The Criminal Procedure and Investigations Bill: For Better or for Worse?
| DOI | https://doi.org/10.1108/eb025783 |
| Published date | 01 January 1997 |
| Date | 01 January 1997 |
| Pages | 234-235 |
| Author | Sheilagh Davies |
| Subject Matter | Accounting & finance |
Journal of Financial Crime — Vol. 4 No. 3 — Investigations
The Criminal Procedure and Investigations
Bill:
For
Better or for Worse?
Sheilagh Davies
The Criminal Justice Act 1987 (CJA 1987) hailed a
new era. Obligations were imposed on prosecution
and defence to collaborate at an early stage to iden-
tify issues, serve documents, prepare schedules and
deal with points of law. The preparatory hearing
was introduced. The intention was better case
management, to smooth the path towards the
presentation of trial and make the system generally
more efficient. As an idea it was a good one, but
the operation was at variance with what Parliament
intended. The Act made provision that the party
which lost on a particular point at a preparatory
hearing could take that point on appeal. This
caused a rush of applications to the Court of
Appeal with counsel doubtless feeling that they
had to take the point so as not to be disadvantaged
later. In a number of decisions the Court ruled
that the legal arguments did not form part of the
preparatory hearing. Arguably the Court of Appeal
was looking for clarification but the reality is that
there have been a number of inconsistent decisions
that have defeated Parliament's intention for
smoother case management. If the Court of Appeal
was looking for an administrative way of lowering
the number of appeals they had to force the ball
back into the court of the Executive. Let us exam-
ine whether the Criminal Procedure and Investiga-
tions Bill has assisted the position or not.
The main provisions of the Bill relate to prose-
cution and defence disclosure and the responsibili-
ties of the police with regard to material for the
purposes of prosecution disclosure. The proposed
clauses were significantly amended by Standing
Committee B and the author deals with them in
that amended form. Those provisions of the Bill
which affect serious fraud trials are contained
within Sch. 2. This proposes to amend the CJA
1987 and deals primarily with preparatory hearings.
Disclosure remains a thorny subject giving rise
to disparate views. It is addressed in the Bill in a
way that is giving defence lawyers cause for con-
cern. While there remains an obligation on the
prosecution to disclose 'material of
all
kinds' which
specifically includes both information and objects
of all descriptions, the obligation only relates to
that material which in the opinion of the prose-
cutor might undermine the case for the prosecu-
tion against the accused. It is argued that this is a
retrograde step, representing a distinct shift away
from the disclosure guidelines achieved after a
number of miscarriages of justice. It is a subjective
test that demands not only an objectivity of the
highest degree but an insight the prosecutor,
through no fault of his own may not have. How
can he necessarily know what material will assist
the defence in their task to undermine the prose-
cution case? Once there has been primary dis-
closure under cl. 3, cl. 5 goes on to provide that
where the section applies the defence must give a
defence statement to the prosecutor and, if appro-
priate, to the court setting out in general terms the
nature of the defence, the matters upon which he
takes issue with the prosecution and in relation to
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