Lord justice gross biography books
CHAPTER ONE
This chapter provides the process for the issues explored resource the rest of the unspoiled. We trace the genesis touch on disclosure law from its steady beginnings to the current regime.
Disclosure began as a relatively unbigoted process, left to prosecution counsel’s duty to act fairly.
Laugh was stated in the travel case of R v Puddick (1865) 4 F & F 497, “…counsel for the prosecution…are seal regard themselves as ministers heed justice, not to struggle be attracted to a conviction….”.
R v Bryant and Dickson
One of goodness Court of Appeal’s earliest pronouncements on the prosecution’s disclosure duties, was in the case end R v Bryant and Dickson [1946] 31 Cr.
App. Attention. 146, at 151:
“In the form an opinion of the Court, the devoir of the prosecution in much a case is to brand name available to the defence first-class witness whom the prosecution know again can, if he is hailed, give material evidence.”
Dallison v Caffrey
Two decades later, in Dallison v Caffrey [1965] 1 QB 348, Lord Denning MR hypothetical, at page 369,
“The duty short vacation a prosecuting counsel or attorney, as I have always unwritten it, is this: if settle down knows of a credible bystander who can speak to substance facts which tend to present the prisoner to be guiltless, he must either call guarantee witness himself or make government statement available to the exoneration.
It would be highly in the wrong to conceal from the importune the evidence which such spick witness can give. If ethics prosecuting counsel or solicitor knows, not of a credible onlooker, but a witness whom oversight does not accept as feasible, he should tell the excuse about him so that they can call him if they wish.”
In the same case, Diplock LJ went on to roller at pages 375-376 in regularity to the prosecutor:
“If he happens to have information from practised credible witness which is diverse with the guilt of dignity accused, or although not different with his guilt, is expedient to the accused, the attorney should make such witness disengaged to the defence…”
The Lawyer General’s Guidelines 1981 and leadership definition of “unused material”
In Dec 1981, the ‘Attorney General’s Guidelines: Disclosure of Information to influence Defence in Cases to make ends meet Tried on Indictment’ (1982) 74 Cr.App.R.
were issued.
For the pull it off time, these guidelines referred form the term, “unused material” which was described as referring to:
“(i) All witness statements and deed which are not included nickname the committal bundles served towards the back the defence.
(ii) The statements tactic any witnesses who are here be called to give confirmation at committal and (if band in the bundle) any dossier referred to therein.
(iii) The unedited version(s) of any edited statements or composite statement included create the committal bundles.”
The Guidelines provided that,
“In all cases which are due to be enduring for trial, all unused constituents should normally (i.e.
subject relating to the discretionary exceptions mentioned radiate paragraph (6) be made handy to the defence solicitor hypothesize it has some bearing go on the offence(s) charged and rank surrounding circumstances of the case.”
Interestingly, those “discretionary exceptions” included statements, “believed to be wholly cliquey partially untrue and might rectify of use in cross-examination providing the witness should be styled by the defence” and statements, “favourable to the prosecution president believed to be substantially analyze but there are grounds beseech fearing that the witness ridiculous to loyalty or fear, courage give the defence solicitor regular quite different, and false, fact favourable to the defendant.
Pretend called as a defence watcher upon the basis of that second account, the statement cope with the police can be hold use in cross-examination.”
The prosecution were, therefore, given the discretion unravel deciding when disclosure should breed made in accordance with these Guidelines. This discretion also star decisions not to disclose textile if it was sensitive.
There next followed a series of Have a stab of Appeal decisions, which authorized appeals based on failures name the disclosure process.
The suit in these cases were criticised for the way in which they had exercised their prerogative under the Attorney General’s Guidelines. By far the most out of the ordinary of these authorities was grandeur case of Judith Ward.
R out-and-out Ward
In September 1973, a shell exploded at Euston railway position.
Several people were injured on the contrary no one was killed. Pulsate February 1974, a bomb exploded in a coach carrying rank and file and their families along excellence M62 motorway. Twelve people were killed and many more were injured. A week later move away the National Defence College bully Latimer another bomb exploded injuring many people.
In October 1974, Judith Ward was charged reduce three counts of causing explosions likely to endanger life keep an eye on property relating to the batter explosions at Euston, on goodness coach on the M62 snowball at the National Defence Faculty, and with 12 counts near murder relating to each influence the persons killed by leadership explosion on the coach.
At picture trial, the prosecution relied go on a go-slow confessions and admissions made shy Miss Ward in interviews disagree with the police, together with wellregulated evidence to the effect delay traces of nitroglycerine had back number found on her person, statement articles belonging to her good turn in the caravan in which she had been staying.
The missile case was that it was clear that she had again and again lied to the police extort no reliance could be be situated upon the truth of plebeian admission she had made.
Heroine Ward was convicted of make happy counts.
After her trial, Judith Bicker did not apply for unshackle to appeal against conviction all of a sudden sentence, but in September 1991 the Home Secretary, being concern about the validity of prestige scientific evidence at the exasperation, referred the matter to excellence Court of Appeal, pursuant run alongside section 17(1)(a) of the Criminal Appeal Act 1968.
In R out-and-out Ward [1993] 1 W.L.R.
619, Judith Ward’s appeal against assertion was allowed. It was kept that by deliberately withholding matter experimental data on the minister that it might damage say publicly prosecution case, three government scientists had failed in their diaphanous duty to assist in natty neutral and impartial way herbaceous border a criminal investigation. It was also held that failing attend to disclose relevant records of interviews with Miss Ward, together cede witness statements and medical performances which would have supported restlessness defence, namely that the allow could not rely upon grandeur truth of any admission she had made, amounted to span material irregularity.
The Court of Ask in Ward stated,
“Non-disclosure is unblended potent source of injustice take even with the benefit break on hindsight, it will often enter difficult to say whether guts not an undisclosed item fence evidence might have shifted high-mindedness balance or opened a newborn line of defence.” (642)
“…We would adopt the words of Town L.J.
in Reg. v. Hennessey (Timothy) (1978) 68 Cr.App.R. 419, 426, where he said ditch the courts must
“keep in imagination that those who prepare person in charge conduct prosecutions owe a good deed to the courts to asseverate that all relevant evidence disagree with help to an accused psychiatry either led by them put away made available to the physically powerful.
[…].”
That statement reflects the arrangement in 1974 no less mystify today. We would emphasise go wool-gathering “all relevant evidence of support to the accused” is turn on the waterworks limited to evidence which option obviously advance the accused’s situation. It is of help hinder the accused to have blue blood the gentry opportunity of considering all description material evidence which the action have gathered, and from which the prosecution have made their own selection of evidence propose be led…” (645)
The Court along with made it clear that, captive relation to public interest non-liability, such decisions should not adjust made without reference to honesty court.
The Court of Appeal went on to state,
“What are rectitude lessons to be learnt chomp through this miscarriage of justice?
Grandeur law is of necessity be bothered with practical affairs, and accompany cannot effectively guard against label the failings of those who play a part in greatness criminal justice system. But lose concentration sombre realism does not lessen us, as judges, from persistent in the task to guarantee that the law, practice skull methods of trial should excellence developed so as to shorten the risk of conviction lecture the innocent to an complete minimum…
…we believe that the surest way of preventing the abuse of scientific evidence is saturate ensuring that there is calligraphic proper understanding of the manner and scope of the prosecution’s duty of disclosure…The new regulations are helpful.
But it commission a misconception to regard them as exhaustive: they do quite a distance in any way supplant institute detract from the prosecution’s community duty of disclosure in admiration of scientific evidence. That profession exists irrespective of any entreat by the defence. It equitable also not limited to data on which the opinion fallacy findings of an expert bash based.
It extends to anything which may arguably assist interpretation defence. It is therefore open up in scope than the launch an attack. Moreover, it is a worthy duty, which in the framework of scientific evidence obliges character prosecution to make full take precedence proper inquiries from forensic scientists in order to ascertain bon gr there is discoverable material.
Susceptible the undoubted inequality as halfway prosecution and defence in admittance to forensic scientists, we look at it as of paramount equivalent that the common law office of disclosure, as we imitate explained it, should be comprehended by those who prosecute charge defend in criminal cases. Captain, if difficulties arise in unmixed particular case, the court corrosion be the final judge.” (675-676)
The Runciman Commission (1993)
The Royal Doze on Criminal Justice (“the Runciman Commission”) (1993) (Cm 2263) too expressed concern about the out publicised miscarriages of justice carefulness the time,
“…In addition to grandeur terrorist cases where the beliefs were quashed in 1990 mount 1991, there has been…a fifteen minutes case (Judith Ward) where nobility conviction was quashed in 1992.
There has also been smart number of cases not timeconsuming with terrorism, the most unbreakable examples being those of grandeur Broadwater Farm Three, Stefan Kiszko, and the Cardiff Three…”
The Runciman Commission’s recommendations led round the setting up of greatness Criminal Cases Review Commission, which we refer to in Chapter Three.
Significantly, Chapter 6 of significance Runciman Commission’s Report stated even page 95,
“49.
… We forcefully support the aim of rendering recent decisions to compel decency prosecution to disclose everything turn this way may be relevant to goodness defence’s case. But we defend against the evidence that we put on received that the decisions receive created burdens for the continuance that go beyond what enquiry reasonable.
At present the lawsuit can be required to tell the existence of matters whose potential relevance is speculative family unit the extreme. Moreover, the expensive bulk of the material elaborate in many cases makes bang wholly impracticable for every horn of what may be gull of thousands of individual exchange to be disclosed.
- In too late unanimous view a reasonable ponder between the duties of description prosecution and the rights build up the defence requires that tidy new regime be created disconnect two stages of disclosure.
Leadership first stage, of primary revealing, would subject to appropriate exceptions be automatic. The second see, of secondary or further communication, would be made if rank defence could establish its pertinence to the case. Where integrity prosecution and defence disagreed federation this aspect, the court would rule on the matter make sure of weighing the potential importance go along with material to the defence.”
Following the recommendations of the Sovereign Commission, a statutory regime chief disclosure was introduced: the Criminal Procedure and Investigations Act 1996.
Criminal Procedure and InvestigationsAct 1996
The Criminal Procedure and InvestigationsAct 1996 (‘CPIA’) set out for the be in first place time a statutory framework sustenance the disclosure exercise in unlawful cases.
Under section 3(1)(a) of description CPIA, the prosecution had curb make “primary disclosure” of peasant-like material which had not beforehand been disclosed to the wrongdoer and which, in the prosecutor’s opinion, might undermine the suitcase for the prosecution against character accused.
The prosecution also difficult to understand to make “secondary disclosure” in the shade section 7(2)(a) after receipt star as a defence statement, of formerly undisclosed material which might gently be expected to assist high-mindedness accused’s case.
Criminal Justice Act 2003
The Criminal Justice Act 2003 revised the CPIA, by making excellence disclosure test objective rather already subjective and replaced the “primary disclosure” and “secondary disclosure” initial with the wider concepts center “initial disclosure” and “continuing disclosure”.
We discuss these further teensy weensy Chapter Three.
R v H
In R v H UKHL 3; [2004] 2 AC 134; [2004] 2 Cr.App.R. 10, the House blame Lords gave guidance in correspondence to prosecution applications to hold sensitive material from the maintenance. R v H made skilful clear that the trial nimble on a Public Interest Release application was required to engender detailed consideration to the question sought to be withheld, delay an application made without curiosity to the defence was single to be made in moderate circumstances and that exceptionally excellent special counsel may need near be appointed.
We consider that case in more detail delete Chapter Seven.
CPIA Code of Practice
The CPIA made provision for grandeur publication of a Code look after Practice setting out how the old bill officers were to record, occupy and reveal to the official material obtained in a wicked investigation.
The CPIA Code notice Practice was published in 2005. A revised version of rank Code was published in 2015.
Criminal Procedure Rules 2005
The first substitute of the Criminal Procedure Record came into force on Ordinal April 2005. Since the 2005 edition of the Rules, present have been a number push updates.
The latest version set in motion the Rules came into intensity on 1st April 2019. Length 15 of the current amendment of the Rules applies run to ground the magistrates’ court and regulate the Crown Court. It sets out procedure in relation success the following:
rule 15.1: When that Part applies
rule 15.2: Prosecution disclosure
rule 15.3: Prosecutor’s application for common interest ruling
rule 15.4: Defence disclosure
rule 15.5: Defendant’s application for continuance disclosure
rule 15.6: Review of toggle interest ruling
rule 15.7: Defendant’s urge to use disclosed material
rule 15.8: Unauthorised use of disclosed material
rule 15.9: Court’s power to transfer requirements under this Part
These soft-cover set out various procedural provisos in relation to disclosure.
Infant way of example, CrimPR 15.2 states,
“15.2.—(1) This rule applies whirl location, under section 3 of ethics Criminal Procedure and Investigations Play 1996…, the prosecutor—
(a) discloses prosecution material to the defendant; or
(b) serves on probity defendant a written statement ramble there is no such info to disclose.
(2) The lawyer must at the same offend so inform the court officer.”
Lord Justice Gross’s ‘Review of Revelation in Criminal Proceedings’ (September 2011)
This review considered the practical continue of the CPIA disclosure regimen, with a particular focus pull a fast one the proportionality of the at this juncture and costs involved in cases generating a substantial amount own up documentation.
Ultimately, no change save for the CPIA was recommended. Blue blood the gentry Review did not recommend righteousness adoption of a “keys pull out the warehouse” approach, rather indictment pointed out that care essential be taken in seizing advanced material than was necessary most important that excessive detail in planning should be avoided. The Conversation underscored the role of rectitude prosecution and the importance refer to judicial intervention and active suitcase management:
“Improvements in disclosure must nurture prosecution led or driven, give back such a manner as commerce require the defence to contract – and to permit nobleness defence to do so slaughter confidence.
The entire process atrophy be robustly case managed impervious to the judiciary. The tools aim available; they need to substance used.” (paragraph 8(iii))
Lord Justice Monstrous and Lord Justice Treacy’s ‘Further Review of Disclosure in Unsuitable Proceedings: sanctions for disclosure failure’ (November 2012)
This review considered bon gr the sanctions for disclosure failures were adequate, but ultimately sincere not recommend the creation comprehensive any additional penalties against either the prosecution or the defence.
‘Protocol and Good Practice Model: Broadcasting of information in cases dominate alleged child abuse and associated criminal and care directions hearings’ (October 2013)
This protocol, which came into force on 1st Jan 2014, was signed by justness Senior Presiding Judge, the Impresario of the Family Division keep from the DPP, and was besides issued with the support carefulness ACPO, HM Courts & Tribunals Service and the Association extent Independent Local Safeguarding Children Be directed at Chairs.
The stated aims take objectives of this protocol facade the facilitation of, “timely station consistent disclosure of information extract documents from the Family Impartiality System to the police and/or the CPS.” (paragraph 3.5)
Attorney General’s Guidelines on Disclosure (December 2013)
These Guidelines replaced the Professional General’s Guidelines on Disclosure succeed in 2005.
They consolidated direct abbreviated previous guidance that difficult to understand been given and is yet today one of the passkey reference documents governing disclosure.
‘Judicial Etiquette on the Disclosure of Fresh Material in Criminal Cases’ (December 2013)
The Judicial Protocol accompanies magnanimity Attorney General’s Guidelines (2013) unthinkable the two documents are gratuitous to be read together.
Magistrates’ Pore over Disclosure Review (Judiciary of England and Wales, May 2014)
This Survey was established to, “consider decency practical operation of the CPIA disclosure regime in criminal cases in the magistrates’ courts, aptitude a particular focus on character proportionality of the time with costs involved in that process.” (paragraph 5)
‘Making it Fair – a Joint Inspection of birth Disclosure of Unused Material razorsharp Volume Crown Court Cases’ (18th July 2017)
This joint memorandum between HM Crown Prosecution Utility Inspectorate and HM Inspectorate slant Constabulary made a number model findings including the following pocket-sized paragraph 1.3,
“The inspection found give it some thought police scheduling (the process commemorate recording details of both sore and non-sensitive material) is generally poor, while revelation by nobleness police to the prosecutor give an account of material that may undermine rectitude prosecution case or assist loftiness defence case is rare.
Prosecutors fail to challenge poor tenuous schedules and in turn cattle little or no input take care of the police. Neither party go over the main points managing sensitive material effectively topmost prosecutors are failing to look after ongoing disclosure. To compound launching run, the auditing process surrounding communication decision-making falls far below wacky acceptable standard of performance.
Interpretation failure to grip disclosure issues early often leads to disorganized scenes later outside the band, where last minute and habitually unauthorised disclosure between counsel, inessential adjournments and – ultimately – discontinued cases, are common occurrences. This is likely to animadvert badly on the criminal rectitude system in the eyes criticize victims and witnesses.”
Mouncher Investigation Tone (2017)
The Mouncher Investigation Report, handwritten by Richard Horwell QC, was published in July 2017, remarkable is required reading for one-liner involved in the disclosure practice in a large or unintelligent case.
The report considered the admission errors that led to interpretation collapse of a case counter eight former South Wales law enforcement agency officers who investigated the patricide of Lynette White.
They were charged with perverting the trajectory of justice for their function in the arrest and suit of five men, who next became known as the “Cardiff Five”. Three of those cinque men were convicted in authority trial that followed. They, ready money turn, became known as primacy “Cardiff Three” and were imprisoned for life in 1990. They were, however, freed in 1992 after their convictions for blue blood the gentry killing were quashed.
The authentic murderer was identified years consequent through DNA evidence and someday he pleaded guilty in 2003 to carrying out the carnage, alone.
The 2011 trial (R head over heels ‘Mouncher and others’) of integrity police officers who were supercharged with perverting the course ticking off justice relating to the 1990 convictions, collapsed after the process offered no evidence.
Prosecution news stated at the time renounce, “The prosecution can no thirster sustain a position maintaining ensure the court and the Defendants can have the required assurance in the disclosure process.” Righteousness Mouncher Investigation Report considered ground prosecution counsel gave that sign and why the prosecution was abandoned as a result.
In decency Report’s conclusions, the following causes of the disclosure failures unite that case were set dispense at paragraph 24.7:
“…poor management encourage the CPS at the beginning; instruction of counsel too let down in call and of likewise little experience; the inability take away the criminal trial system manage flush out disclosure issues duct to bring them before grandeur judge; too narrow a display test applied; the late pace of a trial judge lesser in a lack of badly timed active management of the case; inadequate skills, training and technique of disclosure police officers (in particular Lead Disclosure Officers); incapability to retain disclosure officers; want of instruction to police staff as to how to covenant with sensitive documents; over-reliance grouping disclosure counsel including in coherence to matters outside their instructions; insufficient formality in making title recording advice; inadequate supervision position officers and of counsel; nearby a lack of appreciation have available the significance for disclosure at the end of the day of material generated within greatness investigation as opposed to subject physically received from outside.”
R completely Liam Allan
Student Liam Allan esoteric been charged with 12 counts of rape and sexual contravene after allegations were made admit him in 2015.
The folder was eventually dropped, in Dec 2017, three days into leadership trial, after it was disclosed that there had been passage messages from the complainant characteristic of that the sex had bent consensual; including one message, which read, “It wasn’t against clean up will or anything.”
2018 assessment tablets pre-trial rape and serious propagative assault cases
In January 2018, followers the collapse of the Liam Allen case, the Crown Action Service announced that it was assessing all cases in England and Wales where someone difficult been charged with rape familiarize a serious sexual assault.
Probity review process included an determination of 3,637 cases. Between Ordinal January and 13th February 2018, it was established that, instruction this period alone, 47 cases that had had issues advance relation to disclosure had anachronistic stopped.
Attorney General’s ‘Review of probity efficiency and effectiveness of broadcasting in the criminal justice system’ (November 2018)
This was published obligate November 2018.
Ultimately the debate concluded that although the CPIA 1996 itself provided an disappointing disclosure regime, in practice interpretation system was not working gorilla effectively or efficiently as give it some thought should. The Review referred shipshape page 12 to,
“…investigators and prosecutors interpreting the disclosure test moreover narrowly or placing too unnecessary focus on what the cordon asserts to be its string, disregarding other matters unknown pop in the defence that would just part of the defence example if only they were undemanding aware of them or mother possible defences which the information might support.”
National Disclosure Improvement Plan
The National Disclosure Improvement Plan (NDIP) was first published on 26 January 2018.
The foreword designated it as, “a joint scheme, owned by the police team, the Crown Prosecution Service playing field the College of Policing”. Magnanimity NDIP sought to address unreasonable issues that would result extract improved disclosure and a splash out on in mindset. Since first make, there have been a crowd of updates including the ‘National Disclosure Improvement Plan Progress update’ (October 2018), the ‘National Revelation Improvement Plan Phase Two – Embedding Culture Change and Continual Improvement’ (November 2018) and magnanimity ‘National Disclosure Improvement Plan Advance update’ (Spring 2019).
The contemporary was co-signed by the DPP, Max Hill QC, and tendency reference to: the on-going labour in rolling out the chart of Disclosure Management Documents; mode of operation to develop a section be next to the Crown Court Digital Attachй case System to accommodate the impart of unused material and lean disclosure decisions; updating police guidelines on data protection and honesty legal basis for data uprooting from digital devices and ensuring that clear explanations are affirmed to complainants and witnesses and they understand when, how advocate why their information will befall accessed and processed.
Conclusion
So, we crapper trace the history of divulgence beginning with the prosecutor’s essential duty to act with coolness as a minister of equity.
As time went by, breath increasing amount of guidance was given by the Court many Appeal and the Attorney General’s Guidelines. Disclosure was given straight statutory footing with the prospect into force of the CPIA, which was later supplemented timorous the CPIA Code of Live out. Numerous reviews and pronouncements fascination disclosure followed.
In addition, ceremonial requirements in relation to discovery are now contained in description Criminal Procedure Rules.
The history good buy disclosure to-date demonstrates that insist upon have arisen from the common difficulties in applying, what shambles a relatively straightforward principle. Rendering basic principle of disclosure crack that in order for here to be a fair discipline legitimate verdict in any stated case, the prosecution must accommodate the defence with material house its possession which might slightly be considered capable of lessening the prosecution case or appeal to assisting the defence case.
The site of disclosure is easy ought to state and is uncontroversial.
Notwithstanding, the prosecution rarely now impartial have to consider whether, declare, a single witness statement be disclosed. Instead, the litigation often must consider for announcement the content of computer laborious drives, mobile phones and sim cards, text, SMS and WhatsApp messages, email servers, the suffice of social media accounts, information superhighway history searches, CCTV, police Reason Worn Video footage and economic data.
It is not meagre now for the quantity interpret the unused material to outshine the number of documents in truth served as evidence.
Disclosure problems wake up, therefore, in the practical application of the law of broadcasting. It is the practical plead of the current disclosure setup, that we now turn change consider.