Disclosure rule change: are we finally stopping the erosion of the burden of proof?
Are we on the brink of a forced culture change in the courts and among prosecutors? This may be so following the announced proposed change to the Criminal Procedure Rules by imposition of a prohibition upon prosecutors introducing documents or information that has or have not been first served or made available to the defence. The second prohibition is actually upon the court itself which must not allow (my emphasis) the prosecutor to introduce that information unless the defendant is allowed ‘sufficient time’ to consider it. See new proposed Rule 8.4 here for the full text.
This follows a vigorous campaign by the Criminal Law Solicitors Association and Paul Harris of the London Criminal Court Solicitors Association including the introduction of a CLSA protocol resisting the institutional injustice and scandal of pleas being demanded in the face of hopelessly inadequate disclosure. (I commend the Criminal Procedure Rule Committee chaired by Lady Justice Rafferty for listening and acting upon our concerns.)
This is an important step forward but it is not end of the effort to turn back the tide of the erosion of the burden of proof and the rights of the defence to know the case against them. But at the crucial stage before plea or venue decision the prosecution can no longer get away with poor, inadequate disclosure by reference to evidence that is not served as part of the initial information (prescribed under rule 8.3). That change must therefore offer protection in terms of the risk of loss of credit if a not guilty plea is entered based upon allegations unsupported by disclosed evidence. It also prevents prepared mitigation (based upon initial disclosure) being undermined in open court by a prosecutor adding aggravating factors not previously disclosed. The examples of poor disclosure the CLSA have demonstrated are so numerous that the principle that change was needed was incontrovertible.
The astute will immediately see where the battleground will be.
What constitutes ‘sufficient time’ for consideration of such evidence? If there are unreasonable constraints there will be no doubt remedies for that but I am confident that defence lawyers will put their duty to their client foremost and insist upon reasonable time scales according to the amount, complexity and admissibility of such evidence or whether indeed it is even possible to proceed that day without further editing or defence investigation.
After all who in the court are the main experts as to how long it would take for the defence to consider such material? I would suggest defence lawyers. Should it not be possible to progress the case that day then no doubt appropriate steps will be taken in terms of plea and they will be prepared to hold their ground on any later discussion on any loss of credit.
Where possible and consistent with our duty to our clients though, we should assist the process bearing in mind our obligation to have regard to CrimPR 1.1(1), (2)(f) and 1.2(1)(a) which together provide that the ‘overriding objective of this procedural code is that criminal cases be dealt with justly’. The defence have to accept that includes the need for all witness not to have justice unduly delayed.
In my view the issue of time is important. If disclosure is late then the prosecution pay the price of not being able to rely upon it until the defence have had sufficient time to consider it and the court now has a duty to ensure this. It the clear duty of the prosecutor to the court and justice to acknowledge the problems caused by late disclosure and join in a fair assessment of the time needed. In turn the defence will have to point to the prejudice suffered by reference to the type of freshly disclosed material in the event of suggested inadequate time being allowed.
One thing that must be stressed is that although this rule changes does reference ‘initial disclosure’ that does not remove or limit any obligation by a prosecutor to serve in good time upon the defence material later available especially before a trial. These remain covered by all the requirements of the common law, those of Article 5 and 6 of the European Convention on Human Rights and those of EU Directive 2012/13 of 22nd May, 2012, on the right to information in criminal proceedings and in particular Crim PR 14.5(2) which is a continuing duty that requires the prosecutor to ‘provide the court with all the information in the prosecutor’s possession which is material to what the court must decide’. and reinforced by CrimPR 24.13.which states that ‘any party who introduces a document in evidence, or who otherwise uses a document in presenting that party’s case, must provide a copy for each other party’ etc.
I now turn to the controversial decision in Hottak V Director of Public Prosecutions (2016) DC (Sharp LJ, Nicol J) 18/10/2016. I am unable to comment whether the allowed 2 hours for the defence to consider the grossly late (day of trial) served ABE evidence was sufficient. My main concern is that the procedure for agreeing ABE in advance was ignored and it allowed into evidence inadmissible evidence of prior character (with no bad character application) which seems to ignore practice directions and rules allowing the defence the opportunity to insist in advance upon the editing of such ABE evidence to remove inadmissible evidence.
I appreciate the court ruled that the lower court ‘could be trusted to decide the case on its merits and to exclude inadmissible material from consideration’ but why should the court have allowed itself to be placed in that position whereby it was forced to engage in such mental gymnastics? It should not reward or compound prosecution tardiness in breaching Crim PR 14.5(2) by late service or by ignoring specific rules relating to the editing of ABE material by allowing in such evidence. The benefit of the doubt should surely have tipped the decision in favour of an adjournment. It will seem the Courts will do all they can to accommodate prosecution failure even at the expense of appearing to adjudicate such matters unfairly in the eyes of many.
I hope the new rules on disclosure represents the turning of the tide against the slow erosion of the burden of proof we have seen but I anticipate the CLSA will continue to fight until the rules are even clearer at all stages of the proceedings. Is it not reasonable if you are a prosecuting authority and are late in service you should not be allowed to ambush your opponent without proper time being allowed for the defence to consider the documents? Should you not be at risk of an adjournment and costs if your error cannot be rectified in reasonable time on the day? That should always be the rule whether it is the first hearing or the last. The CLSA will continue to make such representation as that is the only way to achieve a real culture change whereby Prosecutors and Courts deal with these disclosure and service issues properly.
Robin is a member of Robin Murray and Co and former vice chair of the Criminal Law Solicitors Association. He was a joint winner of the 2015 Legal Aid Lawyer of the Year Award for fighting the legal aid cuts