Disclosure Manual: Chapter 29 - Large Scale Case Administration

Introduction

Large-scale cases create difficulties for the prosecutor in terms of the volume of both the evidence and unused material. Factors that contribute to difficulties may include the length of the investigation, the number of defendants, the number of witnesses, applying differential disclosure, dealing with material from joint or linked investigations, historical material and accessing or obtaining third party material, particularly from foreign jurisdictions.

Under the CPS regime for handling disclosure in serious and complex cases (which has been in place since 1 March 2013) a Prosecution Strategy Document and a Disclosure Management Document are mandatory in all serious and complex cases. Templates for the documents referred to in this section can be found on the disclosure pages of the CPS Operational guidance and differ from the Disclosure Management Document adapted for use in volume Crown Court cases.

Large-scale cases require project management techniques. Effective large-scale case management will demand discipline from investigator and prosecutor alike to ensure that plans, timescales, milestones, and risk assessments are identified, adopted, and monitored. It is essential that effective quality assurance be conducted in large cases.

The AG’s Guidelines specifically state that for large and complex investigations, it is recognised that the preparation of schedules continues beyond the point of charge due to the quantity and complexity of data to be analysed, and that it may not be feasible or necessary to provide the schedules at the same time that a charging decision is sought.

Further, in large or complex cases, it is accepted that full initial disclosure may not be capable of being served prior to the PTPH. In such cases, best practice is to adopt a phased approach to disclosure, ensuring that robust judicial case management during Further Case Management Hearings, and in line with the Criminal Procedure Rules and Criminal Practice Directions, manages the on-going disclosure process. Utilising an initial DMD at the PTPH which outlines the intended plan for onwards staged disclosure of remaining materials and associated schedules, can be an effective mechanism for this approach and is to be adopted where possible.

In applying the guidance in this chapter, investigators and prosecutors should be aware of the terms of the Lord Chief Justice's Protocol (the Protocol) on the handling of heavy fraud and other complex criminal cases and the Better Case Management flowchart for serious cases.

Early issues

Early contact between the reviewing prosecutor and the investigator and the early appointment of the prosecution advocate is vital in large-scale cases. Potential disclosure issues should be aired and actioned early and not left until all evidence is collected.

Where there is more than one investigating agency, multi-agency agreements (some local templates are available) can be used to record the strategy for the identification, retention, recording and revelation of material relevant to the investigation. The identification, role parameters and reporting channels of the lead disclosure officer and any deputy disclosure officer must be clearly established.

Investigators and prosecutors should consider whether all reasonable lines of enquiry have been pursued. Likely sources of evidence and unused material should be explored and decisions made as to how this material should be obtained. Where material is in possession of third parties, decisions will need to be made as to how to access this material. Where the material is outside of the jurisdiction, a letter of request may be needed (see further guidance in Chapter 35). In large complex cases there needs to be early engagement between investigators, disclosure officers and prosecutors to set the strategy from the outset. Prosecutors and investigators should agree a disclosure strategy either within the PSD or as a standalone document.

In particular, the extent and impact of sensitive material should be addressed from the very outset of a case. Where a third party has, or is believed to have, relevant sensitive material, contact should be made to ascertain the third party's stance on how the material may be inspected and handled.

The prosecutor, with the Unit Head, should consider whether his or her unit will require extra resources to adequately handle the case, and if so, seek senior management approval for additional assistance to be made available.

Better case management principles, the Attorney General’s Guidelines and the court in R v R and Others [2015] EWCA 1941 refer to the obligation on the prosecution to encourage dialogue and prompt engagement with the defence.

Prosecutors should be alive to the potential value that early defence engagement can bring to a case. Annex B of the AG’s Guidelines outlines the circumstances in which pre-charge engagement (PCE) can be initiated. PCE is likely to be of most benefit in serious and complex cases that involve numerous reasonable lines of enquiry, though it can be used in any case where the parties agree that it may be of assistance. Potential benefits include:

• Suspects who maintain their innocence will be aided by early identification of lines of inquiry which may lead to evidence or material that points away from the suspect or points towards another suspect.
• Pre-charge engagement can help inform a prosecutor’s charging decision. It might avoid a case being charged that would otherwise be stopped later in proceedings when further information becomes available.
• The issues in dispute may be narrowed, so that unnecessary enquiries are not pursued, and if a case is charged and proceeds to trial, it can be managed more efficiently.
• Early resolution of a case may reduce anxiety and uncertainty for suspects and complainants.
• The cost of the matter to the criminal justice system may be reduced, including potentially avoiding or mitigating the cost of criminal proceedings.

Systems and administration

The prosecutor must ensure that there is a comprehensive record of disclosure decisions recorded accurately, clearly, and concisely on the Disclosure Record Sheet, along with a record of what has been disclosed to the defence, and when. An appropriately edited (for sensitive material) Disclosure Record Sheet might form the basis of a disclosure index to be served on the court and defence when proceedings reach trial if there are issues over what was served, and when.

It is particularly important in large-scale cases that systems are in place to:

• record the receipt of papers (and other material) and service of them on the court and defence;
• to record and action court orders or other deadlines and monitor compliance; and
• to deal with correspondence and to carry forward actions where a response cannot be made immediately.

It is essential that the file record shows what was sent, when, and to whom in respect of all evidence and unused material disclosed. In large-scale cases, it is particularly important that all successive schedule submissions follow on from the last in terms of consecutive numbering of individual items. Where this does not occur, the prosecutor should raise the matter at an early stage and ensure that the lead disclosure officer puts this system in place.

Where confiscation proceedings are in progress or envisaged, the lead disclosure officer must ensure that material gathered in the course of those investigations be incorporated into the appropriate schedule. Where it is apparent this has not occurred, the prosecutor should raise this with the disclosure officer and insist on amended schedules. The prosecutor should ensure that copies of non-sensitive material are clearly and accurately indexed to the schedules.

Large-scale cases will often necessitate service of successive tranches of disclosure upon the defence, both when the disclosure duty is triggered under the CPIA and as part of the duty of continuing review. The use and disclosure of the disclosure management document will assist the defence and the court to understand the rationale for such an approach and reduce the risk of challenge.

The prosecutor should ensure that notes of conferences and actions arising therefrom are kept, action-dated and monitored to completion. A clear note should be made of all court orders and any other actions required. These should be action-dated and brought to the attention of all relevant parties promptly after each hearing.

The prosecutor must be alert to the risks of unused material being provided and not recorded at court, either by the prosecution advocate or by disclosure counsel. It is recognised that as issues arise in a trial, disclosure of unused material may have to be made but prosecution advocates should ensure that it is done methodically, and properly recorded on the schedules and record sheet. Instructions to the prosecution advocate and/or disclosure counsel should clearly set out what is expected in respect of the service of unused material and how this will be achieved. Where material is served at court, a record must be made on the Disclosure Record Sheet.

Court liaison

A clear disclosure strategy should assist the prosecution to secure and maintain the confidence of the court as to the proper discharge of its disclosure obligations for non-sensitive material. The prosecution should, at the point of primary disclosure, provide to the defence and court a summary of the disclosure processes adopted, including a clear description of, and rationale for, the parameters employed in the identification of undermining or assisting material. It is essential that the content of this Disclosure Management Document properly reflects the needs of each individual case.

At the outset the judge will set a timetable for dealing with disclosure issues, including a date by which all defence applications for specific disclosure must be made. The defence should provide a specific, manageable, and realistic list of the documents they are interested in and from what source. The prosecution should only disclose those documents meeting the disclosure test.

If the bona fides of the investigation are called into question, consideration should be given to calling the officer in charge of the case to the early case management hearing to give evidence on oath covering the contents of the disclosure schedules.

Thorough, well prepared case management hearings will save court time and costs overall and a trial date should be sought at that stage.

Handover procedures

During the life of a case there may be successive investigators, disclosure officers, prosecutors, and advocates. Incoming personnel should have the opportunity to acquaint themselves with the case prior to any discussion and handover, in order that they can make sensible decisions regarding disclosure with a firm grasp of the essence of the case. A full record of the details of all handovers must be recorded on the file.

Disclosure Counsel

General guidance

Best practice dictates that generally it should be the lawyer in a case who examines and makes decisions on unused material. However, in large cases it may be appropriate to instruct counsel to carry out this task (or a proportion of it) either alone or in conjunction with the lawyer in the case. Counsel is instructed to advise the prosecutor and may be instructed to endorse the schedules as to his assessment of disclosure decisions.

Such a decision will usually be taken where the volume or complexity of the material is such that it is inappropriate or impractical for the prosecutor to carry out the task or where time constraints render it so. In addition, such a course may be considered where counsel has a particular degree of expertise, for example because of the specialised nature of the material or because of knowledge of a linked case.

In appropriate cases, a decision to appoint disclosure counsel may be made at the outset of a case with a view not only to assessing unused material but also deciding which items should constitute the evidence relied upon. Counsel instructed may be the junior for the whole case or may be instructed solely to deal with the question of disclosure. Irrespective of this, in complex cases, they should be instructed for the duration of the case. Exceptionally large cases may require a team of disclosure counsel.

Case management

Whatever role or responsibility is given to disclosure counsel, the ultimate responsibility for all aspects of the case remains with the reviewing prosecutor. It is essential to set out clearly in instructions:

• the parameters of disclosure counsel's role;
• the tasks;
• the level of autonomy;
• the type of decisions that counsel can take;
• the type of decisions that have to be referred to the reviewing prosecutor; and
• the role of disclosure counsel in any subsequent trial.

The rationale for the appointment, the extent of the appointment and the scope of counsel's duties should be recorded in counsel's brief and agreed with trial counsel. Standard instructions on disclosure can be found within the CPSOperational guidance. A copy of the disclosure management document should also accompany the brief.

Selection of Counsel

Only suitably experienced, competent, and capable counsel should be appointed who are familiar with the CPIA, its Code of Practice, the AG's Guidelines, and this manual.

A conference will be a good opportunity to introduce counsel to the SIO and disclosure officer, with whom counsel will have to liaise. Instructions should refer counsel specifically to the CPIA, Code of Practice, the Guidelines, and this manual.

Written advice on disclosure will be required (if necessary, adopting and incorporating the endorsed schedules) and arrangements should be made for interim progress reports from counsel, orally or in writing, and at such intervals as the reviewing prosecutor considers appropriate.

Counsel should be instructed to maintain a full, written audit trail of the work he or she has carried out. Instructions should also make clear the responsibility of trial or disclosure counsel to keep the Disclosure Record Sheet updated during the trial.

It should be made clear in the instructions that counsel will be expected to be disclosure counsel in any forthcoming trial. In the normal course it would be very exceptional reasons that would prevent counsel's attendance at the trial, and accordingly counsel should make the necessary arrangements to make him or herself available as early as possible.