THE CPIA DISCLOSURE REGIME; PII AND THIRD PARTY DISCLOSURE, THE DEFENCE PERSPECTIVE
I have been asked to provide a "defence perspective" regarding the statutory disclosure regime created by the CPIA. As a practising solicitor specialising in criminal defence work and also as a part-academic, having written both a book and many articles concerned with disclosure, I hope to have something useful to contribute.
The disclosure regime implemented pursuant to the CPIA and its attendant Code of Practice represents a rupture rather than an evolution of the law concerning the prosecutionís duty of disclosure to the defence. Until the advent of the Act, the law was exclusively Judge-made. From when, approximately half a century ago, the prosecution appeared to have no duty of disclosure at all, the common law came to gradually impose ever greater duties of disclosure recognising at each step, the potential for injustice if disclosure was not made. In 1976 an official report arising out of non-disclosure in the Maxwell Confait affair observed that "Until 30 years ago, no authority existed for the proposition that there was any duty [of disclosure] at all" (Paragraph 5.1).
By the mid-1990ís concern concerning the criminal justice system was mounting in official circles. Disquiet concerning prosecution non-disclosure demonstrated in notorious miscarriage of justice cases was supplanted in favour of that concerning alleged abuse by the defence of its right to disclosure. Anecdotal stories concerning unreasonable and burdensome defence demands for disclosure became prominent. Something had to be done. The result was a Home Office Consultation Paper issued in 1995 concerning reform of the law on disclosure. This paper was entirely one-sided representing only the views of law enforcement. It was obvious that the then government had resolved that statutory intervention was necessary. Thus the CPIA was born, an avowed attempt to reverse the balance of power in the criminal justice system in the area of disclosure away from the defence and in favour of the prosecution.
The CPIA is not the first attempt by government to attempt to halt the development of the common law concerning disclosure. In 1981 the Attorney-Generalís Guidelines were promulgated which in part were a determined attempt to ensure that decisions concerning "sensitive" or public interest immunity material were made by prosecutors and not by judges. The courts however did not accept the imposition of such a brake upon their initiative and by the early 1990ís the Guidelines were virtually otiose, the common law having overtaken them.
THE FUTURE OF THE CPIA
It would be foolish to presume that at present there is any political will in favour of either abolition or emasculation of the CPIA with a return to the previous common law regime. Statutory reform is not on the agenda and probably will not be so unless and until post-CPIA miscarriage of justice cases come to light.
Accordingly what is needed now in the light of 2Ĺ years experience are practical and feasible suggestions for improvement. What in other words can be done within the existing framework to ameliorate some of the difficulties to best ensure that any defendant receives a fair trial. As this article is intended to show, this is a challenge not simply to be met by prosecutors and investigators, but also by defence lawyers who must ensure that traditional strategies summed up in adages like "keep the powder dry" are replaced by a more pre-trial pro-active approach. The concept devised by Roger Ede and Eric Shepherd of "active defence"
In considering what improvements would be beneficial one can consider first the Code of Practice which essentially governs the relationship between the investigator and the prosecutor. Second to then consider the current law on disclosure proper. It shall be assumed that the reader is already familiar with the mechanics of the CPIA regime.
REVELATION; THE CODE OF PRACTICE
The provisions of the Code of Practice are largely unobjectionable. The imposition for example upon the investigator of an explicit duty to investigate all reasonable lines of inquiry whether these tend to support or weaken a prosecution case-theory is welcome (paragraph 3.4).
The effectiveness of the Code depends almost entirely upon the integrity, ability and conscientiousness of a particular investigator, termed a "Disclosure Officer". In anything but the most simple of cases, the Code casts upon this officer a series of onerous and time-consuming tasks. Paragraph 6 for instance demands that the officer gather together, identify and schedule all unused material falling within the very wide definition of relevance contained in paragraph 2.1.
The task of scheduling the unused material in any complex inquiry if done in conformity to the strictures of the Code, is likely to be burdensome. Whereas under the old common law system a skeletal schedule could be prepared, containing descriptions of items like "bundle of miscellaneous correspondence" or "material from Official Receiver" such outline descriptions will no longer suffice. Now each item must be listed individually and with sufficient particularity so that when subsequently the schedule comes to be perused by a prosecuting lawyer, that lawyer can make decisions concerning the disclosability of a particular item simply on the basis of its description in the schedule and nothing else (paragraph 6.9). Papers from the Official Receiver for example must therefore be individually itemised probably with a summary of each itemís content. Otherwise how will the prosecuting lawyer be able to come to an informed and intellectually defensible decision on disclosure?
From a defence perspective such provisions contain the seeds of the following problems:-
Perhaps one is being unduly cynical, but to expect so much from an investigator raises cause for concern. Moreover from a police management perspective, one can fairly ask whether there are within existing budgets, sufficient resources to ensure that this additional job is done properly. At a time when politicians still remain wedded to the outdated concept of bobbies on the beat, the provisions of the Code in relation to added paperwork and police station duties, must be seen as unwelcome.
The tripartite disclosure regime, Primary Disclosure, Defence Disclosure and Secondary Disclosure is now familiar. Primary and Secondary disclosure are concerned with two wholly different tests of disclosability. Primary Disclosure is a subjective test, what an individual prosecution lawyer considers is material which might undermine the prosecution case. Secondary disclosure is an objective test, what might reasonably assist the defence case as disclosed by its statement.
In determining the disclosability of particular items at either the primary or secondary stages, the prosecutor can base his/her decisions wholly upon the description of the particular item in the unused schedule as prepared by the Disclosure Officer. There is a power but no duty to examine the material itself (paragraph 7.4). Bearing in mind that most prosecutors are already hard-pressed, it is surely likely that such a lawyer will restrict their task to a perusal of the schedule. The wording of the Act/Code coupled with the realities of working in a prosecutorís office means that it is highly unlikely that any lawyer will conduct a full review of unused material at any stage. Accordingly if the schedule is either incomplete or inadequate the prosecution lawyerís decisions may be erroneous. For example if the schedule refers to a crime or "CRIS" report and provides no further detail as to its content, it seems that the lawyer can then safely assume it is not disclosable. He/she is allowed to presume that if there was anything important and disclosable, the Disclosure Officer would have drawn it to their attention. Unless the defence can somehow fortuitously intervene and explain why the report may be important, a difficult task in most cases because it has not been disclosed, that report may then never be disclosed. A worrying state of affairs.
Primary Prosecution Disclosure
The test of disclosability referred to above is not simply subjective it is also highly ambiguous Ė what really does "might undermine" mean? Does for example the test include an obligation to take into account what the defendant has said about his defence in interview? Does the test include material which may positively assist a defence case alone, e.g. a prosecution witness seeking a reward? When does the obligation to disclose names and addresses of unused witnesses arise? Many of these highly practical, almost everyday questions could be resolved by national guidance issued to individual prosecutors by their respective agency. Surely seeking to ensure greater consistency here is a proper and important goal and is also in the interests of justice. Hitherto however such guidance is notably absent.
On present arrangements one thing seems clear when construing this test as regards a particular item of unused material, reasonable and rational prosecutors can come to wildly conflicting decisions. By imposing a subjective test, the Act favours inconsistent and non-reviewable decision making. From a defence perspective, this begins to look like a lottery, it all depends whether you get a generous or a mean prosecutor.
Ironically the principal reason behind the introduction of the Attorney-Generals Guidelines in 1981 was to seek to eliminate inconsistencies between different prosecuting solicitors departments concerning disclosure. In its report, the Royal Commission on Criminal Procedure (the Phillips Committee) had discovered what it regarded as worrying inconsistencies. The Guidelines were an attempt to impose consistency and objectivity. This approach has seemingly been discarded by the CPIA test of primary disclosure.
In keeping with many prosecutors, I am albeit for different reasons, also disappointed that defence lawyers are generally opting for a strategy of minimalist disclosure when it comes to the content of the defence statement. My point is simply this; bearing in mind that ambush defences are extremely rare and that in the vast majority of cases, the defence is easy to predict, the defence has far more to lose than to gain by being secretive. Secondary prosecution disclosure is a wholly reactive duty dependant upon the content of the defence statement. Accordingly favouring the tactic of "keeping the powder dry" over "flushing the prosecution out" means that little will be disclosed by means of secondary disclosure.
This disadvantageous situation is accentuated by the fact that because the defence have sight of the non-sensitive schedule, they can
tell what items to seek disclosure of, items not already disclosed.
The drawback of serving a minimalist defence statement is therefore minimalist secondary disclosure in return. In this context the CPIA seeks to use a carrot rather than a stick. The extent of defence disclosure via its statement as required by Section 5(6) is not substantial and the circumstances by which an adverse inference can be drawn pursuant to Section 11 are narrowly confined. In most cases therefore the disadvantage of minimalist defence disclosure is loss of opportunity, loss of full secondary disclosure.
Consistent with the spirit of the Act, one might imagine that conditions would be created whereby maximalist defence disclosure would be facilitated. Unfortunately such conditions are largely absent. Legitimate defence concerns regarding for example what use the prosecution can make of a defence statement are ignored and not addressed. If the Act genuinely wanted the prosecution and defence to make pre-trial disclosure with all the purported benefits which are said to flow from this, then it is an irony that it fails to address reasonable and foreseeable concerns. To this end, complaints by prosecutors concerning poor defence compliance with this provision of the Act are misdirected, the statutory scheme itself bears the greatest responsibility.
Particular attention can be drawn to two specific discouragements to the defence to put in a "full" defence statement:-
CPS Policy; Prohibition On Use of a Defence Statement
For its part, in a laudable attempt to overcome this problem created by the Act and to encourage defence disclosure, the CPS has issued policy guidance to the effect that the defence statement should not be used as a means of strengthening a case for the Crown against an accused. Interestingly, no other prosecutorial body has made a similar self-denying ordinance.
In relation to this CPS policy the first point to make is that it does not seem to have been adequately disseminated. Certainly many instances have been reported to me of prosecution counsel in ignorance of it, seeking to rely upon a defence statement. Perhaps as on a practical note therefore maybe the policy requires further amplification.
Secondly and more fundamentally, is this policy workable in practice? The difficulty with it is that it goes against the grain what investigators have always been trained to do; take advantage of anything said or done by the defendant which may properly strengthen the case against him/her. Bearing in mind that the adversarial system of trial still predominates, one can hardly blame an investigator for this attitude. Moreover an investigator may perfectly reasonably seek the response of prosecution witnesses to averrments made in the defence statement. This may in part be to ascertain whether the case for the prosecution is as strong as previously believed. What happens when fortuitously such a witness provides new evidence by way of response which strengthens the prosecution case? As a result of the policy is such evidence to be ignored? Is an investigator to be prevented from reinterviewing witnesses for fear that complaint will later be made that such action was a violation of CPS policy? One can foresee difficulties and misunderstandings arising between investigators and the CPS concerning what further steps should be undertaken in the light of the content of a defence statement.
Whilst I am loathe to criticise a policy motivated to firstly assist the interests of the defence and secondly to make the criminal justice system work better, I nonetheless believe that this policy is in danger of being unworkable in practice. Despite the best intentions of the CPS, it will fail to deliver a real assurance to the defence that investigators will not seek to take advantage of a defence statement. At the same time to investigators and prosecutors alike such an initiative will seem an unnecessary and nonsensical concession.
An entirely reactive duty dependant upon the content of the defence statement. A diligent investigator should dread the prospect in a complex case of a "full" defence statement being served. If this event occurs, the Disclosure Officer is then obliged pursuant to the Code (paragraph 8.2) to completely reassess all the unused material in the case and consider what might now need to be disclosed. Imagine the situation; a defence statement served many months after the prosecutionís case was initiated when the investigator has become involved in many other unconnected cases since. He/she is then obliged to return to all the unused material and resift it for the purpose of in turn advising the prosecutor what has now become disclosable. Another onerous task, but this time imposed when it is likely the investigator will be involved in other cases whose priorities may be more pressing or attractive. Again the prosecution lawyer has no duty to sift the material and/or take possession of it but may rely upon the views of the investigator upon whom again the responsibility of getting it right is placed. Essentially therefore it is the investigator who will decide what material may assist the (disclosed) defence case.
One must surely query how realistic it is for the Code to cast this onerous duty upon an investigator. Is it a duty likely to be more honoured in the breach than in the observance? Moreover is it appropriate that the application of legal tests of disclosability should for the most part be left to an investigator?
It is interesting to note that the Serious Fraud Office have adopted a more pragmatic and it is submitted, wiser, approach. But for any PII material, all unused material is automatically disclosed to the defence post-service of a defence case statement and accordingly no-one at the SFO is obliged to undertake the re-sifting exercise. The task of assessing what therefore may assist the defence case is sensibly given back to the defence.
At the end of the day and usually on the eve of the trial the matter comes before prosecution counsel. Occasionally and thankfully they do seek to examine the unused material to satisfy themselves that errors have not been made. That extra-statutory safeguard is heartening perhaps but it is wrong in principle that the vital task of ensuing proper disclosure should be left to depend upon the last minute diligence and fairness of the prosecution counsel.
PUBLIC INTEREST IMMUNITY
PII looms large in the realm of disclosure. The ability of the prosecution to seek the sanction of a trial judge for non-disclosure of particular relevant and therefore otherwise disclosable items of material in the context of an ex parte or one-sided hearing naturally causes concern. Furthermore, at an ex parte hearing in support of their application for non-disclosure, the prosecution is at liberty to rely upon prejudicial and/or inadmissible material concerning the defendant and his/her alleged associates. Seemingly powerful arguments can be presented concerning the alleged dire consequences that could result from disclosure without there being any opportunity from the defence to rebut these.
Whilst the CPIA does not affect the pre-existing common law concerned with
PII, it simply reducing into rules of court the three different types of ex parte hearing devised by Taylor CJ in R -v-
Against this background, whilst ex parte hearings are perhaps a necessary evil, it is vital that a proper framework is put in place which will enable a trial judge to effectively scrutinise the submissions made in favour of an application for non-disclosure, to adequately peruse ad grasp the potential significance documents placed before him/her and to allow the defence to make as informed representations as possible.
It is submitted that current arrangements are not adequate and there is a substantial risk that they are insufficiently rigorous in order to ensure that the interests of the defendant are given proper weight. I set out below some particular concerns:-
Whilst in theory there is a clear demarcation between contents and class claims with now only the former being permissible, it is submitted that there remains always a tendency by prosecutors in favour of conflating of the two types. Perhaps the cause of this tendency lies with another Act, the Interception of Communications Act 1985 which prohibits the disclosure of any material concerned with telephone intercepts. In other words that Act creates a class immunity for that particular type of material. The justification for this being based upon the absurd premise that somehow organised crime are not aware, but would become so if such material was disclosed, that their telephones are routinely bugged.
In my experience, the temptation to make a class claim disguised as a contents claim relates especially to two kinds of unused material: that relating to informants and that relating to police methods of investigation. In relation to both it appears that it is often submitted by the prosecution in general terms that disclosure would be harmful. Accordingly even if the defence know there was an informant and maybe even know their identity, an ex parte PII claim is still routinely made. In relation to police methods of investigation, this appears to be a favourite chestnut claim put forward to cover a huge array of different police activities from the obvious to the most sophisticated.
It is essential that trial judges are alive to the ever-present danger of slippage or conflation here. That they are not beguiled by a combination of seductive advocacy and expression of genuine but irrational fears so that in a consequence they in effect become mere rubber-stamps for disguised class claims. Moreover that judges evaluate expressed fears concerning the consequences of disclosure in a realistic and detached fashion remembering always that the police are not impartial in the formulation of their concerns. In a case involving undercover officers there will always be a wish to shield from scrutiny all what passed between the officer and the informant and/or defendant. Also it is relatively easy to conjure up the prospect of dire consequences ensuing from disclosure. A rigorous focus upon the specific documents in issue and to the issues in the particular case to be tried is a necessary antidote to such dangers.
The recent Court of Appeal decision in R -v-
With respect to Alliott J it is insufficient to simply to call upon the Crown to be scrupulously accurate. What is required to ensure that this standard is achieved are the provision of rules of procedure which for example insist upon sworn evidence being provided either from the witness box or in the form of an affidavit so that all information relied upon in an ex parte hearing is clear and the maker of it is known. The practice as regards the obtaining of restraint orders whereby the investigating officer must set out his/her full reasons in support of the application in an affidavit should be applied to this area. One cannot have confidence in the fairness of such hearings if it is permissible for prosecution counsel to simply make oral submissions albeit on instructions, to the trial judge.
In a complex case with a mass of documents to be considered it is submitted that the only adequate system to adequately protect the interests of the defence is the appointment of an amicus lawyer acting in the interests of justice whose role would be to assist judicial evaluation of the material. A procedure analogous to that now popular in many public inquiries where a Counsel to the Inquiry is appointed. A role made famous and shown to be highly effective by both Preisley Baxendale QC in the Scott Inquiry and by Edmund Lawson QC in the McPherson Inquiry.
In relation to properly evaluating the potential usefulness of the material to the defence, it must also be borne in mind that there is more than one perspective on this. Too often the perspective of the defence versus the prosecution alone is considered. What however is equally important is the position between respective defendants especially when there is a likelihood of there being a cut-throat defence. In a recent case of R -v- K and C and others it appears from a perusal of HHJ Ruckerís judgement staying the proceedings that no or insufficient account was paid to the relevance of undisclosed material as between different defendants. This is unacceptable and perhaps this requirement to have a plurality of perspectives only serves to emphasise the need for the use of independent counsel for the purpose of scrutinising the popular prosecution assertion in relation to material that it is of little or no relevance to the defence.
Furthermore prior to such a hearing the prosecution should be compelled in all but the most exceptional of cases to disclose to the defence at least general reasons why material is sought to be subject to PII, for example material which would reveal police methods of operation in relation to a specified feature of the case. Alternatively material which would tend to disclose identities of either informants or undercover police officers. At least then the defence know something of what has occurred and can make relevant submissions accordingly.
Overall my greatest fear concerning PII hearings is that they are increasingly being regarded by the prosecution as an attempt in an adversarial manner to try and obtain as much judicial sanction for non-disclosure as possible. Rather than recognising the inherent difficulties in expecting the trial judge alone to protect the interests of the defence and to therefore exercise a great measure of self-restraint before making applications, it appears that all too often prosecution counsel are unduly influenced by the investigators and agree to put forward either specious or weak applications which should never be made. If such an opportunistic attitude is to prevail then it is vital that sufficient safeguards against abuse are devised. At present the ex parte hearing system offers inadequate protection.
THIRD PARTY DISCLOSURE
On 1st April this year Section 66 and 67 of the CPIA was finally enacted together with the consequential rules of court. In a previous article in Medicine, Science and the Law I explained the overall intention and effect of this statutory change. The overall effect is to make it more difficult for the defence to obtain involuntary disclosure of material in the possession of third parties.
The test for involuntary disclosure in relation to third parties is whether
the material sought constitutes "material evidence". The meaning of
this term, not defined by statute, has been provided by the common law. The
leading authority on this point is R-v-Reading Justices ex parte
The effect of this upon the defence can be illustrated as follows; in a sexual abuse case brought the Crown Prosecution Service, the defence learn that the complainant made relevant statements to various teachers and/or social workers prior to him/her making an allegation to the police. Records of such statements are in the possession of the education authority and the local authority respectfully. Such statements, if as suspected prove to be inconsistent with the complainantís police witness statement, would potentially provide devastating cross-examination material. Moreover such previous inconsistent statements would become admissible evidence at the trial if they were put to the complainant and he/she denied their veracity. However the problem is that until the defence have access to such earlier statements in the hands of the third parties, they are unable to ascertain their relevance and admissibility but because of the test laid down in Reading Justices, cannot get access to them. A classic Catch-22 situation. The law therefore precludes the disclosure of what may be highly relevant material. Material wholly contradictory to the complaintís evidence held by a third party.
To make matters worse from a defence perspective, judges have been encouraged to use their powers to make a wasted costs order against the defence where it is judged to have issued a witness summons without a sufficient legal foundation.
The upshot of this situation is the potential for a miscarriage of justice. This fact can be demonstrated by the very recent case of R-v-Marshall. Here the defence did not seek involuntary disclosure from a social services department of their records concerning what social workers were told by the complainant concerning alleged assaults upon her by the accused. In the event post-conviction before the Court of Appeal, the records were disclosed. In the view of the Court they were found to constitute highly relevant and potentially damaging material for the cross-examination of the complainant and other prosecution witnesses. In the view of the Court, "the impact of the records on the mind of the jury in relation to all the counts would have been immenseÖ.." Unfortunately for the hapless defence solicitors, the Court held that in the light of the appellantís assertions of innocence, disclosure of the records should have been sought.
In my submission in
1ST DECEMBER 1999