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Mr Jonathan Fisher KC’s ongoing Independent Review of Disclosure & Fraud Offences recently published its “Preliminary Findings & Direction of Travel” report for part one of the review, which relates to the criminal disclosure regime. The report can be found here.
The report rightly highlights the challenges that the exponential growth in digital evidence poses for the disclosure regime, particularly in the context of serious fraud and sexual offences prosecutions. Other emerging themes that the report highlights will be explored further by the review are: the fitness for purpose of the current legislative framework contained in the Criminal Prosecutions & Investigations Act 1996 (‘CPIA’) and guidance documents; the merits of a “keys to the warehouse” approach to disclosure; consistency of decision-making surrounding the application of the CPIA 1996 tests; the use of AI solutions to manage disclosure; the possibilities for early engagement between the prosecution and defence in order to resolve disclosure issues; and the fact that the CPIA is often not complied with in Magistrates’ Court cases.
The review’s ongoing focus on these themes is apposite and to be welcomed. More apposite and welcome still is Mr Fisher KC’s conclusion that “all my engagement has pointed to a need for better training and resources for disclosure issues across all parts of the criminal justice system…Many of those with whom I have spoken have referred to a poor culture around disclosure and the insufficient value placed upon its work in different parts of the system. I intend to explore this matter in further detail, with particular attention to the training of investigating officers as well as lay magistrates’ who are required to deal with disclosure issues on a regular basis. The importance of disclosure must be embedded as an inextricable part of the criminal trial process.”
These comments highlight a stark truth that has been evident to defence lawyers for quite some time – that the police and CPS lawyers often do not approach the task of disclosure with the diligence and rigour it deserves. The defence are at an inherent disadvantage to the prosecution in that law enforcement bodies have the power and authority to obtain evidence in a way that the defence simply do not possess. The fairness of criminal trials depends upon all reasonable lines of enquiry that point towards and away from a defendant being pursued, with the police often tending – either due to lack of training or inherent bias - to pursue the former and not the latter (unless compelled to do so by court order, the process of obtaining which can itself be very laborious).
Given these inherent shortcomings, it is vitally important for defence lawyers to make clear what lines of enquiry are in their clients’ interests to be pursued from an early stage in the case to ensure that the best possible outcomes can be achieved. This is especially so in cases involving allegations of serious sexual offences, where digital evidence from electronic devices and social media, as well as “third party” material such as medical and social services records can contain relevant evidence.
If you or someone you know is facing such an allegation, call +44 (0)20 7814 1200 today to speak to our team of experienced lawyers.
About the author
Edward Jones has practised exclusively in the field of criminal law for over 15 years and brings a wealth of knowledge and experience to his role. He has acted for clients accused of the most serious offences such as murder, manslaughter and rape and always approaches all his cases in a calm, methodical and meticulous manner in order to achieve the best possible outcome for his clients.
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