We are excited to announce the upcoming release of Narita Bahra KC of 33 Chancery Lane and Don Ramble of 5 St. Andrew’s Hill latest book ‘Tackling Disclosure in The Criminal Courts. A Practitioner’s Guide, Second Edition’, available from November, a must for all Solicitors and Barristers.
“This is a simply invaluable book for criminal practitioners, most particularly in light of the rapidly changing disclosure landscape in England and Wales. When I was a pupil barrister 45 years ago, disclosure routinely consisted of no more than a few handwritten statements, usually from extraneous witnesses, provided at the beginning of a trial. In a similar vein, the leading authorities establishing the considerable prosecutorial responsibilities in this field and Part 1 of the Criminal Procedure and Investigations Act 1996, which provides the governing statutory regime, are from an age that had not experienced or anticipated the full impact of the explosion of digital material, now measured glibly in terabytes. Our present disclosure arrangements were conceived, therefore, in a world when the prosecution could be expected to have a real understanding of the materials in their possession, even if that sometimes involved a considerable amount of work in truly complicated cases. Now, in even the most routine prosecution, that is usually a wholly unrealistic expectation.
It is my view that this aspect of criminal proceedings needs urgent revisiting. Although the investigators will have seized the digital devices and in that sense bear a particular duty based on their access to them, otherwise I consider that the responsibility for interrogating any digital material should be couched explicitly as being shared jointly by the prosecution and the defence. If the prosecution are on notice of relevant lines of enquiry potentially helpful to the defendant that they can reasonably pursue, that should occur. I recognise that to a very real extent there has been significant movement in identifying the responsibilities of the accused in this context, as reflected in the numerous sources of guidance that have recently been issued, such as the July 2022 Attorney-General’s Guidelines. But notwithstanding these changes, the prosecution is too frequently close to being overwhelmed by the large volume of digital material they have either seized or to which they have access on the cloud. With worrying frequency prosecutions are abandoned or convictions are overturned on appeal because of the extent of the difficulties, or perceived prosecutorial failings, in this process.
The reality is that only a small fraction of the available digital material will, or can be, considered in advance of a trial. This needs to be faced. Criminal trials, having been prepared sensibly, should provide finality. If the defence have failed to assist sufficiently in the interrogation of the digital information in advance of the trial, the later discovery of potentially useful material should by no means necessarily lead to the conviction being overturned. As with the approach to all “fresh evidence” on which an appellant seeks to rely before the Court of Appeal, there should be a careful enquiry as to why the defendant had failed to alert the prosecution authorities to the possible existence of the particular exculpatory material, which had not been sought prior to trial.
It is to be stressed that the defendant is expected to secure all the relevant witnesses in advance of his or her trial. The same, in my view, should apply to any digital material, regardless of the fact that access to it may be – certainly in the first instance – via the prosecution authorities. If the responsibility should correctly be framed as being jointly held by the prosecution and the defence, I suspect there will be a greater need for judicial involvement, from an early stage in the case, to ensure that both parties – equipped the necessary tools – have discharged their obligations in this regard.
It is my belief, therefore, that the concept of “disclosure”, certainly in this digital context, is to a significant extent outdated, and the process should be recognised as constituting something else, more akin to concurrent lines of enquiry (with the prosecution always needing to investigate realistic avenues of defence of which they are on notice or should sensibly anticipate). If the defendant fails to participate in this exercise, there may well be consequences if he or she later complains that there has been material non-disclosure.
But these are merely the ruminations of an old judge! In the meantime, operating as we must within the present framework, this is the up-to-date edition of an invaluable guide which will give practitioners the best chance of navigating these uncertain seas, avoiding the squalls, submerged rocks and whirlpools that await the unalert. The authors are to be commended for an accessible, well written, scrupulously researched and finely balanced resource.”
Lord Justice Fulford
(Sitting in Retirement)
16 August 2023”
Talking about the book the authors noted, “this book is intended to provide practical guidance when considering issues of disclosure in criminal proceedings. It is aimed at both prosecution and defence practitioners. Disclosure issues can arise in any criminal case and in many guises, from the prosecution seeking an adverse inference from the defendant’s failure to set out his case in the defence statement, to the defence applying for proceedings to be stayed as an abuse of process due to disclosure failings by the prosecution.
In some of the chapters, we have included checklists designed to help the reader ask the right questions when considering particular disclosure topics and have also included a number of precedents, pro-formas and sample documents to assist.
In this new edition, we have focused and provided more guidance in relation to the best approach to tackling the ever increasing quantities of digital material.
We also consider the impact of the revised Attorney General’s Guidelines on Disclosure, which came into effect on 25 July 2022 and, in the context of disclosure in cases involving expert evidence, the Criminal Practice Directions 2023, which came into force on 29 May 2023.
As requested by our readers, we also include some tips on how to ensure payment for the vital task of reviewing unused material.”
Coming out this November and available to purchase at Law Brief Publishing – http://www.lawbriefpublishing.com/product/disclosureinthecriminalcourts/
Further updates on the books upcoming release coming shortly.