Lord Justice Gross and Lord Justice Treacy were asked to carry out a review of existing sanctions against prosecution and defence by the Lord Chief Justice, following a request by the Lord Chancellor last year. In Further review of disclosure in criminal proceedings: sanctions for disclosure failure (November 2012) the judges concluded that there are “no credible alternatives to the current sanctions”.
For the defence, the review recommends that sections 6B and 6D of the Criminal Procedure and Investigations Act 1996 (CPIA 1996) are brought into force. These require the defendant to provide an updated defence statement in a specific time period or a written statement to confirm that there are no changes to the defence statement already served (s6B); and require the defendant to notify the court and prosecution of any expert that the defence instructs with a view to his providing any expert opinion for possible use as evidence at the trial of the accused (s6D).
Alternative defence sanctions, such as a general rule to exclude evidence, greater use of wasted costs orders, expansion of contempt and greater professional sanctions were considered – but rejected in favour of enacting the existing provisions, which were noted as consistent with modern disclosure best practice and with recent case law.
No new sanctions for prosecution disclosure failures are proposed, despite the judges’ acknowledgment that concerns expressed to them about failures by the prosecution outweighed the concerns expressed about defence failures: “The courts already have a range of powers that are quite sufficient to sanction any such failures, and, if considered carefully, will allow for an appropriate balance to be struck in criminal case management and in satisfying the public interest in a fair trial,” they said.
The key recommendation is for “swift, consistent and sustained implementation” of the recommendations of Gross LJ’s Review of Disclosure in Criminal Proceedings (September 2011): “Sanctions for defence disclosure already exist within section 11 of the CPIA 1996 and through the court’s case management powers and these should used to their full effect,” concludes the review. The new procedures outlined in the September 2011 review now “need to be implemented and become familiar, so that what we have identified as best practice becomes standard practice”.
A number of ancillary recommendations are also proposed for consideration by the Criminal Procedure Rule Committee. The full review is available at www.judiciary.gov.uk.