Joint CPS/Police Disclosure Improvement Plan

undefinedShelley Gregory, PNLD Legal Adviser, provides an overview of the joint CPS / Police disclosure improvement plan as presented by Mark Paul at our Criminal Law Conference on Thursday 4th October 2018.

This year, the delegates at the annual PNLD Criminal Law Conference heard about the importance of disclosure and the joint CPS and Police disclosure improvement plan. This was provided by Mark Paul, the Head of the CPS Complex Casework Unit at West Midlands, who drew from a wealth of knowledge and experience to demonstrate the importance of disclosure and how the joint plan will improve disclosure and enable meaningful case management.

The segment began with a basic starting point taken from the Attorney General’s Guidelines: that “every person has a right to a fair trial.” This is the true expectation of all those involved in the trial and its process and of course, this includes fair disclosure.

Mark laid to rest a lot of misconceptions surrounding disclosure and, referring to the case of R v R [2015], said, “Under the CPIA, the prosecution is in the driving seat at the stage of initial disclosure, has to take a grip on the case and its disclosure requirements from the outset.”

He went on to explain how the Joint Improvement Disclosure Plan builds on 26 recommendations that flow from a 2017 report on the Mouncher case and from a report resulting from the joint inspection by Her Majesty's Inspectorate of Constabulary (HMIC) and Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI). Mark detailed the five identifiable sections of the Joint Plan:

undefined1. Capacity and Efficiency

The Disclosure Management document (DMD) will be used in prescribed categories of cases, prosecutors will seek pre-charge assurance from the police that all material has been revealed for disclosure purposes and the CPS will provide the court with sufficient information about disclosure to assist with effective case management. There will be an improvement with regards to electronic and digital evidence to allow the defence to access material electronically.

Mark noted another key improvement will be police supervision overseeing disclosure by signing the MG6E or the MG3 or the file.

A third party disclosure protocol will also be implemented on a national level.

2. Leadership

Mark spoke of how CPS disclosure leads will be appointed for all cases; that dip sampling will be conducted and training will be offered.

Each police force will appoint a disclosure expert to conduct sampling and training, and a tactical disclosure lead. A disclosure SRO will be appointed to provide governance for the tactical disclosure lead and disclosure expert.

3. Capability

The CPS will be delivering a training programme to all prosecutors and the police forces are committed to the same training level.

The National Disclosure Standard will be implemented which includes the pre-charge assurance regarding the revelation of all material to the prosecutor at that stage and quality descriptions on the schedules.

Mark indicated that good examples and good practices will be shared.

4. Partnership

Using the Service Level Agreement or otherwise, Mark stressed how important it was to ensure that material held by other forces or law enforcement agencies is revealed to the CPS; including sensitive material held by third-parties.

Bi-monthly joint disclosure forums will be held and Mark explained that the attendees will be the CPS disclosure leads, police tactical disclosure leads and police disclosure experts.

Joint Case Management Panels involving CPS managers and SIOs would be formulated for cases with complex disclosure issues.

There will be joint police/CPS reassurance regarding the handling of disclosure to the representatives of the victims.

5. Governance

Mark referred to this as taking a structured approach to examine the failure in cases and to encourage dip-sampling and the sharing of good practices.

CPS will implement Individual Quality Assessments and increase the use of Disclosure Gateway Reviews which would involve the dip-sampling of processes.

The Senior Management Team of the CPS would examine the cases with unsuccessful outcomes and ineffective trials as a result of disclosure issues.

Police will commit to dip-sampling the quality of the disclosure schedules and examine unsuccessful cases. Joint dip-sampling will also occur.

Complex issues in disclosure often arise from the examination of mobile telephones and here Mark went on to discuss data extraction. When it comes to extracting evidence from a mobile phone he identified the problem as being the uniqueness of each device which would not always be compatible or responsive to examination techniques. This is a fast paced environment in which security is a priority. The level of data extraction is split into 3 tiers; levels 1, 2 and 3 with level 1 being the least complex and level 3 being the most complex. Mark explained how it was critical that the investigator and prosecutor are aware of the limitations and boundaries of an examination of a device, including the implications of using one examination technique over another.

The focus of the DMD is the handling of the disclosure of electronic material and third party material. Mark explained how this document is a joint document when it comes to content, but is drafted and served by the CPS before the PTPH hearing. The DMD would force defence engagement and allow the prosecution to be on the front foot by narrowing the issues and encouraging robust judicial intervention. The prosecution must explain what it was/was not doing on the DMD and clarify the approach to disclosure. The DMD is now a mandatory form for RASSO cases and cases being dealt with by the Complex Case Unit received on or after 26/03/18. Mark informed the delegates how it is currently under discussion as to whether the form will be mandated in all Crown Court Cases.

Mark noted the benefits of the DMD as being how the prosecution team will have the ability to inform the defence and the courts which lines of enquiry are reasonable and which are not, which in turn will enable a “thinking approach” to disclosure; hopefully, seeing a reduction in “fishing trips” with regards to disclosure requests from the defence.

Download the article (PDF 715KB)

Download Mark's PowerPoint presentation (PDF 236KB)

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Thursday 17th October 2019