‘Give the keys back’: HFW investigations manager calls for changes to disclosure
After nearly thirty years, it’s time to rethink disclosure. Remove the burden of the prosecution and give the assessment of what is useful to the defense, to the defense, and return to them what is called “the keys to the warehouse”.
Disclosure in a criminal case is the process undertaken by the prosecution to identify material that may assist the defense and disclose it to them.
The failure of the lawsuit against MM. Woods and Marshall stems from the Serco investigation that began in 2013. The defendants were interviewed by the SFO in 2016. The embarrassing failure of their trial in 2021 is the latest in a long line of examples where flaws in disclosure have resulted in the collapse of cases or miscarriages of justice. It is unlikely to be the last.
Following the failure of the trial, Brian Altman QC was asked to investigate and produce a report. Mr. Altman’s report released in July 2022 details numerous shortcomings in the disclosure process conducted by the SFO.
Mr. Altman’s mandate was not to recommend a change in the law but to respond to that mandate:
“Examining the circumstances, facts and issues which caused or contributed to the disclosure failures in R v Woods and Marshall before Mrs Justice Tipples at Southwark Crown Court, which resulted in the SFO providing no evidence against the two defendants April 26, 2021”.
The report lists 18 recommendations to reduce the risk of similar failures happening again under the current disclosure regime, although it was agreed that there is no silver bullet to prevent future similar failures.
To understand where we are, we have to go back nearly thirty years.
The current system was introduced in the Criminal Procedure and Inquiries Act 1996 (“CPIA”) ostensibly to make the disclosure process more efficient while providing the defense with the evidence it needs.
Counterintuitively, this puts the onus on the prosecution to assess what may be of interest/useful to the defense and provide it to them.
As the Home Secretary explained at the time when the bill, which later became the CPIA, was before parliament, the founding of the CPIA was a series of high-profile miscarriages of justice cases. The convictions were overturned due to non-disclosure of indictment material that diverged from the defendants. To prevent this from happening, courts have expanded disclosure obligations and, in general terms, have required the prosecutor to disclose to the accused anything that might be relevant to an issue at trial.
The defendants were said to have exploited the volume of documents provided to them to delay and obstruct the trial.
The CPIA was born.
Of course, the backdrop in 1996 was very different. The lack of e-discovery combined with generous legal aid for criminal cases also meant a legitimate concern about the waste of public money by defense attorneys reviewing vast amounts of irrelevant, publicly funded documents. public.
Today, e-discovery has a head start on data sorting. Legal aid would not fund unnecessary examinations.
However, the CPIA was not the end of the story. Over the years, there have been other cases, too numerous to list, of trial failures due to the prosecution’s failure to properly conduct the disclosure process in accordance with the CPIA.
Mr. Altman summarized the current position “The concept of disclosure as a fundamental element of the right to a fair trial is set out in the current (2022) Attorney General’s Guidelines…
… the Guidelines emphasize that the law of disclosure provides a proportionate system in which the defense has access to material that may undermine the prosecution’s case or strengthen its own case, without the real issues of the trial being overwhelmed in the process… ”
“The CPIA requires relevant unused material to be described in the list of unused materials. In each case, there are two programs, one of non-sensitive material (the MG6C) and the second of sensitive material (the MG6D). The schedule of non-sensitive documents is communicated to the defense.”
To meet these requirements, the prosecution must systematically review the documents and assess whether they meet these criteria.
There are many obvious problems with this. These include that the disclosure process takes time with potential catastrophic consequences if prosecutors get it wrong (as was the case in Woods and Marshall).
Prosecutors are strapped for money and do not have sufficient resources to undertake this work with the inevitable result that mistakes are made with consequent consequences. It will continue.
It’s time to put the defense back to work. They are in the best position to assess what is useful for the defense. Not the accusation.