JOINT CPS/POLICE DISCLOSURE IMPROVEMENT PLAN

Mark PaulHead of Complex Casework Unit

Crown Prosecution Service

STRUCTURE

• Background to the national Joint police/CPS disclosure improvement plan

• The five sections of the Joint Plan• Data extraction and reasonable lines of enquiry • Disclosure Management Document

BACKGROUND

THE STARTING POINT

Attorney General’s Guidelines• Every accused person has a right to a fair trial... • A fair trial is the proper object and expectation of all

participants in the trial process. • Fair disclosure to the accused is an inseparable part

of a fair trial...

COMMON MISCONCEPTION

• Disclosure is driven by provision of a defence statement

• In fact, the prosecution, which under the CPIA is in the driving seat at the stage of initial disclosure, has to take a grip on the case and its disclosure requirements from the outset.

• R v R [2015] EWCA Crim 1941

R v R [2015] EWCA Crim 1941

• The prosecution must adopt a considered & appropriately resourced approach to initial disclosure

• Prosecution must explain what it was, and was not doing, e.g. "Disclosure Management Document" to clarify approach to disclosure. Identify and narrow issues in dispute; and require defence engagement.

• The prosecution is not required to do the impossible

MAKING IT FAIR AND MOUNCHER

• The Joint Disclosure Improvement Plan builds on the 26 recommendations in these two reports

• 2017 Report on the Mouncher case, Richard Horwell QC:

• “Disclosure problems have blighted our criminal justice system for too long and although disclosure guidelines, manuals and policy documents are necessary, it is the mindset and experience of those who do disclosure work that is paramount.”

MAKING IT FAIR AND MOUNCHER (2)

• HMIC/HMCPSI (2017) joint inspection of the police and prosecution management of disclosure: “Making it Fair”

• Recommendations of the two reports include: training and accreditation, closer liaison and better information sharing between the CPS and the police, greater accountability, the handling of third party material and the adoption and use of a better digital case management system. The reports also identified challenges involving disclosure concerning digital technology, including social media.

FIVE SECTIONS OF THE JOINT PLAN

FIVE SECTIONS

• Capacity and efficiency• Leadership • Capability• Partnership • Governance

CAPACITY AND EFFICIENCY

• Use of Disclosure Management Document in prescribed categories of cases.

• Secure agreement on how assurance on disclosure will be provided to the CPS pre-charge: populating DMD by the police, preparation of disclosure schedules pre-charge in complex cases

• CPS to provide the court with sufficient information about the disclosure exercise to enable meaningful case management

CAPACITY AND EFFICIENCY (2)

• Implementation of Evidence.com & Egress to provide defence access to multimedia evidence electronically

• Increased use of advanced digital tools such as search terms & tools

• Improved police supervision of the handling of disclosure: by signing the MG6E or MG3 or the file, the supervisor is certifying that he/she is confident that that the OIC and/or disclosure officer has understood and complied with their CPIA obligations

• Implement national third party disclosure protocol

LEADERSHIP

• Appoint CPS disclosure leads for the magistrates’ court, the Crown Court, Complex Casework and RASSO teams. Disclosure leads to conduct dip sampling, local training and offer expertise in complex cases

• Each police force will appoint a disclosure expert who will conduct sampling, training and provide expertise in complex cases; and a tactical disclosure lead at Chief Supt/Supt rank

• Each police force will appoint a disclosure SRO at Chief Officer rank to provide governance for the tactical disclosure lead and the disclosure expert

CAPABILITY

• The delivery of face to face training to all prosecutors led by Chief Crown Prosecutor or Deputy

• Delivery of face to face training to front line investigators; e-learning for other police officers and police staff involved in CJ process

• Implement the National Disclosure Standard; in particular, providing assurance by trhe police at pre-charge stage and quality of descriptions on the disclosure schedule: schedules must “contain descriptions that allow the prosecutor to understand what the item is and whether it should be disclosed”

• Sharing examples of good quality schedule endorsements

CAPABILITY (2): CPS TRAINING

• The training is based on two case studies; focus on risk around communications evidence (first case study) and intelligence material (second case study)

• Supplemented by learning from 8 real cases involving unsuccessful outcome or CTL failure• Prosecutor only considering extracts of phone • Not obtaining relevant third party material• Divergence between intelligence logs and contact sheets• Not obtaining intelligence material relating to the reliability

and credibility of the complainant • Not obtaining tracking records from SERCO• Not disclosing details of witness who can potentially provide

relevant evidence but has not made a witness statement

PARTNERSHIP

• By the use of a Service Level Agreement or otherwise, ensure that all relevant material held by other police forces and other Law Enforcement and specialist departments (e.g. DSU, ROCU) is revealed to the CPS

• Maintain bi-monthly joint disclosure forums. The attendees will be the CPS disclosure leads along with the police tactical disclosure leads, police disclosure experts for the forces and ROCU

• Implement a system of Joint Case Management Panels involving CPS managers and SIOs at Chief Inspector rank in cases where there are significant and complex disclosure issues

• Comms strategy: on a joint police/CPS basis provide reassurance on the handling of disclosure to organisations representing victims of crime (e.g. ISVAs, Victim Support)

GOVERNANCE

• CPS governance: Thematic Individual Quality Assessments (IQAs); increased use of Disclosure Gateway Reviews (DGRs); dip-sampling on processes

• CPS SMT: analysis of unsuccessful outcomes and ineffective trials due to disclosure reasons

• Police governance measures: dip-sampling of quality of schedules, analysis of unsuccessful cases

• Lessons learnt and good practice from all of the above CPS and police governance measures to be shared at the bi-monthly joint disclosure forum

• Through PTPM meetings or otherwise, implement Joint dip-sampling measures; using the same sample of cases

Data extraction and reasonable lines of enquiry

THE PROBLEM

• What we can do today we may not be able to do tomorrow

• What we cannot do today we may be able to do tomorrow

• There are thousands of mobile phones on the market and tens of millions in circulation; each one subject to regular software updates which can change how they respond to examinations.

• Digital forensic companies are constantly updating their software to keep pace with the continually changing requirements.

• Security is a priority for all of the top manufacturers and their aim is to protect the privacy of their users therefore providing a constant challenge

Levels of data extraction and examination

• Many forces refer to three different Tiers of examination and these translate to the tools and level of examination conducted

• Level 1 – Configured Logical Extraction - Digital Forensics Kiosks,

• Level 2 – Logical & Physical Extraction - Digital Forensics Hubs or Laboratories , and

• Level 3 – Specialist Extractions & Examinations -Central Digital Forensics Laboratories

REALITY CHECK

• It is not possible to obtain and examine every item of digital evidence from a device for analysis in every situation

• There are constraints to the extent and depth of an examination in the circumstances of each case.

• What is critical is ensuring that the investigator and prosecutor are aware of the opportunities presented by a device and the limitations and boundaries of an examination, including the implications of utilising one examination methodology over another.

EXAMINATION OF VICTIM’S PHONE

• The examination of mobile devices belonging to the complainant is not a requirement as a matter of course in every case.

• There will be cases where there is no requirement for the police to take the media devices of a complainant. This would include sexual offences committed opportunistically against strangers, or historic allegations where there is considered to be no prospect that the complainant’s phone will contain relevant material

EXAMINATION OF VICTIM’S PHONE (2) • However, the starting point is that it is likely to be a reasonable

line of enquiry to obtain a level 2 or 3 download in relationship cases and in cases where the parties are known to each other; particularly where the credibility of the complainant is put in issue form the outset.

• Although even in the above cases, a level 1 examination may be sufficient as a first step. Examples include cases where the parties have been known to each other for a short period, but where there is no particular reason to consider that their communications will be of importance

• It would be prudent to retain a complainant’s phone until there has been an opportunity to provide the accused with an opportunity to comment on the allegation

• Each case is fact-specific; and the decision may be assisted by asking the complainant if there is any relevant material on the phone

DISCLOSURE MANAGEMENT DOCUMENT

INTRODUCTION

• The use of the Disclosure Management Document (DMD) in Crown Court cases is a potential “game-changer”

• Prosecution to provide the court and the defence with sufficient information about the disclosure exercise to enable meaningful case management

• Currently Judges will not see the disclosure schedules

• Opportunity to put the Judge in a position to secure and maintain confidence of the court

MANDATORY FOR RASSO TEAM AND CCU

• The CPS has mandated the use of a Disclosure Management Document (DMD) for all RASSO team and Complex Casework Unit (CCU) cases received by the CPS for EIA/PCD on or after 26 March 2018

• Decision will be made shortly as to whether the DMD will be mandated in all Crown Court cases

BENEFITS OF DMD

• The use of the DMD gives investigators and prosecutors the opportunity to inform the defence and the courts which lines of enquiry are considered to be reasonable and which are not.

• This approach will help ensure the investigator and prosecutor adopt a “thinking approach” to disclosure and not see disclosure simply as a “schedule completing exercise”.

• Served before the PTPH hearing at the Crown Court, the DMD is a vitally important case management tool. It will ensure engagement by the defence, encourage robust judicial intervention (to prevent unnecessary work by the police/CPS) and reduce “fishing trips” and disclosure requests.

BENEFITS OF DMD (2)

• The DMD is a living document and should be started by allocated prosecutors at the very outset of the case, including where EIA is sought

• The DMD should be served on the defence and the court prior to the PTPH. Where possible, it should accompany the service of the case and initial disclosure, but where the schedules are not yet completed the DMD should still be served

ROLE OF POLICE

• Although the DMD is a CPS document, it will require information from investigators and disclosure officers in order to be populated.

• A structured proforma police MG3 has been devised which will prompt the officer to include the information therein. In more complex cases, the officer can populate a proforma copy of the DMD itself.

• The focus of the DMD is the handling of electronic material (including phones, social media and CCTV) and third party material. By reference to the italicised prompts in the structured MG3 or proforma DMD, the police should provide the information required to populate the DMD.

EXAMPLE DMD PARAGRAPHS

• We make specific requests for defence engagement-please suggest search tools, indicate which parts of computer to examine, do the defence wish to examine the defendant’s phone, can the police return the complainant’s phone to him/her, date by which to make representations on the DMD

EXAMPLE DMD PARAGRAPHS (2)

• In drafting the DMD, prosecutors should focus on topics where we can make specific requests for the defence to engage:

•Phone evidence •Social media•Third party material •Forensic submissions•Linked investigations •International enquiries•CCTV, cell site, ANPR

EXAMPLE DMD PARAGRAPHS (3)

• Phones - schedule of which phones have been examined and which have been seized but not examined (with reasons); manner of examination (logical or physical download); parameters of searches including dates of searches and search terms used. We can request that the defence indicate if they disagree with the parameters and ask if they wish to suggest further search terms; invite the defence to provide rationale by reference to the issues in the case (e.g. attribution of a particular phone)

• Third party organisations: by reference to each complainant, include in the DMD a schedule of each third party organisation approached; the prosecution can invite the defence to suggest other third party organisations in respect of which it is reasonable to approach, or suggest wider time parameters etc with reasons by reference to the issues in the case.

THANK YOU