Failing to disclose

Criminal bar

Lord Justice Gross and Mr Justice Treacy have been asked by the Lord Chief Justice to conduct a review of sanctions for disclosure failures in criminal trials.

They will consider whether current sanctions are adequate to secure compliance, when taken together with judicial case management powers, or whether they should be strengthened. Their review will take into consideration any impact on fair trial rights, practical enforceability and the scale of the problem.

An earlier review, ‘Disclosure in Criminal Proceedings’, was carried out by Gross LJ for the Lord Chief Justice and published last September.
It was prompted by concerns as to the operation of the disclosure regime contained in the Criminal Procedure and Investigations Act 1996, with a particular focus on the proportionality of the time and costs involved in the process.

Gross LJ concluded there was no “quick fix”, but neither was this jurisdiction “doomed to an unpalatable choice between risking miscarriages of justice or accepting unaffordable documentary excesses”.

He said it was necessary to “address the explosion in electronic communications”, which could not have been anticipated at the time the Act was passed, and suggested that full use be made of keywords and other search tools.

He advised against legislative intervention, and called for improvements to be “prosecution led or driven” with “robust” case management by the judiciary. He recommended that police investigators be give “proper training” on disclosure.
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