Existing sanctions sufficient for disclosure failures, judges rule
PUBLISHED November 22, 2012
Thursday 22 November 2012 by John Hyde
Senior judges today rejected the creation of additional sanctions for disclosure failures against either the prosecution or defence in criminal cases.
A review of sanctions, requested by former lord chancellor Kenneth Clarke and carried out by Lord Justice Gross and Lord Justice Treacy, instead advocates updates to existing rules.
In particular, the judges called for the defendant to provide an updated defence statement in a specific time period or written statement to confirm there are no changes to the original defence statement.
The defendant must also notify the court and prosecution of any expert that the defence instructs with a view to possible use at trial.
Both elements were enacted by the Criminal Procedure and Investigations Act 1996 but had yet to be brought into force. The review concludes there was no demand for a general exclusionary rule when there has been non-disclosure of a relevant matter by the defence.
The possibility of a discretionary power to exclude evidence which would otherwise be admissible was also rejected. The judges did not advocate an increase in wasted costs orders against defence representatives as it is difficult to determine whether the fault lies with the defendant or their representative.
The review concludes: 'Throughout the consultation, we have considered the currently available sanctions and suggestions for alternatives posed by consultees.
'What has struck us has been the lack of any significant support for further sanctions; although consultees have helpfully considered the topic and brought suggestions to us, there has been no sense that additional sanctions are necessary or practicable, and no credible alternatives to the current sanctions have been proposed.'
For prosecution disclosure failures, the report does not recommend any further sanctions as it was felt the court already has sufficient powers to punish failures.