Chris Taylor

Advance Disclosure: Reflections on the Criminal Procedure and Investigations Act 1996

The Criminal Procedure and Investigations Act (CPIA) 1996 introduced a regime for advance disclosure which is at odds with the operational practices of police officers, the Crown Prosecution Service (CPS) and defence solicitors. Discretion in matters of disclosure has largely been returned to police officers with evidence of flawed supervision of the process by both police and CPS. As a consequence errors, whether inadvertent or otherwise, may not be recognised and the result is a system which presents real risks of future miscarriages of justice.

The Disclosure Sanctions Review: Another Missed Opportunity?

The reviews of sanctions for defective disclosure in criminal cases in England and Wales in 2011 and 2012 represent a squandered opportunity to redress the inequality in terms of sanctions between prosecution and defence and, in particular, to strengthen sanctions for failings in investigative and prosecutorial disclosure. The continuing structural weaknesses in the disclosure regime in England and Wales require a more robust approach to both accidental and deliberate subversion of the provisions and this is impeded by an enduring adherence to the ‘rebalancing’ agenda of the original legislation.

The Evolution of the Defence Statement

More than a decade after its initial implementation, it is clear that the regime for advance disclosure in criminal cases imposed by the Criminal Procedure and Investigations Act 1996 (CPIA) remains less than universally effective. Evidence of this fact can be found in those appeals against conviction which continue to succeed on the grounds of defective disclosure. Such cases involve the treatment of both sensitive and nonsensitive unused material and reveal persistent failings in both the operation and management of the disclosure process. One aspect of disclosure under CPIA which has received less attention, however, is the requirement for defence disclosure imposed by the Act and implemented by means of the defence statement. As with the other aspects of the CPIA disclosure regime, the implementation of defence statements was not without difficulty. From the outset, many defence practitioners routinely ignored the requirement for a defence statement or, alternatively, undermined the spirit of the legislation by submitting a statement which amounted to little more than a simple denial of the charge. In adopting such tactics, defence solicitors were initially encouraged by early judicial reluctance to employ the statutory sanction of adverse inference for non-submission or defective submission of a defence statement. In recognition of the major weaknesses inherent in the original legislation, the government made fundamental reforms to CPIA disclosure by means of the Criminal Justice Act 2003. This resulted in significant changes, not only to the duty imposed on the prosecution, but also in relation to the requirements of the defence statement. At the same time, the courts have displayed an increasing willingness to utilise the sanction of adverse inference where the defence have failed to satisfy their disclosure obligations. This Comment seeks to offer some reflection, firstly on the role of the defence statement as a mechanism for compelling defence complicity in the trial process and, secondly, on the developing case law which has served to clarify the current extent of

Entrapment: Abuse of Process: R v Lewis (Michael William) [2005] EWCA Crim 859

judge at first instance had said categorically that he did not want to pass a sentence beyond three years (at [6]) yet if the Court of Appeal made a SOPO, the order could not last for three years but a minimum of five. Does the increase in minimum duration amount to a more severe penalty? The Court of Appeal decided that it did (at [27]) and this must be correct. Unlike the notification requirements of Part 2 of the Sexual Offences Act 2003, a restraining order or SOPO is definitely a sentence and not a mere administrative ancillary issue. The order will normally prescribe restrictions on how a person conducts his or her life whereas the notification scheme does not (see the logic of the European Court of Human Rights in Ibbotson v United Kingdom (1998) 27 EHRR CD 332 and Adamson v United Kingdom (1999) 28 EHRR CD 209 where the court decided that the notification was not a ‘penalty’ and thus outside the remit of Article 7 of the European Convention on Human Rights). A SOPO is, it is submitted, obviously a penalty and accordingly the court was bound to reject the submission because of s. 11(3) of the Criminal Appeals Act 1968. This case arose from the failures of counsel and the judge to identify that the relevant law had changed between hearings. The fact that the Court of Appeal, which acknowledged that an order should have been made against the offender, had its hands tied shows the necessity of taking care over when statutes come into force. The logic of the Court of Appeal is, unfortunately, unimpeachable and the decision was inevitable. Normally with appeals we do not always know what happens thereafter. With this case, however, I can complete the history. As is probably known, SOPOs can either be granted at the time of sentence or upon the application by the police to the magistrates’ court. A month after the Court of Appeal handed down its ruling, Cleveland Police applied to the magistrates’ court at Middlesbrough for a SOPO and this was granted. An appeal was brought before the Crown Court and this was rejected. In respect of this individual case, therefore, the public were protected from ‘serious sexual harm’, but it is unfortunate that they had to rely on this application rather than it being dealt with appropriately at the time. This brings about the final lesson of this case, which is that judges should take care when they exercise their powers under the ‘slip rule’ and to depart from the default position only in exceptional circumstances and after careful consideration of the effect of their decision.

Inadvertent Disclosure and the Lawyer—Client Relationship: R v B and G [2004] EWCA Crim 1368

exercised proportionately in any given situation. Here the Court of Appeal made a very clear distinction between the action of stopping the vehicles which was lawful and the forcible removal and escort away from the scene which was not. It should be borne in mind that each case must be decided on its facts and the Court of Appeal did state that this decision does not mean that the police could never act as they did in this case (see at [54]).

What Next for Public Interest Immunity

This article examines recent developments in the law of public interest immunity (PII), a mechanism for the non-disclosure of sensitive material to the defence which continues to cause concern as a potential source of injustice. The article considers the lessons to be learned from recent decisions, most notably the London City Bond cases which saw a large number of prosecutions tainted by misuse of PII. This series of cases illustrated the ethical dilemma faced by investigators anxious to preserve covert intelligence sources, primarily informants, and the way in which the courts may be misled during PII applications in order to avoid jeopardising the prosecution. The article then considers a number of recent domestic and European decisions which have sought to refine the procedure for considering PII applications in order to evaluate their impact on the trial process and the administration of justice.

Public Interest Immunity: R v West (Ricky) [2005] EWCA Crim 517

The appellant was convicted in 2002 on two counts of possession of Class A drugs with intent to supply. The charges arose from the discovery by the police of a large quantity of drugs at the appellant’s house. In his defence, the appellant claimed that he had arranged to purchase £500 of cocaine intended solely for his own use from a supplier named ‘Kenny’. As part of the deal, Kenny had agreed to deliver the cocaine to the appellant’s house, but West was not at home when the delivery was made. On his return to the house, instead of the relatively small amount of drugs which he had ordered, he discovered a large quantity and variety of drugs including MDMA tablets, cocaine and cannabis. The amounts involved were so substantial that they were highly suggestive of an intent to supply others. At 7.30 pm on the same day, the police executed a search warrant at the appellant’s address and discovered the drugs. The appellant argued that he had been ‘set up’ by either Kenny or one of his associates, who had placed the incriminating quantity of drugs in his house and then notified the police. In order to support this defence, the appellant sought access to the information which had prompted the police to secure a warrant for the search of the premises. However, following a Crown application for public interest immunity, the trial judge ordered that the Crown need not disclose anything further on this point to the defence. In his summing-up the trial judge made the following observations (see at [4]):

Video Games: Some Pitfalls of Video Evidence

CCTV evidence is regularly employed in criminal cases, yet there has been relatively little consideration of the manner in which such evidence is collected and subsequently handled. The use of CCTV evidence raises issues of disclosure, data protection and human rights, all of which have a far-reaching impact not only on the accused but also on others who find themselves recorded by surveillance systems. In addition, much of the video evidence collected during criminal investigations comes from third parties, such as shops and commercial premises, which are outside the direct control of the police. This only serves to compound the difficulty of managing such material within the investigative and trial processes.

Video Identification under PACE Code D: R v Marcus:

In Marcus the police attempted to adapt the procedure for video identification, provided by Code D in order to increase the likelihood of a positive identification of the accused. However, this was conducted in a manner which the Court of Appeal found to be contrary to both the terms and the spirit of the provisions. The police had deliberately acted to undermine the safeguards within the identification procedure, to the extent that even the officer supervising the process had acknowledged that the result was blatantly unfair to the appellant. For this reason, those convictions which had involved the appellant’s identification by means of this procedure could not be upheld.