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Extensive changes must be made before the process for disclosing unused material in criminal cases becomes fit for purpose once again. The present analogue approach towards disclosure needs to be revamped for a digital age.
Although the regime set out in Part I of the Criminal Procedure and Investigations Act 1996 (CPIA) provides a sound statutory framework for disclosure, there are multiple problems. The devil lies in the detail of the regime’s implementation.
The proliferation of digital material and the progressively complex nature of offending in both Magistrates’ Court and Crown Court cases means that disclosure is an increasingly time-consuming and resource-intensive process for investigating and prosecuting parties which has the impact of slowing down case progression. This is acutely felt in the prosecution of ‘disclosure-heavy’ cases such as fraud, organised crime, rape, and serious sexual offences where digital material is frequently found. If the current disclosure regime is not adapted to meet the rising tide of digital material, the prosecuting authorities will be swamped by the magnitude of the material and the ability to investigate and prosecute these cases will be severely hindered.
Cases involving a high volume of digital material present the greatest difficulty, as investigating authorities struggle to discharge burdens associated with manual review and the logging of copious amounts of digital material on a schedule. There is inadequate provision in the CPIA Code of Practice for use of electronic tools such as search engines and artificial intelligence programmes in implementation of the disclosure process, and there is insufficient early engagement on disclosure issues between the defence, the prosecution, and the court.
The current requirement for police officers to redact material passed by the police to the Crown Prosecuting Service (CPS) at the pre-charge state of an investigation is unduly arduous, especially in cases where the CPS subsequently advises against the initiation of criminal charges and the case falls away or where, charges having been brought, a defendant enters a guilty plea.
In addition, there are wider problems with the application of the disclosure process. The test for disclosure is not always understood by investigating officers with sufficient clarity, and there are some deep-seated cultural issues which need to be tackled. Investigating officers do not always recognise the importance of disclosure, especially in the Magistrates’ Court, and in some of the investigating community there is a poor perception of the role of the disclosure officer.
No silver bullet can be deployed to resolve the problems, but collectively a range of changes will shift the dial. The objective is to render a viable and efficacious regime for the disclosure of unused material in criminal cases which maximises the use of technology in aiding the discharge of a prosecutor’s obligation, while ensuring that a defendant has access to material which undermines the prosecutor’s case or advances the defendant’s case.
In large part, technological developments have precipitated the pressures on the disclosure regime. It is only natural, therefore, that technological developments should provide the solution, with the making of comparatively minor adjustments to the legislation and associated guidelines, and the implementation of appropriate safeguards to protect a defendant from the risk of injustice. Furthermore, as technology develops, the disclosure obligations will become easier to discharge.
Where there is a high volume of digital unused material, the burden of manually reviewing the totality of unused material can be substantially reduced by making much greater use of electronic tools, in this instance by the automated production of schedules showing the metadata for each document which is presented in descriptive form. The CPIA 1996 needs to be updated to allow recognition of metadata schedules as well as the use of search engines and artificial intelligence programmes in the disclosure function. These changes should produce considerable savings for all stakeholders in the trial process.
The production of schedules using metadata should become the default position in high volume cases. While judicial discretion should be retained to order manual review of electronically held material where interests of justice require, the exercise of this discretion should be the exception and not the norm.
Additionally, there needs to be a more defined route for issues involving disclosure to be engaged and resolved at an early opportunity. An ‘Intensive Disclosure Hearing’ should be introduced to facilitate early defence and judicial engagement with the disclosure process, with the prosecution required to produce a fully considered Disclosure Management Document at least seven days prior to the Intensive Disclosure Hearing.
The Criminal Procedure Rules should be revised to impose a legal requirement on a defendant to engage with the prosecution and the court regarding disclosure issues at this hearing. In this way, issues involving disclosure can be raised and duly resolved at an early stage in the journey of the case through the Crown Court while awaiting trial.
In consequence, the number of applications for disclosure of unused material made by defendants under s 8 of the CPIA should reduce. Where an application is made, the Crown Court should exercise its power sparingly, especially where the application is made at a late stage in the proceedings, close to the trial date. The judiciary should be encouraged to require explanations from the prosecution and defence when the approach to disclosure has been deficient and make wasted costs orders where appropriate to do so.
There are some ‘easy hits’ which could be implemented swiftly to reduce the amount of time unnecessarily spent by investigating officers and the prosecution on the disclosure process. A route to enable the return of ‘defendant’s own material’ in a single defendant case should be established by prosecuting authorities as soon as possible. This will relieve the prosecution of the obligation to compile a descriptive schedule of a defendant’s own material, while retaining the prosecution obligation to identify disclosable material identified during the prosecutor’s review. Requiring the prosecution to prepare a schedule of ‘defendant’s own material’ and redacting confidential information relating to third parties is a pointless exercise in a single defendant case, since the material belongs to the defendant in the first place. The same approach cannot be taken in a multi-handed case since there might be material seized in the search of a defendant’s premises which would advance a co-defendant’s case if they had access to it.
Also, the police could be relieved of the obligation of redacting confidential information passed by them to the CPS in advance of a decision to prosecute having been made and producing unused material schedules at the pre-charge stage of a case where a guilty plea is anticipated. Both activities are unnecessary in a case where the CPS subsequently decides not to initiate criminal charges or if instituted, a plea of guilty is forthcoming. To facilitate the easy passage of information between the police and the CPS without the need for the redaction of confidential information, a ‘data bubble’ should be established. The information gateway between the police and the CPS facilitates the interests of justice, and in so far as any changes to data protection legislation are required, the position for unredacted material passing between the police and the CPS is uncontroversial since historically departments of the State have always been regarded as indivisible.
Finally, swift changes could be made to implement improvements to the status and career path of disclosure officers, as well as increased disclosure training for investigating officers.
A small number of stakeholders in the criminal justice community, in particular the defence community, argue that more radical reform is required, and the approach set out in Part 1 of the CPIA should be abandoned in favour of a regime which permits a defendant to have access to all of the unused material generated in a criminal case, regardless of its volume or relevance to disputed issues which will be raised at trial. This approach should be resisted since it would be impractical and costly, theoretically unsound and therefore wrong in principle.
First, the keys to the warehouse approach would significantly increase cost and precipitate delays since the same unused material would need to be reviewed by both the prosecution and (multiple) teams of defence solicitors and counsel. There would be duplication of function, compounded in a multi-defendant trial. The additional costs to the legal aid fund would be significant and could not be justified where there is a viable alternative approach available.
Secondly, few legally aided defence solicitors would be adequately resourced to review such a large volume of unused material. It is not simply the labour and cost involved. There is also the question of having access to the relevant computer systems. If a licensing arrangement could be worked out, additional costs would still be involved.
And there would be difficulties for non-represented defendants as well.
Thirdly, an enormous amount of work would need to be undertaken on the unused material by the prosecution regarding redaction of confidential data before the unused material could be handed to the defence. Bearing in mind there is much unused material in which the defence is not likely to be interested, considerable waste of resources in redacting the material would be incurred.
Finally, the keys to the warehouse approach is inconsistent with the prosecution obligation to ensure a fair trial. As is said in court, the State brings the case, and it is incumbent on the State to prove it. Also, it is equally incumbent on the State to guarantee an accused a fair trial, which includes an obligation to disclose unused material which undermines the prosecution case or advances the defence case. The requirement is recognised in Article 6 of the European Convention on Human Rights and a string of criminal appeal cases decided in the Strand.
Accordingly, no changes are recommended to the definition of unused material or the disclosure test since both the definition of unused material and the disclosure test are well established. Making changes would cause confusion, and the generally held view by investigators, prosecutors, defence practitioners and the judiciary alike is that both the definition of unused material and the disclosure test works well and is fair. Rather, it is modernisation in the implementation of the regime which is urgently required. To this end, the recommendations in my Independent Review will have a significant impact on the way in which disclosure of unused material is delivered in the digital age, while leaving the underlying ecology of the criminal justice system undisturbed.
Jonathan Fisher KC practises at Red Lion Chambers London. Additionally, he is a Senior Fellow (and Visiting Professor in Practice) at LSE. In October 2023, the Home Office appointed Jonathan to act as Independent Reviewer in Disclosure and Fraud Offences. This is a part-time role which Jonathan principally conducts from chambers.
Extensive changes must be made before the process for disclosing unused material in criminal cases becomes fit for purpose once again. The present analogue approach towards disclosure needs to be revamped for a digital age.
Although the regime set out in Part I of the Criminal Procedure and Investigations Act 1996 (CPIA) provides a sound statutory framework for disclosure, there are multiple problems. The devil lies in the detail of the regime’s implementation.
The proliferation of digital material and the progressively complex nature of offending in both Magistrates’ Court and Crown Court cases means that disclosure is an increasingly time-consuming and resource-intensive process for investigating and prosecuting parties which has the impact of slowing down case progression. This is acutely felt in the prosecution of ‘disclosure-heavy’ cases such as fraud, organised crime, rape, and serious sexual offences where digital material is frequently found. If the current disclosure regime is not adapted to meet the rising tide of digital material, the prosecuting authorities will be swamped by the magnitude of the material and the ability to investigate and prosecute these cases will be severely hindered.
Cases involving a high volume of digital material present the greatest difficulty, as investigating authorities struggle to discharge burdens associated with manual review and the logging of copious amounts of digital material on a schedule. There is inadequate provision in the CPIA Code of Practice for use of electronic tools such as search engines and artificial intelligence programmes in implementation of the disclosure process, and there is insufficient early engagement on disclosure issues between the defence, the prosecution, and the court.
The current requirement for police officers to redact material passed by the police to the Crown Prosecuting Service (CPS) at the pre-charge state of an investigation is unduly arduous, especially in cases where the CPS subsequently advises against the initiation of criminal charges and the case falls away or where, charges having been brought, a defendant enters a guilty plea.
In addition, there are wider problems with the application of the disclosure process. The test for disclosure is not always understood by investigating officers with sufficient clarity, and there are some deep-seated cultural issues which need to be tackled. Investigating officers do not always recognise the importance of disclosure, especially in the Magistrates’ Court, and in some of the investigating community there is a poor perception of the role of the disclosure officer.
No silver bullet can be deployed to resolve the problems, but collectively a range of changes will shift the dial. The objective is to render a viable and efficacious regime for the disclosure of unused material in criminal cases which maximises the use of technology in aiding the discharge of a prosecutor’s obligation, while ensuring that a defendant has access to material which undermines the prosecutor’s case or advances the defendant’s case.
In large part, technological developments have precipitated the pressures on the disclosure regime. It is only natural, therefore, that technological developments should provide the solution, with the making of comparatively minor adjustments to the legislation and associated guidelines, and the implementation of appropriate safeguards to protect a defendant from the risk of injustice. Furthermore, as technology develops, the disclosure obligations will become easier to discharge.
Where there is a high volume of digital unused material, the burden of manually reviewing the totality of unused material can be substantially reduced by making much greater use of electronic tools, in this instance by the automated production of schedules showing the metadata for each document which is presented in descriptive form. The CPIA 1996 needs to be updated to allow recognition of metadata schedules as well as the use of search engines and artificial intelligence programmes in the disclosure function. These changes should produce considerable savings for all stakeholders in the trial process.
The production of schedules using metadata should become the default position in high volume cases. While judicial discretion should be retained to order manual review of electronically held material where interests of justice require, the exercise of this discretion should be the exception and not the norm.
Additionally, there needs to be a more defined route for issues involving disclosure to be engaged and resolved at an early opportunity. An ‘Intensive Disclosure Hearing’ should be introduced to facilitate early defence and judicial engagement with the disclosure process, with the prosecution required to produce a fully considered Disclosure Management Document at least seven days prior to the Intensive Disclosure Hearing.
The Criminal Procedure Rules should be revised to impose a legal requirement on a defendant to engage with the prosecution and the court regarding disclosure issues at this hearing. In this way, issues involving disclosure can be raised and duly resolved at an early stage in the journey of the case through the Crown Court while awaiting trial.
In consequence, the number of applications for disclosure of unused material made by defendants under s 8 of the CPIA should reduce. Where an application is made, the Crown Court should exercise its power sparingly, especially where the application is made at a late stage in the proceedings, close to the trial date. The judiciary should be encouraged to require explanations from the prosecution and defence when the approach to disclosure has been deficient and make wasted costs orders where appropriate to do so.
There are some ‘easy hits’ which could be implemented swiftly to reduce the amount of time unnecessarily spent by investigating officers and the prosecution on the disclosure process. A route to enable the return of ‘defendant’s own material’ in a single defendant case should be established by prosecuting authorities as soon as possible. This will relieve the prosecution of the obligation to compile a descriptive schedule of a defendant’s own material, while retaining the prosecution obligation to identify disclosable material identified during the prosecutor’s review. Requiring the prosecution to prepare a schedule of ‘defendant’s own material’ and redacting confidential information relating to third parties is a pointless exercise in a single defendant case, since the material belongs to the defendant in the first place. The same approach cannot be taken in a multi-handed case since there might be material seized in the search of a defendant’s premises which would advance a co-defendant’s case if they had access to it.
Also, the police could be relieved of the obligation of redacting confidential information passed by them to the CPS in advance of a decision to prosecute having been made and producing unused material schedules at the pre-charge stage of a case where a guilty plea is anticipated. Both activities are unnecessary in a case where the CPS subsequently decides not to initiate criminal charges or if instituted, a plea of guilty is forthcoming. To facilitate the easy passage of information between the police and the CPS without the need for the redaction of confidential information, a ‘data bubble’ should be established. The information gateway between the police and the CPS facilitates the interests of justice, and in so far as any changes to data protection legislation are required, the position for unredacted material passing between the police and the CPS is uncontroversial since historically departments of the State have always been regarded as indivisible.
Finally, swift changes could be made to implement improvements to the status and career path of disclosure officers, as well as increased disclosure training for investigating officers.
A small number of stakeholders in the criminal justice community, in particular the defence community, argue that more radical reform is required, and the approach set out in Part 1 of the CPIA should be abandoned in favour of a regime which permits a defendant to have access to all of the unused material generated in a criminal case, regardless of its volume or relevance to disputed issues which will be raised at trial. This approach should be resisted since it would be impractical and costly, theoretically unsound and therefore wrong in principle.
First, the keys to the warehouse approach would significantly increase cost and precipitate delays since the same unused material would need to be reviewed by both the prosecution and (multiple) teams of defence solicitors and counsel. There would be duplication of function, compounded in a multi-defendant trial. The additional costs to the legal aid fund would be significant and could not be justified where there is a viable alternative approach available.
Secondly, few legally aided defence solicitors would be adequately resourced to review such a large volume of unused material. It is not simply the labour and cost involved. There is also the question of having access to the relevant computer systems. If a licensing arrangement could be worked out, additional costs would still be involved.
And there would be difficulties for non-represented defendants as well.
Thirdly, an enormous amount of work would need to be undertaken on the unused material by the prosecution regarding redaction of confidential data before the unused material could be handed to the defence. Bearing in mind there is much unused material in which the defence is not likely to be interested, considerable waste of resources in redacting the material would be incurred.
Finally, the keys to the warehouse approach is inconsistent with the prosecution obligation to ensure a fair trial. As is said in court, the State brings the case, and it is incumbent on the State to prove it. Also, it is equally incumbent on the State to guarantee an accused a fair trial, which includes an obligation to disclose unused material which undermines the prosecution case or advances the defence case. The requirement is recognised in Article 6 of the European Convention on Human Rights and a string of criminal appeal cases decided in the Strand.
Accordingly, no changes are recommended to the definition of unused material or the disclosure test since both the definition of unused material and the disclosure test are well established. Making changes would cause confusion, and the generally held view by investigators, prosecutors, defence practitioners and the judiciary alike is that both the definition of unused material and the disclosure test works well and is fair. Rather, it is modernisation in the implementation of the regime which is urgently required. To this end, the recommendations in my Independent Review will have a significant impact on the way in which disclosure of unused material is delivered in the digital age, while leaving the underlying ecology of the criminal justice system undisturbed.
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