DIS0083 - Evidence on Disclosure of evidence in criminal cases

Written evidence from Alison Saunders CB, Director of Public Prosecutions, Crown Prosecution Service (DIS0083)

Disclosure inquiry: Further information for the Justice Committee

Thank you for your letter of 13 June requesting further information following my evidence to the Committee earlier this month.

You specifically asked about the following:

Allocation of cases;
Engagement with defence;
Earlier engagement between police and CPS, including pilots and reasonable lines of enquiry;
The technology working group;
Training;
Definition and handling of complex cases;
Recording of the Liam Allan case;
Disciplinary processes, including data, relating to disclosure.

Allocation of cases

You asked how case allocations work in theory and practice, and how often prosecutors are able to follow a case from pre-charge to conclusion.

CPS pre-charge cases

CPS Direct mainly provide the charging decision for cases where the defendant is held in custody, as well as some bail cases, and for cases where a decision is required out-of-hours, i.e. after 5pm weekdays, weekends and bank holidays.

In respect of cases where CPS Direct has provided the charging decision, prosecutor allocation takes place as follows:

Cases where the defendant is on bail are assigned to the allocated prosecutor prior to the first appearance in the Magistrates’ court and kept until conclusion.
Cases where the defendant appears for the first hearing in custody are assigned to the allocated prosecutor after the first hearing and kept until conclusion.

CPS Areas provide the charging decision for most bail and some custody cases save for those investigated by the Metropolitan Police and Essex Police. However, by the end of 2018, CPS London and CPS East of England will take responsibility for these cases.

All complex cases and cases prosecuted by the Central Casework Divisions are allocated to a prosecutor at the Early Investigative Advice (EIA) stage of the case. The prosecutor will consider the charging decision on the case and if charged will retain the case throughout the prosecution.

Some RASSO and Homicide cases are charged on the threshold test. There are checks by managers in such cases to ensure case progression.

In respect of cases where the CPS Area has provided the charging decision, cases are assigned to the allocated prosecutor at this stage and kept until conclusion.

Police charge cases

Cases where a guilty plea is anticipated are not assigned to an allocated prosecutor. However, where the defendant enters a not guilty plea, the case is assigned to an allocated prosecutor after the first appearance.

Cases where a not guilty plea is anticipated are assigned to an allocated prosecutor prior to the first hearing. Again, the allocated prosecutor retains ownership of the case until conclusion.

The allocated prosecutor does not undertake the advocacy and due to listing constraints it is not possible to hear all cases assigned to one allocated prosecutor in the same court list.

The CPS previously operated a system where volume crime cases in the magistrates’ courts were not allocated to an individual lawyer but were owned and reviewed by a team of lawyers after a not guilty plea was taken. This was termed the Optimum Business Model (OBM), with the introduction of Transforming Summary Justice (TSJ) in 2015 this process was changed to ensure that all contested cases are allocated a reviewing lawyer before the first hearing who retains ownership until conclusion.

In June 2018 an analysis of 490 finalised cases was completed to assess the level of case ownership from pre-charge to conclusion, and in respect of police charge cases, from initial review to conclusion. The results of that analysis are as follows:

Venue	Retained by Allocated Prosecutor	Not Retained by Allocated Prosecutor
Crown Court	66%	33%
Magistrates’ Court	71%	28%
RASSO	76%	24%

There are a number of reasons why cases cannot always be retained by the same prosecutor, such as:

Prosecutors leaving the service;
Prosecutors moving in to different roles;
Management of absences such as sickness, training, annual leave etc.

Engagement with defence

We recognise the importance of early and positive engagement with the defence and have been actively involving defence colleagues in ensuring our responses on disclosure are addressing the real issues.

Following the seminar chaired by myself in January 2018, the National Disclosure Forum was established to provide both a way of engaging with stakeholders on the specific actions being taken under the National Disclosure Improvement Plan, and to discuss wider issues with disclosure and ideas for solutions. The Forum has met every 6 weeks and the 27 attendees on the last occasion included defence solicitors, members of the independent Bar, district judges and representatives from other investigatory bodies such as the National Crime Agency and HMRC.

Defence representatives have been consulted through the Forum on the working drafts of documents such as the Disclosure Management Document (DMD), the Third party Material Protocol and the National Standards for Disclosure. Amendments have been made in response to the feedback they have provided. For example, within the DMD and the new insert into the MG3, we have included a requirement that the enquiries followed as a result of the account given by the suspect in interview are set out in terms. We have also invited representatives of the Forum to review our training materials as they were being developed.

In relation to engagement in particular cases details of engagement prior to the first hearing should be included in the defence engagement log which is uploaded to the Digital Case System at the same time as the Pre-Trial Preparation Hearing form. Judges are therefore able to monitor compliance with the duty of direct engagement and raise this is in the event of non -compliance.

Early engagement between police and CPS, including pilots

One of the issues raised at the disclosure seminar was the benefits of early engagement between all parties to a case. We are piloting the use of a Disclosure Management Document (DMD). This pilot ran across our RASSO Units and Complex Casework Units from the 26 March for a period of three months, and it still continues.

As a part of this pilot the police are required to set out what has been considered a reasonable line of enquiry in the circumstances of the case. This is done through the insert into the MG3, which is the form that the police use when they set out the details of the case in a request for charging advice. The prosecutor can then make an informed assessment of whether there are reasonable lines of enquiry that remain outstanding and the impact that this has on whether the case meets the Full Code Test.

The prosecutor will set out what reasonable lines of enquiry have been followed in the DMD so that the defence and the court have this information in advance of the Pre-Trial Preparation Hearing (PTPH).

We have established an evaluation group to consider feedback from all stakeholders including the judiciary, and early responses to the DMD have been very positive. However, because of the timing of the pilot period, a relatively small sample of cases have so far had the opportunity for defence engagement. We will continue to use the DMD across Rape and Serious Sexual Offences Unit (RASSO) and Complex Casework Unit (CCU) cases whilst we evaluate the pilots, and await the outcome of the Attorney General’s review of disclosure before rolling them out to other offence types.

The principles of common law disclosure are long-established and set out in R v DPP ex parte Lee [1999] 2 All ER 737. There, the Divisional Court held that there is an obligation on the Crown after charge for any material to be immediately disclosed if, in the particular circumstances of the case, it is in the interests of justice and fairness to do so for example if a key prosecution witness has relevant previous convictions, there is material to help an application for bail or to stay proceedings or there is material to help the defendant prepare for trial.

The use of Disclosure Management Documents (DMDs) goes significantly further than the common law obligation and is designed to facilitate a far more all-embracing approach to disclosure at the very outset of the case, as well as demonstrating transparency regarding how the prosecution plans to discharge its obligations. Disclosure issues should be addressed pre-charge and disclosure is approached by both investigator and prosecutor through the exercise of judgment (the “thinking approach”). The DMD sets out the parameters of the unused material which the prosecution considers relevant by identifying what has been considered to be a reasonable line of enquiry in the case. It also sets out the manner in which that material is being reviewed and highlights specific areas of disclosure where the process is ongoing and not yet complete. The DMD facilitates early engagement of defence into the disclosure process by enabling them to make any representations on the contents of the DMD and identify issues in the case. Crucially, the DMD will bring forward essential consideration of possible disclosure challenges and will initiate a more constructive and timely dialogue on the matter with defence representatives.

Technology working group

You heard from Chief Constable Ephgrave about the National Disclosure Improvement Plan technology working group, and have asked me for further detail.

Membership of the Technology Working Group is as follows:

• Chair: Mark Gray, Director of Digital Transformation, CPS

• Head of Major CJS Projects, CPS

• Strategic Policy Adviser, CPS

• Digital Operations Manager, CPS

• Programme Lead, Digital First & Digital Evidence Transfer Service, NPCC Digital Policing

• Programme Lead, Digital Intelligence & Investigation, NPCC Digital Policing

• Director of Technology and Digital Transformation, Northamptonshire PCC

• HOLMES Lead, West Midlands Police

• Detective Sergeant, Surrey Police

• Acting Head, Police Integrity Unit, Home Office

• Head of Law Enforcement Transformation Unit, Home Office

• Law Enforcement Transformation Unit Manager, Home Office

• Senior Lawyer and Head of Disclosure Review, Attorney General’s Office

• Head of Crime, Digital Change Directorate, HMCTS

As of 21 June 2018, the group will have met on five occasions, and Terms of Reference are at Annex A.

In summary, the group has so far:

• Articulated the specific problem statements (for both police and CPS) and hence the resultant user requirements for any technical solutions, i.e. moving away from the generic “technology to help disclosure” and into specific areas of focus;

• Reached out across government, industry and academia to identify and engage with the right potential partners to work with to address these requirements;

• Reviewed a wide range of “off the shelf” products, including those used in other jurisdictions and in parts of the criminal justice landscape, to identify potential tools that may be most suitable for assisting with the disclosure challenges;

• Identified two specific tools that appear to be “best in class” – one in the search and analysis of mobile phone downloads, and one in identifying the relevance of material (i.e. true “artificial intelligence”);

• Commenced planning for targeted pilots of these two tools with agreed police forces (one in the East Midlands and one in Surrey). Both these pilots will commence later in 2018;

• Overseen successful delivery of the three other specific technology-related activities mentioned in the NDIP (modernised interface for CPS case management system completed; business case and design for police DETS completed; provision of multimedia evidence by direct link on schedule to complete in July 2018).

Training

The training to which I referred is the ‘Proactive Disclosure’ training which takes the form of a one-day, interactive seminar. Prior to undertaking this, all delegates must first complete the CPS’ Foundation Disclosure e-learning course.

The overall aim of this further training is to ensure that lawyers fully understand what is expected of them in relation to the disclosure of unused material at each stage of a case. At the end of the day, all delegates will be able to:

• proactively deal with disclosure at the earliest appropriate opportunity;

• adopt a ‘proactive thinking’ approach to disclosure throughout the life of the case;

• provide appropriate advice on disclosure to the police throughout the life of the case;

• ensure full and detailed audit trails for relevant disclosure decisions, advice and events.

The training covers context setting, disclosure standards and protocols, the National Disclosure Improvement Plan, and two case studies – one in a magistrates’ court and the other in a Crown Court. It also covers issues that are increasingly pertinent, namely the consideration of digital material and what constitutes a reasonable line of enquiry.

The day is opened and closed by the Area Chief Crown Prosecutor (or in some cases, the Deputy) which demonstrates senior commitment to supporting every lawyer to fully understand and manage disclosure.

The Proactive Disclosure pilot was held on 21 May 2018 and was attended by 16 delegates, including 7 Deputy Chief Crown Prosecutors and a representative from the National Crime Agency. Minor amendments were made to the course material following the pilot and the final version was disseminated to CPS Areas on 4 June, with the bulk of the training scheduled to run from July onwards. By the end of September 2018, the Proactive Disclosure training will be complete, having been undertaken by approximately 2000 lawyers in local CPS Areas, CPS Direct, Proceeds of Crime and in HQ Operations.

We are carefully considering how to monitor the efficacy of this training and as such, a strategy for evaluating the training is currently in development.

Complex cases

Our Complex Casework Units (CCU) and Central Casework Divisions deal with cases which will include organised or international crime, terrorism, substantial and complex fraud cases, large-scale drug or human trafficking and large scale child abuse, abduction or paedophile abuse cases involving allegations of the abuse of several victims. Full details of the referral criteria can be found on the CPS website at https://www.cps.gov.uk/legal-guidance/referral-cases-cps-headquarters-private-office-operations-directorate-and-press.

We also have a system of referral whereby complex and sensitive cases are captured on the Sensitive Case List and carefully monitored through the use of Director Case Management Panels (DCMP) and Local Case Management Panels (LCMP). At the LCMPs, Heads of Divisions or Areas meet with reviewing lawyers to discuss the ongoing management of cases (including prosecution case strategies, disclosure and witness issues) to provide a senior level of oversight to these cases. This is an integral part of the CPS casework assurance process. In addition, I routinely examine and scrutinise the highest profile and most significant casework in the Service myself when cases of particular sensitivity or complexity are referred to the Director’s Case Management Panel for consideration by me and other senior lawyers in the CPS.

Crown Court cases (except terrorism, which has its own regime) will be managed according to the principles of Better Case Management. The prosecutor should complete the Pre-Trial Preparation Hearing (PTPH) form outlining the proposed timetable and serve it on the court and the defence. In all Rape and Serious Sexual Offences Unit (RASSO) and CCU cases, the Disclosure Management Document (DMD) should be served on the court and the defence in advance of the PTPH, even if initial disclosure has not yet been made. In serious and complex cases a detailed summary, outlining the key allegations and issues, should accompany the PTPH form. The case will be listed in the normal way at around 28 days, but there is an understanding that the court may need to set a timetable rather than proceed to a full PTPH.

Recording of the Liam Allan case

Under our current coding system, code E44 requires the failure to comply with disclosure obligations to have been the primary reason for the case being stopped. Where they occur, disclosure failures are not always the determinative reason for the stopping of a case. Where material emerges later and leads to a case being stopped, then the impact of that material may be identified in our records as the reason for that stoppage, rather than the late emergence itself. For example, the material could conflict with existing prosecution evidence, bring into doubt the credibility of the complainant or a key witness, or lead to a complainant withdrawing their support for the prosecution.

The outcome of the Liam Allan case is recorded as code E44, a failure to comply with disclosure obligations being the primary reason for the case being stopped.

As I indicted, we recognise that code E44 is too narrow and we need to make changes in the process of our data collection to ensure that we are capturing all cases in which disclosure is an issue at all stages in the life of a prosecution.

We have already begun work on a comprehensive range of performance measures that are both qualitative and quantitative, beginning at the pre-charge stage and continuing throughout the prosecution process up to and including the trial, as well as making changes to the recording of case outcomes. We are involving the Attorney General’s Office and HMCPS Inspectorate in this work and although some of these measures require significant changes to our case management system, and are therefore longer term, we anticipate that case outcome measures which will include disclosure failures will be in place by the Autumn.

Disciplinary processes

You asked me to provide the volume and outcome of disciplinary proceedings, formal or otherwise, relating wholly or partly to a disclosure failing which have occurred during my term of office.

Only formal disciplinary records where misconduct is found are held centrally and whilst I can provide you details on these, records that relate to informal disciplinary action (i.e. verbal warnings, words of advice, additional training and development and constructive discussions as to future conduct standards) are not collated and are therefore not available to the Committee.

During my period of office there have been 10 cases where formal disciplinary proceedings were concluded against prosecutors for issues relating to disclosure failings. The majority of these related to the inappropriate disclosure of sensitive material, with 1 case relating to a direct failure to disclose relevant and appropriate material.

These numbers must, however, be viewed in context. The CPS operates a robust performance management system that is underpinned by Cabinet Office principles that focus on improving capability and performance. Part of this system includes the Individual Quality Assessment (IQA) process, through which managers regularly assess the handling of cases by prosecutors and immediately address any concerns arising, without need to refer to formal processes. IQAs are a structured part of a lawyer’s development, as are regular meetings with line managers. This means that where an individual has made a good faith professional error then a timely intervention can be made so that skills, practice or knowledge issues can be quickly addressed via informal performance measures. This enables a far more constructive, effective and progressive set of outcomes that improve overall CPS capability, and ensures that staff can have confidence in the organisation and retain their motivation to carry out their duties to the best of their ability under frequently difficult circumstances.

In line with this approach most performance matters are resolved through our informal processes without unnecessary recourse to formal disciplinary action or performance improvement action, which can also ultimately lead to dismissal.

With regard to formal performance improvement procedures, we do not hold central records for such activity and therefore I am unable to provide you with the specific information you have requested.

Please let me or my officials know if you require any further information or clarification regarding the information contained within this letter.

June 2018

Annex A – National Disclosure Improvement Plan Technology Group terms of reference

NATIONAL DISCLOSURE IMPROVEMENT PLAN

Technology Group

Terms of Reference

Purpose

To complete the actions within the Joint National Disclosure Improvement Plan, and implement the recommendations in the HMCPSI/HMICFRS and Mouncher Investigation reports assigned to the Technology Group.

Background

The joint National Disclosure Improvement Plan (NDIP) sets out the further work needed to address the recommendations in the HMCPSI/HMICFRS and Mouncher Investigation reports, and to identify and prepare for any further challenges.

A Joint National Disclosure Delivery Board will be co-chaired by the Director of Public Prosecutions and the NPCC Lead, Chief Constable Nick Ephgrave. This Board will provide the leadership and oversight of the Joint National Disclosure Improvement Plan, and check and challenge the work of the Technology Group.

CPS, Police and joint thematic working groups will be set up to focus on specific aspects of the Joint National Disclosure Improvement Plan. These working groups will also focus on maximising the use of technology.

The Technology Group is a joint working group which will report to the Joint National Disclosure Working Group, co-chaired by the Director of Legal Services and ACC Prior.

Remit

Assign actions required to deliver against each of the working group recommendations in the HMCPSI/HMICFRS and Mouncher Investigation reports
Review progress against all actions, and take remedial action where appropriate to ensure completion.
To ensure dependencies and impact on other working groups are properly identified, considered and communicated.
Report progress against actions to the Joint National Disclosure Working Group, and manage risks and issues
Consider feedback and resolve issues raised by the Joint National Disclosure Working Group and the Joint National Disclosure Delivery Board.
Identify any further work that needs to be completed to address their assigned recommendations.

Relationship with other groups

Meetings

Frequency: - the Technology Group will meet monthly.

Agenda: - a formal agenda will be produced by Operations Directorate. Updates will be required from each action assignee as to progress.

Secretariat: - to be provided by Digital Technology Services.

Supporting papers: - any supporting papers to be considered by the group must be circulated at least 3 working days prior to the meeting.

Membership

Membership of the group comprises: -