The ongoing reviews into Disclosure turned their attention to the Magistrates’ Court with the release last week of the Magistrates’ Court Disclosure Review. It’s generally hard to summon up much enthusiasm for a lot of the stuff , but it is actually worth a read. It’s good to see a bit more of a realistic attitude coming through – there is an acceptance that the process starts with the CPS and they are responsible for most of the failings and some understanding that making directions in the criminal courts is pretty much whistling in the wind. Giving directions to the CPS is like telling my cat to tapdance – you may get a filthy look, you may get ignored, but you won’t be getting any disclosure and/or tapdancing cats.
So it’s worth a read. Not just because disclosure is fun, but there is also, buried at page 32, a small nugget of magical joy.
What do you do when the CPS haven’t done disclosure by the day of trial? Normally I just sigh wearily and ask for an adjournment, or curl up on the floor of the Court and weep at the futility of it all. There is, however, another way forward, as set out at para 146:
146. The question has been raised as to what should happen on the day of trial if the
prosecution has not complied with its disclosure obligations.
147. The first point for consideration is whether the Crown has indeed failed to comply.
In some cases it is reported that there are late section 8 CPIA applications and that the
fault, if any, therefore lies with the defence. However if the failure is clearly at the door
of the prosecution, then it is the prosecution who must make the application for an
adjournment to comply with its obligations.
148. If the application for an adjournment is refused, the consequence must be that the
prosecution should offer no evidence, in line with the guidance set out in Chapter 1 of
the CPS/ACPO Disclosure Manual. It would be against the professional code of conduct
for prosecutors to proceed to trial having not complied with their statutory disclosure
obligations. Generally an abuse of process argument is neither necessary nor appropriate.
There are caveats (see directly afterwards about what happens when the CPS cobble together some old nonsense on the day from a file they found down the back of a radiator in the CPS office, and a bit more about the correct approach at para 192), and this isn’t, of course, a Court judgment. Nonetheless, this is a very useful bit of paper to wave around.
My cat. Resolutely refusing to tap dance.