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Rape trial disclosure review report out

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CPS, review, disclosureThe police and the prosecutor each have clear duties to make sure that disclosure is conducted properly.

The Crown Prosecution Service (CPS) published the outcome of its review of rape and serious sexual offences (RASSO) cases earlier this month.

The CPS announced in January that its senior prosecutors were assessing all cases in England and Wales in which someone had been charged with rape or serious sexual assault.

This additional scrutiny was undertaken after concerns were raised over how disclosure was handled by the CPS and the police, following decisions to stop several prosecutions late in the process.

More than 3,600 cases were looked at to ensure that disclosure was being managed effectively.

Disclosure refers to providing the defence with copies of, or access to any prosecution material which might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused. It is a crucial part of a fair trial.

The police and the prosecutor each have clear duties to make sure that disclosure is conducted properly.

When the police request a charging decision from the CPS, they must supply to the prosecutor any material which has been identified by them which could reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused. If an officer is unsure, he/she must seek advice from the prosecutor.

After a defendant has been charged, the police must then record all relevant unused material on a schedule (the Disclosure Schedule). “Relevant” in this context is a broad concept and includes any material related to the case unless it is incapable of having any impact on the case.

“Unused material” is material which is not going to be relied on as evidence for the prosecution. The material must be properly described, and the description must be accurate and contain enough detail for the prosecutor to decide what ought to be disclosed to the defence.

The police are also obliged to review and identify material listed on the Disclosure Schedule which could reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused.

Prosecutors must review Disclosure Schedules prepared by officers and must be alert to the possibility that relevant material may exist which has not been revealed to them. They should advise when necessary and probe the actions of police. If material appears to be missing or descriptions are not adequate then the prosecutor should take action to address that.

When initial disclosure takes place in a case, the Disclosure Schedule should be sent to the defence and the defence given a copy of, or access to any material which could reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused.

Once a Disclosure Schedule is received by the defence, in Crown Court cases they must respond by sending a Defence Statement to the CPS. This outlines their defence, and may request disclosure of material that they think will assist their case.

The CPS and the police have a duty to keep disclosure under review throughout the life of a case. The CPS and police are responsible for disclosure whether or not the defence make any requests for disclosure or for specific items or categories of material.

Specialist rape and serious sexual offences prosecutors assessed each case to be satisfied that the police had pursued all reasonable lines of inquiry, and that there was a clear strategy for disclosure to be carried out effectively and in a timely manner.

In total, 3,637 cases were assessed for this review; some were at an early stage, while others were close to trial, and the reviews were concluded by 13 February.

Prosecutors identified where additional work was required, either to strengthen the prosecution’s case or to be satisfied that the evidence continued to support the decision to prosecute. In many cases, the police were asked to conduct further investigations.

The cases that were stopped during the review period were subjected to further, detailed analysis. This was in order to identify whether there were any concerns about how disclosure had been handled, and any common themes that should feed into improvement work already under way.

Forty-seven prosecutions for rape or serious sexual offences which had been stopped in that period were found to have issues with the disclosure of unused material.

Common themes identified included communications evidence such as texts, emails and social media being examined too late in the process, the failure to identify and obtain material such as medical or social services records and the emergence of new evidence after charge.

Action is already under way to address the issues identified in the review.

The joint National Disclosure Improvement Plan includes a range of measures that will support police and prosecutors with their disclosure duties.

This includes:

The extension of Disclosure Management Documents to all rape and serious sexual offences and Complex Crown Court cases. These documents are used to outline the prosecution approach to disclosure for the court and the defence, and ensure disclosure issues are dealt with at an early stage;

The introduction of Disclosure Champions in all CPS Crown Court and Magistrates’ Court teams;

New training for all forces introduced by the College of Policing, taking into account the ongoing and significant changes in disclosure practice;

A new procedure for officers to identify reasonable lines of enquiry when submitting a charging decision request to the CPS; and

A new protocol between the CPS and police on the use of third party material.

The National Police Chiefs’ Council Lead for Criminal Justice, Chief Constable Nick Ephgrave, said: “The Crown Prosecution Service’s review of a number of rape and serious sexual offences cases has furthered our understanding of the causes of disclosure problems in these sensitive cases and reinforced the importance of the measures agreed in the joint disclosure improvement plan.

“In recent months, we have seen some prosecutions stopped far too late in the process with very serious impact on the lives of those involved – this is not right or fair.

“The changes we’re implementing will help to prevent this happening to others by ensuring reasonable lines of enquiry are identified early by police, prosecutors and the defence working together with timely review of the material generated.

“Real progress is already being made with new training to officers rolled out, improved processes and experts and champions identified in police forces and CPS areas.

“We are also working at pace to consider how technology could help us, and to review our progress so we can be sure the changes are making the difference we expect.”

To read the full report click here.

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