With potentially drastic consequences to prosecutions for procedural failures, disclosure has long been treated by the defence as an Achilles heel of prosecutors, especially in the face of the realities of disclosure in the ‘information age’.

However, changes in the Criminal Procedure Rules which came into effect in 2015 (and were retained in subsequent amendments in April 2016, October 2016 & November 2016) mean that we may be moving away from this position in subtle ways.

Policy reasons for change

The position of the Criminal Procedure Rules with regards to criminal disclosure was noted by Gross LJ in his Review of Disclosure in Criminal Proceedings of September 2011 at paragraph 31:

The Rules now consolidate the Court’s case management powers and furnish a guide to the underlying culture intended to govern the conduct of criminal trials. Accordingly, the Rules are or should be of the first importance in the proper application of the disclosure regime.

As well as a consolidation and a first substantive re-numbering since 2005, the Criminal Procedure Rules 2015 (“CrimPR 2015”) included the introduction of amendments designed with an express policy objective of inducing cooperation between the parties as early as possible.

In particular, according to the Ministry of Justice’s Explanatory Memorandum To The Criminal Procedure Rules 2015, CrimPR 2015 Rule 3.3:

..now imposes on the parties an explicit duty to communicate with each other for the purpose of establishing whether the defendant is likely to plead guilty or not guilty; what is agreed and what is likely to be disputed; what information, or other material, is required by one party of another, and why; and what is to be done, by whom, and when.

According to the MoJ’s Explanatory Memorandum, this new duty has its origins in Sir Brian Leveson’s Review of Efficiency in Criminal Proceedings published on 23rd January 2015 in which, at paragraphs 33 to 34, it is recommended that:

the Criminal Procedure Rules should place a duty of direct engagement between identified representatives who have case ownership responsibilities … The Criminal Procedure Rules need to make clear that the parties are under a duty to engage at the first available opportunity

CrimPR 2015 Rule 3.3

This new policy direction finds expression in CrimPR 3.3(1) where it is stated that each party must “actively assist the court in fulfilling its duty under rule 3.2, without or if necessary with a direction”, with Rule 3.2 setting out the general obligation of the Court to “further the overriding objective by actively managing the case”.

Of particular interest to the area of disclosure is CrimPR 3.3(2)’s definition of “active assistance”, which includes:

(a) at the beginning of the case, communication between the prosecutor and the defendant at the first available opportunity and in any event no later than the beginning of the day of the first hearing;

(c) by such communication establishing, among other things―

(ii) what is agreed and what is likely to be disputed,

(iii) what information, or other material, is required by one party of another, and why, and

(iv) what is to be done, by whom, and when (without or if necessary with a direction);

The prosecution’s obligations of disclosure

Section 3(1)(a) of the Criminal Procedure and Investigations Act 1996 (“CPIA”) sets out the statutory test for disclosure and the prosecution’s duty:

The prosecutor must…disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused

As expressed by Sir Brian Leveson in R v R [2015] EWCA Crim 1941, sitting as the President of the Court of Appeal:

As noted in R v H [2004] at paragraphs 17 and 35, section 3 does not require the prosecutor to disclose material which is either neutral or adverse to the defendant; self-evidently, a defendant cannot complain of non-disclosure of material which would lessen his chances of acquittal. More than that, prosecutors have been consistently discouraged from disclosing material that they are not obliged to disclose, not least to avoid over-burdening and distracting the trial process with unnecessary materials.

Furthermore, it is clear that disclosure is an exercise to be taken in stages.

In indictable cases, the service of initial disclosure under section 3 triggers an obligation on the defence under section 5(1) of the CPIA to serve statements setting out the case for the defence. The information contained therein then informs the prosecution’s decisions pursuant to its continuing duty of disclosure under section 7A of the CPIA. At this point, section 8 of the CPIA gives the defence an opportunity to apply to the court for an order for disclosure, thereby providing a multi-layered set of safeguards for the process.

Impact on disclosure

In 2016, the Court of Appeal in R v Whale and another [2016] EWCA Crim 742 adopted the approach in R v R [2015] EWCA Crim 1941, and heard (and accepted) the submission from the prosecution that:

…Any other approach by the [prosecution] would have amounted to a dereliction of its duties, and a return to the now impermissible “keys to the warehouse” approach.

Sir Brian Leveson’s reference to the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases of December 2013 in his judgment in R v R [2015] EWCA Crim 1941 gives indication of the direction of travel which itself, he noted in paragraph 26, had its origins in the Further review of disclosure in criminal proceedings: sanctions for disclosure failure by Gross and Treacy LJJ, published in November 2012. At paragraph 28 of the judgment, Sir Brian quotes the Judicial Protocol with approval:

“Historically, disclosure was viewed essentially as being a matter to be resolved between the parties, and the court only became engaged if a particular issue or complaint was raised. That perception is now wholly out of date. The regime established under the Criminal Justice Act 2003 and the Criminal Procedure Rules gives judges the power – indeed, it imposes a duty on the judiciary – actively to manage disclosure in every case. The efficient, effective and timely resolution of these issues is a critical element in meeting the overriding objective of the Criminal Procedure Rules of dealing with cases justly.”

It is clear, in light of the exchange of information by the parties already envisaged by the CPIA, the new obligation to “actively assist” has the most potential to impact at the earliest stages, with active participation by the defence in the formulation of appropriate electronic search terms being an obvious area for possible co-operation between parties – actively supported by the courts.