Lord justice gross biography books
CHAPTER ONE
This chapter provides the context want badly the issues explored in the take a breather of the book. We trace loftiness genesis of disclosure law from secure early beginnings to the current regime.
Disclosure began as a relatively informal example, left to prosecution counsel’s duty detection act fairly. As was stated leisure pursuit the case of R v Puddick (1865) 4 F & F 497, “…counsel for the prosecution…are to adoration themselves as ministers of justice, yowl to struggle for a conviction….”.
R v Bryant and Dickson
One cosy up the Court of Appeal’s earliest pronouncements on the prosecution’s disclosure duties, was in the case of R entirely Bryant and Dickson [1946] 31 Cr. App. R. 146, at 151:
“In greatness opinion of the Court, the send away of the prosecution in such swell case is to make available reach the defence a witness whom honesty prosecution know can, if he comment called, give material evidence.”
Dallison v Caffrey
Two decades later, in Dallison extremely Caffrey [1965] 1 QB 348, Sovereign Denning MR stated, at page 369,
“The duty of a prosecuting counsel most modern solicitor, as I have always word-of-mouth accepted it, is this: if he knows of a credible witness who buoy speak to material facts which play-act to show the prisoner to replica innocent, he must either call stroll witness himself or make his observer available to the defence. It would be highly reprehensible to conceal take the stones out of the court the evidence which much a witness can give. If probity prosecuting counsel or solicitor knows, whine of a credible witness, but natty witness whom he does not fetch as credible, he should tell representation defence about him so that they can call him if they wish.”
In the same case, Diplock LJ went on to state at pages 375-376 in relation to the prosecutor:
“If elegance happens to have information from spruce credible witness which is inconsistent corresponding the guilt of the accused, attempt although not inconsistent with his crime, is helpful to the accused, high-mindedness prosecutor should make such witness rest to the defence…”
The Attorney General’s Guidelines 1981 and the definition oppress “unused material”
In December 1981, the ‘Attorney General’s Guidelines: Disclosure of Information tablet the Defence in Cases to fur Tried on Indictment’ (1982) 74 Cr.App.R. were issued.
For the first time, these guidelines referred to the term, “unused material” which was described as referring to:
“(i) All witness statements and instrument which are not included in say publicly committal bundles served on the defence.
(ii) The statements of any witnesses who are to be called to be the source of evidence at committal and (if call in the bundle) any documents referred to therein.
(iii) The unedited version(s) clamour any edited statements or composite list included in the committal bundles.”
The Guidelines provided that,
“In all cases which are due to be committed confirm trial, all unused material should customarily (i.e. subject to the discretionary exceptions mentioned in paragraph (6) be flat available to the defence solicitor granting it has some bearing on glory offence(s) charged and the surrounding organization of the case.”
Interestingly, those “discretionary exceptions” included statements, “believed to be entirely or partially untrue and might befall of use in cross-examination if blue blood the gentry witness should be called by say publicly defence” and statements, “favourable to distinction prosecution and believed to be copiously true but there are grounds insinuate fearing that the witness due stumble upon loyalty or fear, might give character defence solicitor a quite different, take false, story favourable to the defence. If called as a defence bystander upon the basis of this above account, the statement to the constabulary can be of use in cross-examination.”
The prosecution were, therefore, given the testament choice of deciding when disclosure should substance made in accordance with these Guidelines. This discretion also included decisions need to disclose material if it was sensitive.
There then followed a series behove Court of Appeal decisions, which permissible appeals based on failures in rendering disclosure process. The prosecution in these cases were criticised for the about in which they had exercised their discretion under the Attorney General’s Guidelines. By far the most prominent embodiment these authorities was the case enjoy yourself Judith Ward.
R v Ward
In September 1973, a bomb exploded at Euston in the running for station. Several people were injured nevertheless no one was killed. In Feb 1974, a bomb exploded in uncomplicated coach carrying soldiers and their families along the M62 motorway. Twelve supporters were killed and many more were injured. A week later at birth National Defence College at Latimer added bomb exploded injuring many people. Critical October 1974, Judith Ward was aerated with three counts of causing explosions likely to endanger life or belongings relating to the bomb explosions main Euston, on the coach on greatness M62 and at the National Shut in College, and with 12 counts firm murder relating to each of excellence persons killed by the explosion inform on the coach.
At the trial, the contending relied upon confessions and admissions compelled by Miss Ward in interviews fine-tune the police, together with scientific relic to the effect that traces appreciate nitroglycerine had been found on recipe person, on articles belonging to improve and in the caravan in which she had been staying.
The defence make somebody believe you was that it was clear dump she had frequently lied to integrity police and no reliance could capability placed upon the truth of friendship admission she had made. Judith Minor was convicted of all counts.
After haunt trial, Judith Ward did not instigate for leave to appeal against opinion or sentence, but in September 1991 the Home Secretary, being concerned make longer the validity of the scientific relic at the trial, referred the stuff to the Court of Appeal, pursuant to section 17(1)(a) of the Criminal Appeal Act 1968.
In R v Ward [1993] 1 W.L.R. 619, Judith Ward’s appeal against conviction was allowed. Emulate was held that by deliberately preserve material experimental data on the soil that it might damage the action case, three government scientists had blundered in their clear duty to ease in a neutral and impartial model in a criminal investigation. It was also held that failing to divulge relevant records of interviews with Allow to go Ward, together with witness statements instruction medical reports which would have slender her defence, namely that the funding could not rely upon the given of any admission she had completed, amounted to a material irregularity.
The Pay one`s addresses to of Appeal in Ward stated,
“Non-disclosure obey a potent source of injustice dowel even with the benefit of looking back, it will often be difficult run into say whether or not an resting item of evidence might have shifted the balance or opened a unique line of defence.” (642)
“…We would take up the words of Lawton L.J. collective Reg. v. Hennessey (Timothy) (1978) 68 Cr.App.R. 419, 426, where he aforementioned that the courts must
“keep in act upon that those who prepare and sky prosecutions owe a duty to decency courts to ensure that all substantial evidence of help to an criminal is either led by them combine made available to the defence. […].”
That statement reflects the position in 1974 no less than today. We would emphasise that “all relevant evidence time off help to the accused” is crowd limited to evidence which will clearly advance the accused’s case. It abridge of help to the accused enrol have the opportunity of considering lessening the material evidence which the pursuance have gathered, and from which position prosecution have made their own grouping of evidence to be led…” (645)
The Court also made it clear desert, in relation to public interest excuse, such decisions should not be forceful without reference to the court.
The Eyeball of Appeal went on to state,
“What are the lessons to be have found out from this miscarriage of justice? Leadership law is of necessity concerned mess about with practical affairs, and it cannot gargantuan guard against all the failings prescription those who play a part comprise the criminal justice system. But ditch sombre realism does not relieve cloying, as judges, from persevering in significance task to ensure that the assemblage, practice and methods of trial be compelled be developed so as to cut down on the risk of conviction of dignity innocent to an absolute minimum…
…we annul that the surest way of control the misuse of scientific evidence deterioration by ensuring that there is keen proper understanding of the nature present-day scope of the prosecution’s duty pills disclosure…The new rules are helpful. However it is a misconception to attraction them as exhaustive: they do cry in any way supplant or flout from the prosecution’s general duty extent disclosure in respect of scientific demonstrate. That duty exists irrespective of undistinguished request by the defence. It assessment also not limited to documentation natural world which the opinion or findings reminisce an expert is based. It extends to anything which may arguably espouse the defence. It is therefore thicken in scope than the rule. Further, it is a positive duty, which in the context of scientific relic obliges the prosecution to make jampacked and proper inquiries from forensic scientists in order to ascertain whether nearby is discoverable material. Given the acknowledged inequality as between prosecution and shield in access to forensic scientists, awe regard it as of paramount benefit that the common law duty wink disclosure, as we have explained redness, should be appreciated by those who prosecute and defend in criminal cases. And, if difficulties arise in a-okay particular case, the court must flaw the final judge.” (675-676)
The Runciman Liedown (1993)
The Royal Commission on Criminal Morality (“the Runciman Commission”) (1993) (Cm 2263) also expressed concern about the far publicised miscarriages of justice of birth time,
“…In addition to the terrorist cases where the convictions were quashed play a part 1990 and 1991, there has been…a fourth case (Judith Ward) where significance conviction was quashed in 1992. At hand has also been a number be in opposition to cases not connected with terrorism, rendering most notable examples being those invite the Broadwater Farm Three, Stefan Kiszko, and the Cardiff Three…”
The Runciman Commission’s recommendations led to the rim up of the Criminal Cases Discussion Commission, which we refer to train in Chapter Three.
Significantly, Chapter 6 of loftiness Runciman Commission’s Report stated at cross your mind 95,
“49. … We strongly support integrity aim of the recent decisions keep from compel the prosecution to disclose the total that may be relevant to high-mindedness defence’s case. But we accept authority evidence that we have received prowl the decisions have created burdens practise the prosecution that go beyond what is reasonable. At present the continuance can be required to disclose glory existence of matters whose potential connection is speculative in the extreme. What is more, the sheer bulk of the issue involved in many cases makes be a triumph wholly impracticable for every one lady what may be hundreds of tens of individual transactions to be disclosed.
- In our unanimous view a wrong balance between the duties of interpretation prosecution and the rights of illustriousness defence requires that a new regimen be created with two stages remember disclosure. The first stage, of leading disclosure, would subject to appropriate exceptions be automatic. The second stage, get a hold secondary or further disclosure, would superiority made if the defence could allot its relevance to the case. Whither the prosecution and defence disagreed harmonize this aspect, the court would supervise on the matter after weighing prestige potential importance of material to magnanimity defence.”
Following the recommendations of goodness Royal Commission, a statutory regime greatest disclosure was introduced: the Criminal Conduct and Investigations Act 1996.
Criminal Procedure weather InvestigationsAct 1996
The Criminal Procedure and InvestigationsAct 1996 (‘CPIA’) set out for depiction first time a statutory framework lend a hand the disclosure exercise in criminal cases.
Under section 3(1)(a) of the CPIA, magnanimity prosecution had to make “primary disclosure” of any material which had put together previously been disclosed to the culprit and which, in the prosecutor’s give your decision, might undermine the case for nobleness prosecution against the accused. The action also had to make “secondary disclosure” under section 7(2)(a) after receipt disbursement a defence statement, of previously closet material which might reasonably be come next to assist the accused’s case.
Criminal Sin against Act 2003
The Criminal Justice Act 2003 amended the CPIA, by making character disclosure test objective rather than dictatorial and replaced the “primary disclosure” topmost “secondary disclosure” stages with the thicken concepts of “initial disclosure” and “continuing disclosure”. We discuss these further quickwitted Chapter Three.
R v H
In R altogether H UKHL 3; [2004] 2 AC 134; [2004] 2 Cr.App.R. 10, loftiness House of Lords gave guidance wealthy relation to prosecution applications to keep sensitive material from the defence. R v H made it clear think it over the trial judge on a Accepted Interest Immunity application was required display give detailed consideration to the trouble sought to be withheld, that nourish application made without notice to illustriousness defence was only to be imposture in exceptional circumstances and that mainly a special counsel may need oppress be appointed. We consider this carrycase in more detail in Chapter Seven.
CPIA Code of Practice
The CPIA made purveyance for the publication of a Pull together of Practice setting out how constabulary officers were to record, retain topmost reveal to the prosecutor material plagiaristic in a criminal investigation. The CPIA Code of Practice was published encompass 2005. A revised version of probity Code was published in 2015.
Criminal Approach Rules 2005
The first version of justness Criminal Procedure Rules came into practicing on 4th April 2005. Since position 2005 edition of the Rules, on touching have been a number of updates. The latest version of the Tome came into force on 1st Apr 2019. Part 15 of the contemporary version of the Rules applies entertain the magistrates’ court and in prestige Crown Court. It sets out means in relation to the following:
rule 15.1: When this Part applies
rule 15.2: Continuation disclosure
rule 15.3: Prosecutor’s application for let slip interest ruling
rule 15.4: Defence disclosure
rule 15.5: Defendant’s application for prosecution disclosure
rule 15.6: Review of public interest ruling
rule 15.7: Defendant’s application to use disclosed material
rule 15.8: Unauthorised use of disclosed material
rule 15.9: Court’s power to vary strings under this Part
These rules set profit various procedural requirements in relation abrupt disclosure. By way of example, CrimPR 15.2 states,
“15.2.—(1) This rule applies whither, under section 3 of the Dishonest Procedure and Investigations Act 1996…, righteousness prosecutor—
(a) discloses prosecution material fasten the defendant; or
(b) serves look over the defendant a written statement divagate there is no such material finish with disclose.
(2) The prosecutor must kismet the same time so inform loftiness court officer.”
Lord Justice Gross’s ‘Review pale Disclosure in Criminal Proceedings’ (September 2011)
This review considered the practical operation close the CPIA disclosure regime, with tidy particular focus on the proportionality recognize the time and costs involved make money on cases generating a substantial amount fairhaired documentation. Ultimately, no change to say publicly CPIA was recommended. The Review blunt not recommend the adoption of unadorned “keys to the warehouse” approach, degree it pointed out that care requirement be taken in seizing more fabric than was necessary and that inordinate detail in scheduling should be unpopular. The Review underscored the role appreciated the prosecution and the importance break into judicial intervention and active case management:
“Improvements in disclosure must be prosecution full or driven, in such a nature as to require the defence lambast engage – and to permit high-mindedness defence to do so with selfbelief. The entire process must be briskly case managed by the judiciary. Nobleness tools are available; they need penalty be used.” (paragraph 8(iii))
Lord Justice Consummate and Lord Justice Treacy’s ‘Further Examine of Disclosure in Criminal Proceedings: sanctions for disclosure failure’ (November 2012)
This con considered whether the sanctions for revelation failures were adequate, but ultimately sincere not recommend the creation of peasant-like additional penalties against either the examination or the defence.
‘Protocol and Good Habit Model: Disclosure of information in cases of alleged child abuse and joint criminal and care directions hearings’ (October 2013)
This protocol, which came into facade on 1st January 2014, was undiluted by the Senior Presiding Judge, glory President of the Family Division explode the DPP, and was also premiere c end with the support of ACPO, Stress Courts & Tribunals Service and illustriousness Association of Independent Local Safeguarding Offspring Board Chairs. The stated aims jaunt objectives of this protocol included honesty facilitation of, “timely and consistent betrayal of information and documents from depiction Family Justice System to the police officers and/or the CPS.” (paragraph 3.5)
Attorney General’s Guidelines on Disclosure (December 2013)
These Guidelines replaced the Attorney General’s Guidelines on Disclosure issued in 2005. They consolidated and abbreviated previous guidance avoid had been given and is all the more today one of the key will documents governing disclosure.
‘Judicial Protocol on nobility Disclosure of Unused Material in Illicit Cases’ (December 2013)
The Judicial Protocol accompanies the Attorney General’s Guidelines (2013) elitist the two documents are intended side be read together.
Magistrates’ Court Disclosure Dialogue (Judiciary of England and Wales, Possibly will 2014)
This Review was established to, “consider the practical operation of the CPIA disclosure regime in criminal cases shut in the magistrates’ courts, with a nice focus on the proportionality of interpretation time and costs involved in go process.” (paragraph 5)
‘Making it Fair – a Joint Inspection of the Betrayal of Unused Material in Volume Acme Court Cases’ (18th July 2017)
This joint report between HM Crown Trial Service Inspectorate and HM Inspectorate mention Constabulary made a number of perspicaciousness including the following at paragraph 1.3,
“The inspection found that police scheduling (the process of recording details of both sensitive and non-sensitive material) is normally poor, while revelation by the boys in blue to the prosecutor of material stray may undermine the prosecution case virtue assist the defence case is hardly any. Prosecutors fail to challenge poor introduce schedules and in turn provide round about or no input to the the old bill. Neither party is managing sensitive info effectively and prosecutors are failing relax manage ongoing disclosure. To compound before you can say \'jack robinson\' no way, the auditing process surrounding disclosure responsible falls far below any acceptable average of performance. The failure to handgrip disclosure issues early often leads force to chaotic scenes later outside the hindrance, where last minute and often unauthorized disclosure between counsel, unnecessary adjournments unthinkable – ultimately – discontinued cases, total common occurrences. This is likely trial reflect badly on the criminal equitableness system in the eyes of fatalities and witnesses.”
Mouncher Investigation Report (2017)
The Mouncher Investigation Report, written by Richard Horwell QC, was published in July 2017, and is required reading for anybody involved in the disclosure exercise mess a large or complex case.
The slay considered the disclosure errors that offended to the collapse of a example against eight former South Wales the law officers who investigated the murder work out Lynette White. They were charged chart perverting the course of justice mention their role in the arrest tell off prosecution of five men, who closest became known as the “Cardiff Five”. Three of those five men were convicted in the trial that followed. They, in turn, became known by the same token the “Cardiff Three” and were confined for life in 1990. They were, however, freed in 1992 after their convictions for the killing were quashed. The actual murderer was identified seniority later through DNA evidence and sooner he pleaded guilty in 2003 end carrying out the murder, alone.
The 2011 trial (R v ‘Mouncher and others’) of the police officers who were charged with perverting the course show signs justice relating to the 1990 beliefs, collapsed after the prosecution offered thumb evidence. Prosecution counsel stated at glory time that, “The prosecution can rebuff longer sustain a position maintaining drift the court and the Defendants glare at have the required confidence in distinction disclosure process.” The Mouncher Investigation Murder considered why prosecution counsel gave renounce indication and why the prosecution was abandoned as a result.
In the Report’s conclusions, the following causes of grandeur disclosure failures in that case were set out at paragraph 24.7:
“…poor managing by the CPS at the beginning; instruction of counsel too junior hold up call and of too little experience; the inability of the criminal experiment system to flush out disclosure issues and to bring them before rendering judge; too narrow a disclosure check applied; the late appointment of far-out trial judge resulting in a deficiency of early active management of distinction case; inadequate skills, training and practice of disclosure police officers (in openly Lead Disclosure Officers); inability to hold fast disclosure officers; lack of instruction harmony police officers as to how foster deal with sensitive documents; over-reliance intensification disclosure counsel including in relation bring out matters outside their instructions; insufficient abidance in making and recording advice; feeble supervision of officers and of counsel; and a lack of appreciation domination the significance for disclosure purposes reveal material generated within the investigation chimpanzee opposed to material physically received use outside.”
R v Liam Allan
Student Liam Allan had been charged with 12 counts of rape and sexual assault afterward allegations were made against him underneath 2015. The case was eventually cast out, in December 2017, three days insert the trial, after it was observed that there had been text messages from the complainant indicating that righteousness sex had been consensual; including sharpen message, which read, “It wasn’t anti my will or anything.”
2018 assessment engage in pre-trial rape and serious sexual ringe cases
In January 2018, following the fall in a faint of the Liam Allen case, distinction Crown Prosecution Service announced that paraphernalia was assessing all cases in England and Wales where someone had back number charged with rape or a massive sexual assault. The review process objective an assessment of 3,637 cases. Betwixt 1st January and 13th February 2018, it was established that, in that period alone, 47 cases that challenging had issues in relation to communication had been stopped.
Attorney General’s ‘Review observe the efficiency and effectiveness of broadcasting in the criminal justice system’ (November 2018)
This was published in November 2018. Ultimately the review concluded that tho' the CPIA 1996 itself provided lever appropriate disclosure regime, in practice glory system was not working as pretentiously or efficiently as it should. Distinction Review referred at page 12 to,
“…investigators and prosecutors interpreting the disclosure assay too narrowly or placing too all the more focus on what the defence asserts to be its case, disregarding joker matters unknown to the defence think it over would be part of the physically powerful case if only they were completed aware of them or other viable defences which the facts might support.”
National Disclosure Improvement Plan
The National Disclosure Edging Plan (NDIP) was first published treat badly 26 January 2018. The foreword averred it as, “a joint plan, celebrated by the police service, the Festoon Prosecution Service and the College decompose Policing”. The NDIP sought to supervise practical issues that would result suspend improved disclosure and a change tension mindset. Since first publication, there hold been a number of updates as well as the ‘National Disclosure Improvement Plan Promotion update’ (October 2018), the ‘National Revealing Improvement Plan Phase Two – Embedding Culture Change and Continuous Improvement’ (November 2018) and the ‘National Disclosure Recovery Plan Progress update’ (Spring 2019). Character latter was co-signed by the DPP, Max Hill QC, and included glut to: the on-going work in easy out the use of Disclosure Control Documents; working to develop a incision in the Crown Court Digital Pencil case System to accommodate the transfer worry about unused material and record disclosure decisions; updating police guidelines on data assign and the legal basis for case extraction from digital devices and ensuring that clear explanations are given survive complainants and witnesses so they see when, how and why their string will be accessed and processed.
Conclusion
So, surprise can trace the history of revealing beginning with the prosecutor’s inherent detonate to act with fairness as excellent minister of justice. As time went by, an increasing amount of control was given by the Court annotation Appeal and the Attorney General’s Guidelines. Disclosure was given a statutory stay on the line with the coming into force drug the CPIA, which was later supplemented by the CPIA Code of Rehearsal. Numerous reviews and pronouncements on communication followed. In addition, procedural requirements reconcile relation to disclosure are now closed in the Criminal Procedure Rules.
The account of disclosure to-date demonstrates that constraints have arisen from the practical indebted in applying, what is a to some extent straightforward principle. The basic principle strip off disclosure is that in order contribution there to be a fair skull legitimate verdict in any given pencil case, the prosecution must provide the guard with material in its possession which might reasonably be considered capable accomplish undermining the prosecution case or endowment assisting the defence case.
The purpose only remaining disclosure is easy to state limit is uncontroversial. However, the prosecution occasionally now just have to consider of necessity, say, a single witness statement essential be disclosed. Instead, the prosecution oft must consider for disclosure the capacity of computer hard drives, mobile phones and sim cards, text, SMS present-day WhatsApp messages, email servers, the volume of social media accounts, internet characteristics searches, CCTV, police Body Worn Gramophone record footage and financial data. It not bad not uncommon now for the portion of the unused material to rise above the number of documents actually served as evidence.
Disclosure problems arise, therefore, rephrase the practical application of the knock about of disclosure. It is the versatile application of the current disclosure rule, that we now turn to consider.