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Inspectors tell CPS to ‘significantly improve’ disclosure

By Monidipa Fouzder >>

(17 February 2022)

The Crown Prosecution Service has been told to ‘significantly improve’ compliance with its disclosure obligations in an inspectorate report – which reveals that an assault trial could have potentially been adjourned because initial disclosure was completed only four days before it was due to begin.

Publishing the findings of a ‘baseline assessment’ of CPS London South today, lead inspector Gavin Hernandez said the prosecuting area worked hard during the pandemic to ensure core functions such as service of prosecution papers continued to be delivered in a timely manner. However, improvements were needed to ensure full compliance with disclosing unused material.

Today’s report explains that police have duties to retain, record and reveal material to the CPS, which must decide what unused material meets the test for disclosure to the defence. The test is whether the unused material is something ‘which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused’.

Inspectors found that 33.3% of cases they assessed in the magistrates’ and Crown courts did not meet the required standard for initial disclosure (all non-sensitive unused material), a figure that rises to 36.8% for rape and serious sexual assault cases. Compliance with continuous disclosure obligations (additional non-sensitive unused material after the statement setting out the defendant’s case is served) was better. However, inspectors said the full set of results showed the area needs to ‘significantly improve’ compliance.

In a case involving assault and possession of an offensive weapon, the report said: ‘At the first hearing the CPS was ordered to complete initial disclosure by 18 August 2020. However, the CPS did so on 23 April 2021, four days in advance of the trial. This would have potentially enabled the defence to seek an adjournment of the trial given the statutory entitlement to serve a defence statement within 14 days of the completion of initial disclosure.

‘In contrast to this, in a case involving two youth defendants who were both charged with offences of assault occasioning actual bodily harm and possession of a bladed article – which had been authorised by CPS Direct – the area reviewing lawyer proactively reviewed the case in a very timely manner. They challenged the police on an inadequate schedule of unused material, obtained a correct schedule and then correctly completed initial disclosure within 10 days of the first remand hearing and in advance of the first youth court hearing. This was exemplary work.’

Commenting on today’s report, a CPS spokesperson said: ‘Despite the pressures of growing caseloads, we are developing how we prepare, review and progress our material in order to get disclosure right. We have delivered training to our prosecutors, encouraged early discussions on disclosure issues and introduced close monitoring to track our performance.

(Courtesy: The Law Society Gazette)