Review into disclosure failures in criminal trials rules out extra sanctions

A review by two senior judges of disclosure failures by both the prosecution and the defence in criminal trials has rejected the creation of additional sanctions.

In a report Lord Justice Gross and Lord Justice Treacy do, however, recommend that sections 6B and 6D of the Criminal Procedure and Investigations Act 1996 are brought into force.

Section 6B requires the defendant to provide an updated defence statement in a specific time period or a written statement to confirm that there are no changes to the defence statement already served.

“Its effect is most likely to be felt in the larger cases in which disclosure is most burdensome,” the report said. “It reflects the nature of modern disclosure, as an ongoing, responsive process, and will make the use of inferences more precise and therefore more effective.”

Section 6D meanwhile takes the requirements of defence notification further than section 6C (Notification of intention to call defence witnesses) and requires the defendant to notify the court and prosecution of any expert that the defence instructs “with a view to his providing any expert opinion for possible use as evidence at the trial of the accused”.

The report said: “Notification is required before the defence has received the report, and hence before the defence knows whether it undermines or assists the defence case. Such a requirement will reduce the incidence of late notification of experts by the defence and will increase the court and the prosecution’s awareness of the defence case, and so reduce ambush.”

The judges also called for the “swift, consistent and sustained” implementation of the recommendations of the Review of Disclosure in Criminal Proceedings, which was conducted by Lord Justice Gross and published in September 2011.

The review by Lord Justice Gross and Lord Justice Treacy has also made a number of ancillary recommendations for the Criminal Procedure Rule Committee to consider.

These are that:

• Warnings about the consequences of disclosure failures, such as those under s. 11 of the Criminal Procedure and Investigations Act 1996 (CPIA), should be placed on the PCMH form, and that the judge should also provide an oral warning at hearings.
• The prosecution should articulate in writing any deficiencies of the defence statement, copying the document to the court and the defence and seeking an order from the court, if appropriate, in a process akin to a section 8 application.
• There should be a pro forma so that defence disclosure requests are not made in correspondence but are always in an addendum to the defence statement, justified and signed by both solicitor and counsel.

The report also recommended that listing officers, working in consultation with resident judges and the allocated trial judge, “ensure that sufficient time is allotted for judges to prepare and deal with prosecution and defence applications relating to disclosure, particularly in more complex cases”.

Lord Justice Gross’ 2011 review was prompted by concerns as to the operation of the disclosure regime contained in CPIA (as amended).

In that report he said significant, if incremental, improvement was required on the part of all concerned with the disclosure process. However, the judge made no recommendation for (or for consideration of) legislative intervention.

The 2011 report said: “Improvements in disclosure must be prosecution led or driven, in such a manner as to require the defence to engage – and to permit the defence to do so with confidence. The entire process must be robustly case managed by the judiciary. The tools are available…. they need to be used.”