also states “In most cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed.” Since the investigation should be complete before a charging decision is made, late disclosure should be rare if processes are operating effectively.  In reality, though, there is often disclosure of further material following the charging decision.

21. According to the Code, the Threshold Test “may only be applied where the suspect presents a substantial bail risk and not all the evidence is available at the time when he or she must be released from custody unless charged.”

22. There are four conditions which must be met before a case can be charged under the Threshold Test:
• there is insufficient evidence currently available to apply the evidential stage of the Full Code Test; and
• there are reasonable grounds for believing that further evidence will become available within a reasonable period; and
• the seriousness or the circumstances of the case justifies the making of an immediate charging decision; and
• there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do so.

23. Unlike the Full Code Test, which requires “sufficient evidence to provide a realistic prospect of conviction,” for the Threshold Test “prosecutors must be satisfied that there is at least a reasonable suspicion that the person to be charged has committed the offence.” This decision will be made on the basis of limited material, usually consisting of statements from key witnesses. This is applied only where the suspect is a bail risk; where they may commit further offences, interfere with witnesses, or flee.

24. The investigation is not complete at the time the Threshold Test is applied. This means that, inevitably, further evidence or unused material will become available after charge. If all evidence were available at the point of charge, then the case would be considered using the Full Code Test. Later emergence of new material is therefore unavoidable in these cases, and a review of a telephone download for example, may reveal material that is so undermining to the prosecution case that there is no longer a realistic prospect of conviction and the case will be stopped. Although prosecutors and police officers should endeavour to discover and review this material as quickly as possible, the pressures on resources in obtaining a download of the telephone and reviewing it, or conducting further enquiries, mean that the defendant may have spent time in custody before a case is resolved. 

25. The increase in electronically stored material is a relatively recent and increasing phenomenon with a profound impact on the task of disclosure. The Criminal Procedures and Investigations Act 1996, and even the 2013 Attorney General Guidelines, were not designed with the sheer volume of digital unused material that is now common to volume crime cases in mind.

26. This has been a particularly strong factor in those cases where much media scrutiny has focussed in recent months. The same issues will also apply in other cases where the victim and defendants are well known to each other, in large fraud cases and in terrorism cases where the amounts of digital material are likely to be large. For example, the recently introduced offence of coercive and controlling behaviour is intensely focused on the ongoing relationship between complainants and defendants. We now have access to much more personal information on both the suspect and complainant than we had before. The question arises as to what is a reasonable line of enquiry to point to innocence or guilt. In cases where the parties are known to each other, there will frequently be relevant material on a mobile telephone or in a social media account. Downloading a complainant’s telephone means taking it away from them, in a process where many months can elapse due to capacity issues. It is an intrusion into the complainant’s privacy and denied access to a telephone could cause serious financial and social hardship or risk to personal safety, but if it is a reasonable line of enquiry then the investigator is bound by the CPIA to pursue it. Officers and prosecutors should be allowed sufficient discretion to adapt their choices to the circumstances of individual cases, but this presents a difficult judgement in many cases.

27. Practically, it also takes much longer to review unused material in these cases. Even where a phone is not fully downloaded, police officers may be expected to precisely and reliably review tens of thousands of pages of unused material. Disclosure officers (or their deputies) must inspect, view, listen to or search all relevant material that has been retained by the investigator and the disclosure officer must provide a personal declaration to the effect that this task has been undertaken. In some cases, a detailed examination of all material seized may be required. In others, however, a detailed examination of every item of material seized would be virtually impossible.

28. The use of appropriate search and sampling techniques has been validated by the Court of Appeal in R v R & Ors [2015] EWCA Crim 1941. Where there is an enormous volume of material it is perfectly proper for the investigator/disclosure officer to search it by sample, key words, or other appropriate search tools. However, this approach does not lend itself as easily to rape and sexual offences.  Key words that identify an absence of consent, typically the issue in such cases, may not be as easy to identify and the use of slang and emojis make searches a less reliable tool.

29. Reviewing downloads of these devices manually with existing resources is unrealistic and unsustainable. To rectify this, we seek the following:

• new guidance or legislation addressing disclosure of digital material that is achievable with existing resources; and,
• the capital and expertise to enable a technological solution.

To what extent (if at all) have any recent or ongoing changes to the wider policy landscape, including in relation to legal aid, had an impact on disclosure?

30. The criminal justice system has faced competing pressures in recent years which have had a cumulative impact on disclosure. First, despite a decreasing caseload overall, the complexity of cases prosecuted has increased in recent years. Between 2012 and 2017, there have been significant decreases in prosecutions for offence types such as theft and handling, burglary, and motoring offences, but significant increases in prosecutions for more complex offence types - namely sexual offences (up by 62%) and homicide (up by 46%). We also saw a 55% increase in the number of terrorism trials in 2016/17.

31. Second, the Transforming Summary Justice and Better Case Management initiatives have rightly encouraged faster, more efficient justice in order to minimise the impact on those involved and support public confidence in the effectiveness of the system. The criminal justice system has redesigned itself to meet case management deadlines to ensure the timely progression of cases. Hearings per case over the period 2013/14 to 2016/17 decreased in contested cases, from 3.38 to 2.92 in the magistrates’ court and from 5.36 to 4.89 in the Crown Court, and there is an understandable desire to do more and improve the speed at which cases progress, with all the benefits that brings for victims, witnesses and defendants as well as efficiency. But, in the context of disclosure, this can mean less time to review unused material, improve schedules, clarify issues with the defence, and fewer opportunities for the judiciary to resolve disclosure issues during hearings. There is a balance to be struck between speed and the ability to conduct a thorough process for all cases.

32. Third, as mentioned previously, the sheer increase in the volume of digital material is having an impact on our capacity to effectively fulfil our disclosure obligations. To date, the increase in the volume of electronic material has to some extent been absorbed by efficiency improvements elsewhere in the system. But recent cases show that the continued increase in volume combined with cumulative resource pressures on the criminal justice system mean that this is not a sustainable position.

How do the current policies, rules and procedures on disclosure operate in practice and are there any practical barriers to them working effectively?

Data

33. CPS data on cases that are stopped due to disclosure refers to cases in which we when we are either unable to meet our disclosure obligations, or have failed to do so. Examples include circumstances in which the obstacles for prosecutors in obtaining details of unused material from the police are so great that prosecutors decide that the case cannot proceed. We have provided this data previously and it is set out in Table 1 below. A breakdown by magistrates’ courts and Crown Courts, and by Principle Offence Category, is provided at Annex A.

Table 1: cases dropped due to disclosure issues

34. Many recent high-profile cases have been stopped, not because of a failure to disclose, but because of the late emergence of new relevant material which, when considered by the prosecution, results in the stopping of a case. This may not be captured in our performance data as a disclosure issue, because in these cases there may not have been a failure in the application of the disclosure test. Instead, the material may have been incorrectly assessed as not relevant and therefore not listed as unused material; the lines of enquiry followed in the investigation were inadequate; or the officer missed that material in their initial inspection of all material obtained or generated during their investigation.

35. The ultimate reason for stopping cases where relevant material emerges late can vary. For example, new material may conflict with evidence previously relied upon as part of the prosecution’s case; it may bring into doubt the credibility of the complainant or a key witness; or it may convince a complainant to withdraw their support for the prosecution. But these outcomes can also come about for other reasons. Therefore our current breakdown of reasons for cases being stopped before a jury’s or magistrates’ decision does not give us any indication of whether those cases involved the late emergence of new material. A full list of reasons for cases which are stopped before the end of a trial or before a trial started is provided at Annex B.

36. We accept that given recent events, there is a public interest in recording this information and we will be exploring options for doing so.

37. In addition, following failures in recent high profile rape cases, we have re-examined every rape and serious sexual offence case that was current in January 2018. We did so to reassure ourselves and the public that these cases were being managed effectively. The results of this review are currently being analysed and will be published in the near future.

What is the normal practice of Police and the CPS in reviewing and disclosing evidence and what, if any, are the barriers to this working effectively? Are reviews and disclosures carried out at the right level, is training and guidance appropriate, and is there sufficient oversight of decisions?

38. Under the Criminal Procedure and Investigations Act 1996 (s.23(1)) Code of Practice, the police officer in charge of an investigation, as well as being responsible for directing a criminal investigation, must also take on the role of disclosure officer (unless a dedicated disclosure officer is appointed). The disclosure officer must examine all material retained by police during the investigation and provide to the prosecutor details of all unused material that is relevant to the case. This material should in turn be divided into sensitive and non-sensitive material. For cases going to trial at the Crown Court, the unused material should be brought to the attention of the prosecutor via the relevant disclosure schedules as part of the case submission process.

39. In addition, the disclosure officer must submit a Disclosure Officer’s Report (the MG6E) identifying to the prosecutor any material listed on either the non-sensitive or sensitive disclosure schedules, which satisfies the disclosure test in that it assists the defence case or undermines the prosecution case.  The non-sensitive disclosure schedule (MG6C) requires the disclosure officer to list each item of unused material separately and consecutively and must contain sufficient detail to enable the prosecutor to decide whether they need to view the material before deciding whether or not it should be disclosed to the defence.

40. When the disclosure schedules are received by the CPS, it is the responsibility of the prosecutor to review the schedules thoroughly and identify relevant material which may exist and which has not been revealed to them.  Prosecutors are also expected to ask for further detail where necessary and to reject substandard schedules and insist that a fully compliant schedule is produced.

41. The CPIA imposes a continuing duty on the prosecution team to disclose material which satisfies the test for disclosure. The disclosure officer is required to support the prosecutor, in that they must regularly review the unused material and provide updates on the MG6. If new material comes to light the police must also provide further schedules and an accompanying Disclosure Officer’s Report which is signed and dated and highlights any material which satisfies the disclosure test. The prosecutor should also approve the schedule to show they have accepted it and complied with their obligations under the CPIA.

42. In most cases the trigger for further review of material is receipt of the defence statement. The defence statement must provide the nature of the defence relied upon, the matters of fact upon which the accused takes issue with the prosecution, and any point of law which the accused proposes to take. Upon receipt of the defence statement, the Attorney General’s Guidelines on Disclosure state that:

“Prosecutors should copy the defence statement to the disclosure officer and investigator as soon as reasonably practicable and prosecutors should advise the investigator if, in their view, reasonable and relevant lines of further enquiry should be pursued”.

43. In practice, the process often operates differently. Police schedules frequently contain inadequate or incomplete descriptions of unused material, and instead of challenging the police until those schedules are acceptable, prosecutors sometimes submit poor initial schedules and attempt to improve them as the cases progresses. This is often a consequence of seeking to adhere to stringent timeframes. Sometimes, the unused material is not adequately inspected by the Disclosure Officer, and prosecutors do not interrogate the material they receive sufficiently. Prosecutors often forward defence statements directly to officers without explanation, especially when the defence statement is served late. These were issues highlighted to us in the HMCPSI/HMIC Report on disclosure published in July 2017.

44. Our joint National Disclosure Improvement Plan identifies the following key reasons for these problems:

Capacity

45. Across the criminal justice system resources have been stretched as the nature of the crimes we investigate and prosecute continues to evolve. The intentions of the statutory disclosure scheme remain the same; principally, to assist the defence in the timely preparation and presentation of its case, to enable the court to focus on all the important issues in the trial, and ultimately to ensure justice is done.

46. But while the principles remain unaltered, the working practices of the police service and Crown Prosecution Service have had to respond to significant developments. There has been a large increase in the volume of digital material created in criminal investigations, with greater strain being placed on the capacity for CPS lawyers and individual officers to consider disclosure. With such a large mass of material, it can be unclear what to look for in the absence of a defence statement or a response from the defendant when interviewed by police.

47. There is a significant resource implication to be considered concerning digital media collected during an investigation, which is invariably complicated due to the sophistication of mobile devices and the extremely large amount of data that requires capturing, analysing, reviewing and disclosing where appropriate.  This puts significant pressure on police digital forensic resources leading to delays.

48. Investigating officers are required to pursue all reasonable lines of enquiry, whether to exonerate or support the case against suspects, under the Code of Practice issued under the CPIA. This will often include obtaining and analysing communication data originating from devices belonging to the complainant, the suspect and, on occasion, third parties.

49. Prosecutors should be alert to the critical importance of such material. Where such lines of enquiry have not been undertaken prosecutors should advise the police to pursue them.

50. There is a further significant resource implication in the capturing of third party material, which also requires examining and disclosing where appropriate, including in the historic sexual offences investigations which have increased dramatically over recent years but often also in cases involving recent sexual offences. This can be a further cause of delay and more recently the CPS has required this material to be submitted with the file when considering charge. The inevitable consequence is a delay between report to the police and charge, which can have an adverse impact on complainants and give rise to criticism by others.

Capability

51. It is apparent from both the HMCPSI/HMICFRS and Mouncher Investigation reports that whilst there are examples of good practice, there is a general lack of understanding concerning disclosure responsibilities within the police service and that, in volume Crown Court cases, prosecutors sometimes fail to challenge poor quality schedules and in turn provide little or no input to the police.

52. The CPIA clearly states that the duty to disclose information rests with the officer in the case or a designated disclosure officer. It is therefore imperative that all officers and police staff involved in investigations have a good working knowledge of the disclosure rules.

53. Disclosure issues need to be considered as an integral part of all investigations, rather than an additional responsibility added on at the end when preparing a prosecution file. It is recognised that the current training delivered is not successfully providing the appropriate knowledge and skills for large sections of the police service and that there is a lack of consistency among police officers on what constitutes a reasonable line of enquiry in any particular case, particularly with regard to unused material. Prosecutors are currently given mandatory online disclosure training, and face-to-face disclosure training for those conducting serious or complex casework. From September, the CPS will be rolling out face-to-face disclosure training for all prosecutors. We have invited defence practitioners and members of the Bar to review the materials we are developing.

54. Responsibility for developing police training rests with the professional body, the College of Policing. Hitherto, rather than being trained as a distinct topic in its own right, disclosure has been woven in to other related subject areas, such as investigation practice and therefore has been delivered in modular fashion at different stages in an officer’s career, i.e. on qualifying as a detective, becoming an advanced interviewer and training associated with specialist roles. It is acknowledged that this approach has left a skills gap for many officers, which is exacerbated with the passage of time as more experienced colleagues move on or leave the service.

55. It is also acknowledged that ongoing training at force level has been neglected as competing priorities and budgetary restraint have eroded the priority given to this area of business. There has been an absence of senior police leaders actively championing the disclosure cause and this has contributed to what might be described as a shift in mindset concerning disclosure, particularly in volume crime, from it being considered an investigative cornerstone to simply one of a number of administrative requirements to be completed at the end of an investigation. Additionally, in response to the need to find savings, many forces have re-designed their policing model and moved away from a ‘streamed’ approach to a more omni-competent model, with officers being expected to fulfil a range of activity including investigation and case file preparation, whereas before these functions were performed by dedicated teams.

56. Additionally, Police and CPS training has not kept pace with technological advances. Forensic tools are constantly improving, and police and the CPS need to understand the material they receive and what else might be available to help make quality decisions about disclosure and investigative lines of enquiry. Our joint Disclosure Training Group is considering this as part of its remit.

57. The process by which disclosure is quality assured in the CPS has been reviewed recently to ensure that prosecutors positively engage with officers on issues relating to unused material at the charging stage of all cases. Both services need to learn from the significant improvements that have taken place in the most complex investigations, trying to ensure early engagement between prosecutors and police officers and establishing reasonable lines of enquiry at the charging stage of all cases.

58. We recognise that there has not been enough oversight of both prosecutor and police decisions on disclosure outside of complex casework. The CPS are introducing Local Case Management Panels for disclosure in volume cases, mirroring current practice for complex casework, and reviewing their Individual Quality Assessment process to ensure it focusses more directly on disclosure.

Leadership

59. The Disclosure Summit convened by the Director for Public Prosecutions provides, for the first time, system-wide leadership for this critical issue. As well as establishing governance arrangements to oversee delivery of the National Disclosure Improvement Plan, the creation of the National Police Disclosure Working Group and its panel of disclosure experts, local CPS and Police Disclosure Forums, NPCC policing leads and CPS Disclosure Champions will ensure that changes are driven and embedded throughout both services.

60. The NDIP sets out the actions that the police and CPS are taking jointly to address these issues including further training of police officers and prosecutors on disclosure, publication of a revised disclosure manual to clarify what is required, investigation of what technological tools might assist with the examination of the material and stronger national and local leadership and oversight of the operation of the disclosure process.

What is the normal practice of the defence in making disclosure requests, and of the courts in dealing with applications for prosecution disclosure and setting timetables, and what (if any) are the barriers to these procedures working effectively?

61. CPIA provides that a defendant may, in a magistrates’ court case, and must, in a Crown Court case, provide the details of the defence on which they intend to rely, in a defence statement. The defence at this time will make requests for material they consider should be disclosed to them in the light of that defence. The defence statement is therefore an important mechanism for triggering further examination of unused material by the prosecution.  Under the CPIA Defence Disclosure Time Limits Regulations 2011, defendants are obliged to comply with their disclosure obligations by serving this defence statement within specified time frames; 28 days for compulsory disclosure in Crown Court proceedings and 14 days for voluntary disclosure in magistrates' court proceedings from the day on which the prosecutor complies or purports to comply with the initial duty to disclose. 

62. The defence statement is often not supplied within these timescales and/or does not always provide the necessary level of detail of the defence and/or specify why material is sought, which has an adverse impact on the ability of the police and prosecution to fully discharge their respective disclosure obligations. The information is often requested in other ways than through a defence statement, frequently in multiple requests and not compliant with the CPIA. This in itself does not help the process and often makes it more difficult and time-consuming. Compliance with the correct process under CPIA by all parties would assist. We would like to work with the courts to find ways to enable the judiciary to robustly case manage disclosure issues from the outset. We have also been discussing with HMCTS potentially enabling the Digital Case System to accommodate disclosed material.

How has Transforming Summary Justice changed disclosure practices in the magistrates’ courts and how effectively does this work in practice?

63. We are grateful for the findings of HMCPSI’s Transforming Summary Justice (TSJ) follow up report of June 2017 – Business as usual? – which found that TSJ had delivered significant efficiencies for the criminal justice system dealing with magistrates’ court work. It also provided some evidence of improvement on disclosure in the magistrates’ court, though it concluded that there is still ‘significant room for improvement.’

64. In their report, HMCPSI assessed that the duty of disclosure of unused material was complied with fully by prosecutors in 56.9% of applicable cases within the file sample. This was a marked improvement on the previous inspection when only 34.8% of cases met expectations.
65. While it does not relate directly to disclosure, the report also found some improvement in timeliness of service of Initial Details of Prosecution Cases (IDPCs). IDPCs include a summary of the evidence on which a case will be based, and disclosure of material necessary for legal advisors to assess the prosecution case and give informed advice as to whether to consent. Timely provision of IDPCs therefore can be important to the operation of the disclosure process in the magistrates’ court.

66. While this is clearly still an area requiring improvement, the report found that in 83.5% of cases, the IDPC bundle contained sufficient information to enable all parties to conduct effective case management, compared to 66.4% in their 2015 report.  Crucially, early service of IDPC on the defence is proving more difficult due to defendant behaviour, for example, late instruction of representation, either just before or on the day of the first court hearing.  CPS data shows that only 20% of defendants obtain legal representation before the first hearing.  Effective and consistent service of IDPC cannot happen without notification of defence representation. The criminal justice system needs to work together to address this significant and far reaching issue.  

67. The Inspectorate also found police compliance with their disclosure obligations was not up to standard. The inspection sample showed police compliance fell below the required standard in 40.7% of cases. In some cases schedules were not supplied, items were poorly described and/or wrongly listed. This is in line with failures seen in volume crime in the Crown Court, and the joint National Disclosure Improvement Plan contains a number of measures to address this.

68. Some magistrates’ court cases are misidentified as Guilty Anticipated Plea (GAP) cases when they should be identified as Not Guilty Anticipated Plea (NGAP) cases, and as such should be subject to case management steps not required of GAP cases.

69. This misidentification means essential disclosure and case management steps do not take place when they should, delaying case progression. Disclosure regimes for magistrates’ court and Crown Court cases are not the same.  Streamlined Summary Disclosure (SSD) applies to any case which is summary only or which, on a reasonable assessment of the case, is likely to remain in the magistrates' court.  Cases involving indictable only offences, or either way offences likely not to be suitable for summary trial, require disclosure to be prepared by completing the MG6 forms.

70. If a defendant enters a guilty plea at the first hearing, disclosure of unused material is not triggered and there is no requirement for further disclosure to the defence.  However, if, at first hearing in a GAP court, a defendant enters a not guilty plea, the prosecutor then needs to request additional material from police to comply with the requirements of an NGAP file.  Had the NGAP been identified earlier the full file would have been requested at the outset and the first hearing would be at an NGAP court.

71. The HMCPSI report identified areas for improvement and that work is already underway and will be further reinforced by the National Disclosure Improvement Plan which Police and CPS are committed to delivering.  

How frequent are applications for disclosure of sensitive material, and how are they handled by the prosecution, the defence and the courts in practice?

72. For the purposes of this inquiry ‘sensitive’ could mean either:
1. confidential personal information such as private communications, medical records to include counselling records, social services and school records; or
2. as defined by the CPIA Code of Practice, material which the disclosure officer believes would give rise to a real risk or serious prejudice to an important public interest if disclosed.

73. If the prosecution is in possession of material of type (a) they will have already reviewed this material to determine whether or not anything falls to be disclosed in accordance with CPIA.  Any such material will be disclosed after obtaining the necessary permissions from third parties. 

74. A CPIA 1996 Section 8 application for material of type (b) can only be made after service of a defence statement, by which time any such material that the Crown consider falls to be disclosed should have been disclosed. Section 8 applications are rarely needed. In some cases defence applications for sensitive material are made directly to the relevant third parties but this is not conducted under the auspices of section 8. The Crown will actively consider whether an application for Public Interest Immunity is required. In practice sensitive material is normally handled well, and by our complex casework teams.

75. The CPS does not hold data on the number of defence applications for sensitive material.

What improvements (if any) are needed to improve disclosure and ensure that fair trial rights are protected?

76. As set out above in paragraphs 25 to 29, we believe the disclosure process needs to adapt to the rapid increase in volumes of digital material. We have requested the following:
1. Update of guidance and/or legislation to ensure the disclosure system enables rigorous and sustainable review of digital material in volume cases;
2. Expertise and capital to enable development of technology to assist in the reviewing of large amounts of digital material in volume cases.

77. Notwithstanding the Government response, the CPS and the police have set out in the National Disclosure Improvement Plan the actions that we are taking, and will take, to improve performance on disclosure. We have already made progress on this plan. In summary, we have:

• Developed a modernised interface to sections of the CPS case management system to make it easier for all users to find, sort and classify material.
• Started work on a joint protocol to deal with the identification, handling and disclosure of third party material to be completed in March 2018.
• Reviewed the police HOLMES computer system to ensure it allows for the correct handling, storage and disclosure of sensitive material.
• Developed a business case for funding and started design activities, for a police Digital Evidential Transfer System (DETS). This will be a single national repository for digital material seized by the police.
• Refreshed the CPS Disclosure Manual and published this in February 2018.
• Reviewed our guidance on speaking to witnesses and set out in terms how this should be recorded and disclosed.
• Provided all prosecutors with access to disclosure training via the Prosecution College.
• Initiated development of a suite of national standard forms covering third party material examination, retention and disclosure.
• Established CPS national and Area disclosure champions in all of our Crown Court and magistrates’ court teams.  These champions are specialists in disclosure in their units and also provide an assurance for their part of the business through supporting the Chief Crown Prosecutors to complete disclosure assurance, taking forward strategic discussions with investigators and supporting training in their Areas.
• Developed best practice from the CPS serious casework regime and extended the use of the Disclosure Management Document to Rape and Serious Sexual Offences Units and Complex Casework Units, with a view to extending to all volume casework after a trial period.
• Appointed a NPCC lead for disclosure and a nominated disclosure champion in each force at chief officer level.
• Appointed force disclosure experts from each region to the National Police Disclosure Working Group.
• Appointed a tactical disclosure lead at chief superintendent/superintendent level in each force.
• Implemented pre-charge case assurance discussions led by senior CPS legal managers with prosecutors in cases where there are likely to be significant disclosure complexities.
• Developed a joint CPS/police disclosure improvement plan for each force and CPS Area reflecting local issues and national agreed priorities.
• Established a joint technology working group to explore the use of a range of digital tools to assist in the review of digital material.

78. In addition we have committed to:

• Develop a joint protocol for the examination of digital media to include an agreement on each case between the disclosure officer and the prosecutor as to the reasonable lines of enquiry proportionate to each investigation.
• Provide all multimedia evidence from the CPS to the defence via direct electronic link.
• Develop a cadre of specialist and experienced disclosure experts in every police force, available to conduct sampling, local training and assistance in complex cases.
• Deliver additional mandatory disclosure training through Chief Crown Prosecutors to all prosecutors in their Area.
• Create national minimum standards on quality and content for the MG6 disclosure schedules. A memorandum of understanding between the police and the CPS will be published.
• Review the current provision of disclosure training with the College of Policing and report with recommendations.
• Deliver regional awareness workshops with the College of Policing to address disclosure issues highlighted in recent cases.
• Review, together with the College of Policing, whether there should be a requirement for officers to hold a Licence to Practice in respect of disclosure.

What would be the resource implications of any changes to policies, rules, procedures, or any changes to operational practices?

79. Clearly this would depend on precisely what the changes were. For example, if the police and CPS were expected to carry out and analyse full phone downloads in more cases involving communications data, as the defence and judiciary have been increasingly pressing for in individual cases, this would require considerably more resource than is currently allocated to the task of disclosure. The police would need more resource to process these downloads and review them, and the prosecutor would need more time to satisfy themselves that this has been done effectively. This would not be a requirement unique to RASSO cases and would not conform to the well-established principle of a proportionate investigation.

80. This way of doing things would also be likely to have a large impact on the timeliness of case preparation which in turn would impact on victims and could undermine public confidence in the fairness and effectiveness of the CJS.

81. The system is currently resourced according to the duties for each party as set out in CPIA. If there were to be a reallocation of responsibilities under a revised CPIA or guidance that flowed from it, this may impact on resource requirements too.  For example, if there were a greater expectation for prosecutors to involve themselves in police disclosure work in more detail rather than continue with current assurance mechanisms, the CPS would need more resource to deal with that extra task.

Do the Police and CPS have credible plans to ensure they are able to respond to the changing nature and volume of evidence, including electronic evidence?

82. Significant work has already taken place in the CPS to manage cases digitally.  We are developing our IT infrastructure, and capacity exists to store and share material electronically using products such as the Evidence Management System.  The CPS is also currently testing an updated version of its case management system (Modern CMS) which has much clearer functionality for disclosure related tasks and assists better ordering of and access to unused material.

83. But we need to do more, particularly on improving our ability to analyse the material.  The recently established Police and CPS Technology Group is currently engaged with academic institutions, industry leaders such as Facebook and Google and technology agencies across government to identify how artificial intelligence and other analytical technologies can best be applied within the disclosure process.  This work is changing our focus from merely storing and moving material to developing the tools to analyse it and assist with decision making. But developing these sorts of tools will take time and resource.

84. In January 2012 against the backdrop of the Rose Review, the Gross Review, and Mouncher, the CPS undertook a complete overhaul of its approach to disclosure in serious and complex cases.  As a result, the CPS made mandatory, in certain categories of case, the Prosecution Strategy Document and for the court and defence “the Disclosure Management Document” which meant that there was early and meaningful engagement with the defence in defining the real issues in the case and how unused material is to be dealt with, which the court could be invited to adjudicate on if required. This practice ensured that disclosure was dealt with much more effectively in those large and complex cases prosecuted by the Organised Crime Division, the Specialist Fraud Division and the Counter-Terrorism Division.

85. As noted earlier in this document, the growth of the volume of digital material has meant that the challenges that were formerly confined to complex cases are now common in every case in which communications material is relevant to the investigation.  This will include allegations in which the complainant and suspect are known to each other.  We have therefore introduced a version of the Disclosure Management Document (DMD) for use in Complex Casework Units and rape and serious sexual offences for a 3 month trial, with a view to rolling out across Crown Court casework.

86. It is essential that disclosure issues are addressed pre-charge where possible and that disclosure is approached by both investigator and prosecutor through the exercise of judgment regarding what is and is not necessary in a particular case. The DMD will clearly identify what has been considered to be a reasonable line of enquiry in the case and why, together with an explanation of how all seized electronic material has been dealt with. 

87. The DMD will be shared with the defence and the court by the time of PTPH and the defence invited to comment and identify any additional lines of enquiry that they consider reasonable and which have not yet been undertaken. This will enable the Judge to robustly manage the case from the outset.

88. We believe that transparency of the approach to be taken to electronic material is crucial - the prosecution must be able to explain to the defence and the court what we are doing as well as, importantly, what we do not intend to do.

89. The examination of digital media in each case is to include an agreement between the disclosure officer and the prosecutor as to the reasonable lines of enquiry proportionate to each investigation. The document that the police submit to the prosecutor, the MG3, will be amended to require the police to identify to the prosecutor what they consider to be a reasonable line of enquiry in the circumstances of the case and to identify all of the electronic material that has been seized and the approach to it.

Annex A: further CPS data on disclosure

Table 2: cases stopped due to disclosure issues, by magistrates’ court and Crown Court

Table 3: cases stopped due to disclosure issues, by principal offence category

Annex B: Reasons for cases stopped before the end of a trial or before a trial started, 2016/17

‘P’ codes refer to a public interest reasons for stopping a case; ‘E’ to an evidential reason; and ‘O’ to other reasons.