The judiciary has drawn up a new protocol on the disclosure of unused material in Crown Court criminal trials in England and Wales.
The protocol is designed to establish firm principles for the management of disclosure, whether by the prosecution or the defence, in order to improve the efficient delivery of justice and thereby enhance public confidence in the criminal justice system.
Sir Igor Judge, President of the Queen’s Bench Division, said:
" This protocol acknowledges the problems of over complication and delay caused by the current arrangements for disclosure. It will provide clarity and certainty and will reduce delays in the court process" ;.
" New powers under criminal justice legislation and rules give judges greater power to manage cases. Full use will be made of these powers to ensure that only relevant material is included in the disclosure process" ;.
The protocol, which is available online, was drawn up by two High Court Judges – Mr Justice Fulford and Mr Justice Openshaw and a working group representative of all involved in the Criminal Justice System. It incorporates and consolidates existing legislation and guidelines.
The Lord Chancellor, Lord Falconer, said:
" I greatly welcome this Protocol. It is an impressive document which sets out the right principles to be followed. There needs to be a culture change in how disclosure is approached, and I welcome the judiciary’s commitment to ensure disclosure is used properly, and to prevent justice being obstructed." ;
The Attorney General, Lord Goldsmith QC, said:
" When I issued my Guidelines on Disclosure, I called on all in the criminal justice system to operate the statutory procedures properly and fairly to ensure that we protect the integrity of the criminal justice system whilst at the same time ensuring that a just and fair disclosure process is not abused so that it becomes unwieldy, bureaucratic and effectively unworkable.
" This Protocol shows how the balance can be struck. It is an excellent reference point for all involved in the system, and a very useful case management tool. I welcome it, and congratulate those who helped prepare it." ;
Ken MacDonald QC, Director of Public Prosecutions, said:
"The judicial working group should be congratulated on this Protocol. It provides a clear basis for consistent and effective judicial oversight of the disclosure process, which will be of real benefit to all criminal practitioners.
"It rightly emphasises that investigators, disclosure officers and prosecutors need to be scrupulous in the discharge of their responsibilities, and its call for a complete culture change in the approach taken to defence statements by the courts and by the defence is very welcome".
"Adherence to the Protocol should ensure that the disclosure process contributes towards the fairness of criminal proceedings, rather than simply increasing their length and cost."
David Green QC, the Director of the Revenue and Customs Prosecution Office (RCPO), said:
" RCPO is as keen as the judiciary to see that disclosure obligations are properly discharged – by both the prosecution and the defence. I welcome this protocol warmly, and will ensure that RCPO lawyers play a full part in ensuring its effective operation." ;
Stephen Hockman QC, Chairman of the Bar Council, said:
" Proper disclosure provides the essential factual platform for the conduct of a criminal trial. This protocol, for which its authors deserve congratulation, will help not only to ensure the sound construction of that platform in every case, but also to achieve another objective now recognised as essential, namely that cases be conducted with the maximum expedition and efficiency. The Bar will, as in the past, lend its skills and experience to the task of implementation." ;
Rules on disclosure are often misunderstood, although proper disclosure, by both the prosecution and the defence, can be critical to a fair trial taking place. The protocol creates an overarching principle, namely that unused prosecution material will fall to be disclosed if, and only if, it satisfies the test for disclosure applicable to the proceedings. Judges will actively oversee the discharge of disclosure obligations, whether by the prosecution or the defence. The protocol covers issues relating to defence statements, applications for specific disclosure, PII hearings and the court’s approach to potentially relevant material held by a third party.
The protocol recognises the danger that the trial process can become overburdened or diverted by erroneous and inappropriate disclosure, Judges are therefore given judges a central role in ensuring that the overarching principle is achieved.
Notes for Editors
The protocol will be available on the HM Courts Service website.
Ends
