On 26 April 2012, the Lord Chief Justice announced that Lord Justice Gross and Mr Justice Treacy will be heading a review of sanctions for disclosure failures in criminal cases, and considering whether there are options for strengthening them. This follows on the heels of a September 2011 review into criminal disclosure in general.
The surge in electronic communication over the past decade in particular has had an effect on the way in which criminal trials are conducted – comments on cases are ‘Tweeted’, blogs appear online about a judgment before the decision itself and the occasional juror takes it upon themselves to conduct a little extraneous research on Facebook. This increasing reliance upon the World Wide Web is particularly pertinent in serious fraud cases: the sheer volume of electronic information of relevance (countless numbers of emails between those involved, for example, spanning many years) can be an incredible burden when it comes to disclosure. Little wonder, then, that the September review highlighted serious fraud cases as at the heart of the disclosure question, and the Lord Chancellor cited the “exponential growth” of material in criminal investigations, particularly electronic material, as “a matter of increasing concern”.
So what sanctions exist at the moment for failure on the part of the prosecution to disclose material within a reasonable timeframe? The Criminal Procedure and Investigations Act 1996 (CPIA) states at section 10(2) that failure of the prosecution to disclose material within the relevant period does not constitute grounds for staying the proceedings for abuse of process unless, under section 10(3), the accused is denied a fair trial. The court’s case management powers arise from part 3 of the Criminal Procedure Rules, where under part 3.5, it may address non-compliance with its directions by varying the date of a hearing, making a costs order or imposing any other sanction it deems appropriate.
It is difficult to see to what extent increased sanctions might assist, indeed they may even be counter-productive. Whilst the September 2011 review looked for some guidance at the civil system (governed by the Civil Procedure Rules part 31), it rightly notes that the civil system is able to benefit from sanctions that cannot be implemented in the criminal sphere. The recalcitrant party in a civil case is at risk of having his case struck out, or of summary judgment. In the criminal system, such an approach could lead to a number of miscarriages of justice. Furthermore, any review must take into account the practical problems of disclosure, particularly of vast swathes of electronic information. The September review welcomes the CPS’ suggestion of a “disclosure management document” to pinpoint the prosecution’s intentions with regards to, for example, which search terms it applies. It is surely equally as important that, at the earliest stage, careful consideration must be undertaken as to the most efficient electronic system for analysing the information, in order to ensure that the systems in place are able to match up to the high standards expected.
The issues surrounding disclosure when confronted with large volumes of material are complex. Gross LJ admits that there is “no instant solution” and that improvement will be “incremental”. However, the upcoming review is a welcome next step. Now that the issues begin to be fully grappled with, there can be hope that more serious fraud cases can be brought to a smooth and just conclusion.
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