REPORT ON INITIAL DISCLOSURE
Initial disclosure at the Magistrates Court has been a subject which has been discussed on several occasions in the last year at the Criminal Procedure Rule Committee. The Crown agreed to look at Courts/Regions where there were particular problems and as a consequence I requested details of any such problems by posting a notice on the websites of the Law Society, Criminal Law Solicitors Association and London Criminal Courts Solicitors Association. The notice contained 4 questions which were as follows:
1) Can you get initial disclosure before the first hearing at your local Court if you request it in advance?
2) Is initial disclosure available first thing when you arrive at Court on the morning of the hearing or is there often a wait because the papers have not arrived at Court?
3) Is there someone from the prosecution present who you can discuss the case with a view to making progress and perhaps even agree acceptable pleas?
4) Are the contents of initial disclosure sufficient?
I received a number of responses from Solicitors describing their experiences at their local courts. . They were all from defence solicitors except one which was from a lay magistrate. As a result of receiving so many rather than forward them piecemeal to the Crown I have prepared a report which is set out below.
Responses were made in relation to Barkingside, Camberwell, Hendon, Highbury and Westminster Magistrates Courts. There were a number of common trends in relation to all of these courts which I set out below.
1) It was almost unheard of for papers to be served in advance, requests for service in advance were rarely acknowledged, it was rare for correspondence to be responded to at all and only in benefit matters and cases began by summons would papers be served in advance. At Barkingside Magistrates Court there is a less than 50/50 chance of seeing any disclosure before court starts at 10.00 clock. At Hendon Magistrates Court the record of previous convictions is regularly omitted from the advance disclosure.
2) Frequently there is no prosecutor in the court building who can make significant decisions, i.e. discuss potential representations concerning pleas. Often the prosecutor is reading the papers on the day of the hearing, papers often arrive late and therefore served late (particularly in custody cases, but not exclusively) and as a result the prosecutor is unwilling to discuss the case with the defence advocate.
3) Reference was also made in some cases to the papers only being available electronically at court in bail cases (Hendon/Westminster and Highbury)
4) Reference was also made to try and bully defence reps into agreeing summary of commented interview without tape being available
The experiences reported outside London were much more varied and so I set out specifically in relation to each court.
Basildon and Southend Magistrates Court
Impossible to obtain advance disclosure in advance of the first hearing. Not always available first thing in the morning as the court starts at 9.30am. There are no prosecutors available to make decisions or negotiate pleas, often where there are prosecutors available in the court building, they will not deal with the matter in any event and require written representations.
Cheshire Magistrates Court
No response is usually received to requests in advance of the hearing for initial disclosure and papers have to be collected in the morning at court. Most prosecutors are associate prosecutors.
Manchester-City Magistrates Court
Disclosure is never available before the hearing, usually available first thing in bail cases and a little later in custody cases.
Prosecutors are rarely available more than a few minutes before court commences leaving little time for meaningful discussion. Contents of initial disclosure are not always sufficient and the defence are put under pressure to agree evidence.
Plymouth Magistrates Court
Can obtain disclosure electronically in advance. Would like a rule where it can be served in advance of hearing and in custody cases at least half an hour before the hearing.
Rotherham Magistrates Court
If disclosure is requested in advance of the first hearing, estimate in 1 in 5 cases will receive it and it will be in electronic form. In the remainder of cases no response received at all. Prosecutors are associate prosecutors who do not have authority to discuss with defence reps potential acceptable pleas. Crown routinely fail to comply with directions and material that should be served in advance of the trial is frequently served on the day of trial.
Sunderland Magistrates Court
Where advance information is requested in advance it is rarely served, but is available promptly at court. Many trials are vacated due to lack of disclosure. Most court lists run by associate prosecutors so impossible to have meaningful discussion about appropriate pleas.
1) The lay magistrate who responded is a Commercial lawyer. He stated that trials frequently had to be delayed to allow the defence to look at material served late at the start of the trial
2) I was contacted by a Robin Falvey. He is an experienced solicitor who appears in Magistrates Courts all over the country. He informed that he had previously been asked by the former Solicitor General to assist the Crown in addressing disclosure problems and had provided some assistance. He states that because he appears all over the country he can report on which regions have the biggest issues, he stated that he would be happy to provide more information to the committee.
31st May, 2013