Legal perspectives on disclosure and the Criminal Procedure Rules 2015 In this feature | initial disclosure | review of efficiency in criminal proceedings | better case management Duties of initial disclosure in the magistrates court causes much confusion, not least among local authorities. Lee Reynolds clarifies what needs to be disclosed and when Better case management A The initial prosecution case papers must enable proper consideration of plea, venue and/or sentence robust and reliable disclosure regime is the bedrock of asuccessful prosecution. In my experience, however, the approach to this fundamental concept adopted bylocal authorities throughout England and Wales is remarkably inconsistent. Disclosure is governed by the Criminal Procedure Rules 2015 (as amended), which implement a number of suggestions made by SirBrian Leveson in his Review of Efficiency in Criminal Proceedings report. The purpose of the review was to devise a way to streamline the disposal of criminal cases and so reduce the cost of proceedings. Recommendations in the report led to the introduction of a system widely known as better case management (BCM), to improve the way cases are processed through the criminal justice system. There is a common misconception among local authorities that they have to serve a complete case at or before the first hearing in the magistrates court. In my discussions with several councils, I have found that many supply a copy of the full prosecution papers at the same time as they serve the defendant with the court summons. The legal requirement in respect of disclosure Part 8 of The Criminal Procedure Rules (CrimPR) is that the prosecution is only required to serve the initial details of the prosecution case on both the court and the defence as soon as practicable, which must, however, be no later than the beginning of the day of the first hearing. Content of initial details 4 One of the requirements that might surprise you is the service of a case summary as part of the initial disclosure. In my experience, it is extremely rare for a local authority to serve a case summary on the defence and court at this stage, even though they are under a legal duty to do so. The case summary need not be extensive, but it should set out the alleged circumstances of the offence and the account given by the defendant in interview. Some regulatory offences can be obscure or complex, so in those circumstances I would advise including in the summary a brief outline of the applicable law, sentencing guidelines (if any) and maximum penalties available. In the majority of cases, the investigating officer will already have compiled a detailed infringement report or similar document this can be redacted and used to form the S tagES OF basis of the summary. Such a document ought to be DISCLOSuRE drafted by trading standards and amended, if required, by the legal department. As set out in Part 8 of the CrimPR, you should only disclose the statements and exhibits that are used as material in makingthe decision on plea, venue for trial and/or sentence at the initialdisclosure stage. In most cases, this will include the statements ofthe lead officer and the victim including any victim impact and expert reports. Try to consider the case objectively, to assess what you should include so that the court and defence can gain an understanding of the prosecution case. If in doubt about whether to disclose a particular document, it is better to err on the side of caution and include it; however, it is not necessary to serve all statements, particularly those of a procedural or continuity nature. A robust and reliable disclosure regime is the bedrock of a successful prosecution Court appearances If in doubt about whether to disclose a particular document, it is better to err on the side of caution and include it If the defendant enters a plea of not guilty at the first hearing at the magistrates court, and the matter is proceeding to summary trial, the court will set directions that will include the service of the complete prosecution case. If the matter is committed for trial at the crown court, there is a relatively new procedure, with a plea and trial preparation hearing (PTPH) replacing the old plea and case-management hearing. The PTPH takes place within 28 days of the first hearing in the magistrates court. The only additional documentation that must be served before this is the indictment; however, I would advise local authorities to also give the crown court copies of the papers that have been served in the magistrates court. In my experience, the lower courts rarely forward the papers, because the majority of CPS cases are now served digitally. At the PTPH hearing, the defendant is expected to enter a plea. If this is not guilty, then there is no requirement on the prosecution to serve a full and paginated set of papers. proceedings leading to trial In the event of a not guilty plea, the court will actively case manage the proceedings leading to trial. There are now four formal stages of disclosure with which the prosecution and defence must comply. At the PTPH, the court will set the timetable for compliance for each of the stages and the dates are calculated from the first day that the case was listed in the magistrates court. In short, the initial prosecution case papers must enable proper consideration of plea, venue and/or sentence. A carefully drafted summary is essential, along with the crucial statements and exhibits. Incrown court cases, the prosecution will be given a further 10 weeks from the initial hearing to provide full case papers. Local authorities should take cautious advantage of these relatively new rules. I say cautious because, in large or complex cases, it can be difficult to ensure the important evidence that deals with continuity and procedural issues is available within 10 weeks of the initial hearing. I would, however, advise that trading standards officers discuss the requirements of the rules with their legal department, to agree the extent to which cases are prepared before the first hearing. This ought to save unnecessary time and costs. There is a common misconception among local authorities that they are required to serve a complete case at or before the first hearing tHE CRImINaL pROCEDuRaL RuLES, paRt 8.3 Helpfully, part 8.3 of CrimpR sets out what is meant by initial details of the prosecution case. It states that the prosecution must serve: (i) A summary of the circumstances of the offence (ii) Any account given by the defendant in interview, whether contained in that summary or in another document (iii) Any written witness statement or exhibit that the prosecutor then has available and considers material to plea, to the allocation of the case for trial, or to sentence (iv) The defendants criminal record, if any (v) Any available statement of the effect of the offence on a victim, a victims family or others Credits Lee Reynolds is a barrister at Apex Chambers To share this page, in the toolbar click on You might also like Perfect recall November 2017 and Gough Square Chambers. Images: istock.com / Sean_Kuma 4 S tagES OF DISCLOSuRE 1: The prosecution should serve a full, paginated copy of the case papers, along with any applications relating to bad character, hearsay or special measures. This will usually be within 10 weeks from the date of the first hearing in the magistrates court 2: The defence must provide a defence statement, expert evidence and respond to any applications made by the prosecution. This will normally be 28 days after the prosecution has complied with Stage 1 3: The prosecution has to provide any further disclosure that was either not available for Stage 1 or has arisen following service of the defence statement. This can be either 14 or 28 days after Stage 2 4: This stage is largely to deal with any complaint about non-disclosure. This will usually be either 14 or 28 days after Stage 3