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'A fair balance'? Evaluation of the operation of disclosure law
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The views expressed in this report are those of the authors, not necessarily those of the Home Office (nor do they reflect Government policy).
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... 22.Auld, 2001: 463. For an analysis regime's failings, please seePlotnikoff and Woolfson (2001) andQuirk (2006). ...
This article contends that piecemeal changes to the adversarial process since the dawn of the new millennium have transformed the CJS. The advent of (near) compulsory disclosure means the defendant has to reveal many elements of his defence. This dilutes the adversarial battle and leaves a process which is managerialist in nature. The Early Guilty Plea system is a mechanism to increase the efficiency by stemming the amount of cases reaching the trial stage. This has an impact on the defence lawyer’s role and renders him conflicted between advancing the best interest of the client against other pre-trial obligations. This small empirical study suggests that classic adversarial lawyers are seen as a relic of a bygone era. The modern criminal justice system prioritises speed and efficiency. If a case reaches court, the defendant is treated as an ‘informational resource’ of the court reminiscent of his position in the 17th century.
... The ability of Crown Prosecutors to fulfil this role effectively is doubtful: they depend heavily upon the police to identify material to disclose and most of this work is carried out by caseworkers rather than prosecutors. The scheme has been criticised widely, 11 but the changes introduced under the Criminal Justice Act 2003 may make matters worse with the defence required to disclose yet more details of her case (the identities of witnesses, whether expert evidence has been commissioned, legal authorities and arguments to be relied upon at trial) whilst the obligations upon the prosecution are reduced. There is now a single point of disclosure before the defence reveal anything of their case and then a continuing duty to disclose. ...
In this paper, focusing on the investigation and prosecution of crime, I would like to outline some of the recent changes and trends within criminal justice in England and Wales, and by way of comparison, to mention how some of these issues are developing in a very different European jurisdiction, that of France. There are two principal themes to my talk: the changing role of the prosecutor and of the defence lawyer in pre-trial investigations. These current developments exemplify not so much best practice, but rather areas of tension to be addressed in ensuring that the integrity of the criminal process and its values are not undermined by efficiency and political policy driven reform.
Following years of debate, the creation of the Court of Appeal (Criminal Division) in England and Wales signified official recognition that the criminal process may sometimes result in unsafe convictions. Central to the operation of the appellate system, is the ability of individuals who claim that their conviction is in error, to revisit and re-examine evidence gathered during the investigation, as well as that relied upon at their trial. High-profile miscarriages of justice have often only been remedied when there has been defence access to materials post-conviction (which had often not been disclosed pre-trial). While there has (rightly) been critical attention paid to pre-trial non-disclosure and the risks this poses to justice, such scrutiny has been lacking post-conviction. And yet, it is arguable that the rationale of preventing miscarriages of justice underpinning the duties of pre-conviction disclosure, subsists post-conviction. However, the Supreme Court judgment in R (Nunn) v Chief Constable of Suffolk Constabulary & Anor. [2014] UKSC 37 has made it more difficult to gain disclosure post-conviction. This paper details a worrying picture of inconsistency among police and prosecution authorities, with confusion over what should be retained (and how), and whether disclosure post-conviction should be permitted. It concludes that without significant intervention and reform, miscarriages of justice will continue uncorrected and the appellate system will become inconsequential.
The law relating to the disclosure of unused material by the prosecution to the defence continues to cause both operational difficulties and miscarriages of justice. This paper seeks to examine some of the underlying cultural issues within the police service which impact particularly on the law of disclosure. This is with particular reference to the ‘London City Bond’ cases, which ultimately failed due to the reluctance of investigators to recognise the dichotomy between the desire to convict and the due process rights of the accused.
CCTV evidence is regularly employed in criminal cases, yet there has been relatively little consideration of the manner in which such evidence is collected and subsequently handled. The use of CCTV evidence raises issues of disclosure, data protection and human rights, all of which have a far-reaching impact not only on the accused but also on others who find themselves recorded by surveillance systems. In addition, much of the video evidence collected during criminal investigations comes from third parties, such as shops and commercial premises, which are outside the direct control of the police. This only serves to compound the difficulty of managing such material within the investigative and trial processes. Although the courts are increasingly faced with sophisticated forms of evidence, from computer data to DNA, it is the everyday videotape which continues to present some of the greatest difficulties for in-vestigators, prosecutors and defendants. Criminal trials regularly involve consideration of video evidence, partly due to the growing popularity of urban surveillance systems 1 and also the proliferation of CCTV within private businesses, such as shops and petrol stations. Video evidence is undeniably persuasive, making it a valuable weapon in court, but its use raises issues of collection, retention, disclosure and storage, which can have a critical influence on the conduct of cases. 2 The situation is further complicated by legislation, not least the Criminal Procedure and Investigations Act 1996 (CPIA), which regulates the disclosure of 'unused material' (including videotape) to the defence, the Data Protection Act 1998 and, of course, the Human Rights Act 1998.
Ordered and Directed Acquittals in the Crown Court: A Time of Change?
- Brian Block
Brian Block et al, Ordered and Directed Acquittals in the Crown Court: A Time of Change? (1993) Crim.L.R. 95-106.
43-7, CPS Inspectorate's Report on the Review of Adverse Cases
- Para
Para. 5.43-7, CPS Inspectorate's Report on the Review of Adverse Cases (June 1999), Thematic Report 1/99.
Disclosure under the CPIA 1996': British Academy of Forensic Sciences seminar, Gray's Inn
- David Corker
David Corker, The CPIA
disclosure regime: PII and 3rd party disclosure, the defence perspective; 'Disclosure under the CPIA 1996': British Academy
of Forensic Sciences seminar, Gray's Inn, 1 December 1999.
The Human Rights Act: points for defence lawyers
Ed Cape (November 2000) The Human Rights Act: points for defence lawyers, Legal Action.
Disclosure under the CPIA 1996', British Academy of Forensic Sciences seminar, Gray's Inn
- Ben See
- Emmerson
See, for example, Ben Emmerson, The CPIA and The Human Rights Act, 'Disclosure under the CPIA 1996', British Academy
of Forensic Sciences seminar, Gray's Inn, 1 December 1999.
) Revealing Rights, Police Review
- David Pickover
David Pickover (3 November 2000) Revealing Rights, Police Review.