Government reviewer hails ‘enormous benefits’ of early disclosure for criminal justice

Imposing sanctions on prosecutors who miss deadlines and defendants who fail to engage is among options for reform floated in a preliminary review of disclosure in the criminal justice system. A ‘bespoke solution’ may also be needed for the magistrates’ courts, where statutory disclosure requirements are frequently breached.

So says Jonathan Fisher KC, who was appointed by the home secretary last year to review the challenges involved in investigating offences that involve large volumes of digital material.

In his preliminary findings, Fisher concludes that a ‘perfect solution does not exist’ - noting that the average volume of printed material in a Serious Fraud Office case would ‘stack considerably higher than the Shard’. But he adds that ‘far greater attention’ needs to be given to disclosure at an earlier stage, amid consensus that, post-charge in particular, this has the ‘potential to produce enormous benefits’ for case progression.  

‘One option worth exploring is the utilisation of existing hearings, such as the plea and trial preparation hearing, to agree and resolve the prosecution’s approach to disclosure,’ he says. ‘Another possibility is whether in a case where there are significant unused material issues, either due to volume or complexity, to consider if there is scope for a prosecutor or the defence to seek an early court hearing to specifically consider disclosure issues shortly after committal or transfer to the Crown court.

‘The hearing, which could be in person or held remotely, would deal exclusively with disclosure matters and might precede the service of the full defence case statement, with the significant advantage of judicial oversight or direction of the process from that early point.’

Other matters under consideration by Fisher include the economies of scale that could be achieved through the use of artificial intelligence, and better training.

Fisher acknowledges that there continue to be instances where non-disclosure of relevant material has led to miscarriages of justice. He cites the Andrew Malkinson case and the likely role of disclosure issues in the Post Office Horizon convictions. He intends to submit his formal recommendations to the home secretary this summer.

One solicitor unimpressed by Fisher's preliminary findings is  David Corker, consultant at Corker Binning. 'Mr Fisher is signalling [that] he will support the status quo,,' said Corker. 'He adopts the prosecutor’s conventional wisdom; that deficiencies in the regime i.e. the long and sorry history of either miscarriages of justice or the collapse of prosecutions owing to non-disclosure, is attributable to the prosecutorial poor application of the statutory requirements. The fault is not with the underlying principles.

Corker added: 'Mr Fisher thus prefers to shore up the regime instead of advocating sweeping reform. his most important interim finding is that more should be done to pressure the defence to disclose its case at the start of a prosecution; his portmanteau is “early engagement”. Despite this not being an instance of better application of existing arrangements, he places great faith in judges convening novel and discrete disclosure hearings at the start of the case and so being able to resolve the issues. He desires that it is not the prosecutor but the judiciary who become 'central to making any system work'. His faith in the judiciary is touching but misplaced.'

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