The Disclosure Sanctions Review: Another Missed Opportunity?
| Author | Chris Taylor |
| DOI | 10.1350/ijep.2013.17.3.430 |
| Published date | 01 July 2013 |
| Date | 01 July 2013 |
| Subject Matter | Article |
The disclosure
sanctions review:
another missed
opportunity?
By Chris Taylor*
Senior Lecturer, Bradford University Law School
Abstract 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 dis-
closure 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.
Keywords Disclosure; Sanctions; Evidence; Miscarriages of justice
he 2012 Further Review of Disclosure in Criminal Proceedings: Sanctions for
Disclosure Failure1 was commissioned as a direct result of the earlier and
T broaderreviewofthedisclosureregimeincriminalcasesconductedby
Gross LJ. The 2011 Gross Report2 highlighted many of the enduring failings of the
present system in England and Wales and, in doing so, echoed many of the
*
Email: C.W.Taylor@bradford.ac.uk.
1
Rt Hon Lord Justice Gross and Rt Hon Lord Justice Treacy, Further Review of Disclosure in Criminal
Proceedings: Sanctions for Disclosure Failure (Judiciary of England and Wales: November 2012)
(hereafter
‘Sanctions
Review’),
available
at
2
Rt Hon Lord Justice Gross, Review of Disclosure in Criminal Proceedings (Judiciary of England and Wales:
September 2011) (hereafter ‘Gross Report’), available at
doi:10.1350/ijep.2013.17.3.430
272
(2013) 17 E&P 272–283 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
DISCLOSURE SANCTIONS REVIEW: ANOTHER MISSED OPPORTUNITY?
concerns expressed in the numerous previous examinations of disclosure under
the Criminal Procedure and Investigations Act 1996 (CPIA).3 The second, more
limited, review considered in particular the possibility of additional or
strengthened sanctions in cases of non-compliance on the part of both the
prosecution and defence. With both reviews now complete what remains clear
is that disclosure continues to be a particularly problematic aspect of the
criminal justice system.4 Appeals on the grounds of defective disclosure
continue to arise, most recently in the case of R v Joof5 and this and similar cases
serve to illustrate that there remain enduring weaknesses in the operation of the
current system under the CPIA. Despite the significant revision of the CPIA
performed by the Criminal Justice Act 20036 and the numerous supporting
3
As amended by the Criminal Justice Act 2003. For recent consideration of the comparable Scottish
provisions (Criminal Procedure (Scotland) Act 1995, s. 70A, as inserted by the Criminal Justice and
Licensing (Scotland) Act 2010), see Bain v HM Advocate [2012] HCJAC 47 and before the ECtHR in Beggs
v United Kingdom [2012] ECHR 25133/06.
4
In the UK this has been recognised since the introduction of the CPIA. See D. Calvert Smith,
‘The Prosecuting Authority’s Role: Making the Criminal Procedure and Investigations Act
work to Facilitate Fair Trials and Just Verdicts’, paper presented to the Conference on
‘Disclosure under the Criminal Procedure and Investigations Act 1996’ (British Academy of
Forensic Sciences (BAFS): London, 1999); D. Calvert Smith, ‘Getting it Right—Prosecution
Disclosure of Unused Material’ (2003) 153(7087) NLJ 1020; J. Plotnikoff and R. Woolfson,
A Fair Balance? Evaluation of the Operation of Disclosure Law (HMSO: London, 2001); Law
Society, CPIA 1996 Disclosure Provisions Survey (1999); British Academy of Forensic Sciences
and the Criminal Bar Association, Survey of the Practising Independent Bar into the Operation in
Practice of the Criminal Procedure and Investigations Act 1996 Disclosure Provisions (1999). See also
Auld LJ, Review of the Criminal Courts of England and Wales (HMSO: London, 2001); D. Ormerod,
‘Improving the Disclosure Regime’ (2003) 7 E&P 102; M. Redmayne, ‘Criminal Justice Act
2003: (1) Disclosure and its Discontents’ [2004] Crim LR 441; C. W. Taylor, ‘Advance Disclosure:
Reflections on the Criminal Procedure and Investigations Act 1996’ (2001) 40 Howard Journal of
Criminal Justice 114; H. Quirk, ‘The Significance of Culture in Criminal Procedure Reform:
Why the Revised Disclosure Scheme Cannot Work’ (2006) 10 E&P 42; Crown Prosecution
Service Inspectorate, Report on the Thematic Review of the Disclosure of Unused Material (2000);
Crown Prosecution Service Inspectorate, A Thematic Review of the Duties of Disclosure of Unused
Material Undertaken by the CPS (2008). See also J. de Grazia, Review of the Serious Fraud Office (TSO:
London, 2008).
5
[2012] EWCA Crim 1475. Other recent examples include R v Olu, Wilson and Brooks [2010] EWCA Crim
2975; Thambithurai v R [2011] EWCA Crim 946; R v Malook [2011] EWCA Crim 254; R v Wilson [2011]
EWCA Crim 16; R v Barkshire [2011] EWCA Crim 1885.
6
Most importantly the abolition of the original three-stage disclosure process based on the
subjective test for primary disclosure, which required the prosecution to disclose material
‘which in the prosecutor’s opinion might undermine the case for the prosecution against the
accused’.
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
273
DISCLOSURE SANCTIONS REVIEW: ANOTHER MISSED OPPORTUNITY?
documents which provide additional guidance on the operation of the statutory
system,7 it remains the case that the CPIA has never succeeded in providing a
workable and effective solution to the challenges posed by unused material in
criminal cases. Furthermore, many of the failings of the disclosure regime are
the result of a failure of the protagonists to engage in the spirit of the legislation
as, for both sides, the obligations imposed on them by the CPIA are
counter-intuitive as part of the adversarial system. In this way a cultural reluc-
tance on the part of investigators to disclose material which potentially
undermines the prosecution case or assists the defence8 is mirrored by a defence
view that to reveal details of their case in advance of trial is to assist the prose-
cution and, as such, may prejudice the interests of their client.
Against this background, the question of what, if any, sanctions should be
attached to defective disclosure has remained largely unexplored since the
essentially common law system, governed by the Attorney-General’s Guidelines,9
was replaced by the current statutory regime under the CPIA. Although the
events leading to the introduction of the present disclosure regime are beyond
the scope of this article, it is important to note that the issue of sanctions for
non-compliance has never been adequately addressed. This is a somewhat
7
The CPS currently lists the relevant provisions as the Criminal Procedure and Investigations Act
1996, as amended (‘CPIA’); the Code of Practice issued under s. 23 of the CPIA (‘the Code of
Practice’); Part 22 of the Criminal Procedure Rules 2011 (as from 3 October 2011) (‘the Rules’); the
Criminal Procedure and Investigations Act 1996 (Defence Disclosure Time Limits) Regulations
1997 (SI 1997 No. 684) issued under s. 12 of the CPIA (‘the Regulations’); the Criminal Procedure and
Investigations Act 1996 (Notification of Intention to Call Defence Witnesses) (Time Limits)
Regulations 2010 (SI 2010 No. 214); the Magistrates’ Courts (Criminal Procedure and Investi-
gations Act 1996) (Disclosure) Rules 1997 (SI 1997 No. 703); the Crown Court (Criminal Procedure
and Investigations Act 1996) (Disclosure) Rules 1997 (SI 1997 No. 698); the Crown Court Disclosure
Protocol on Unused Material; the Attorney-General’s Guidelines on Disclosure; and the Supple-
mentary Attorney-General’s Guidelines on Disclosure: Digitally Stored Material.
8
This is often expressed by individual police officers in terms of ‘doing the defence’s job for them’.
9
Attorney-General’s Guidelines on the Disclosure of Unused Evidence 1981 (1982) 74 Cr App R 302. The
Guidelines themselves were an attempt to resolve early uncertainty as to the precise nature of
any duty on the prosecution to disclose potentially helpful material to the defence. Cases such as
R v Bryant and Dickinson (1946) 31 Cr App R 146 and Dallison v Caffrey [1965] 1 QB 348 indicated that
change was needed and, following the Fisher Report into
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