Several forces were caught on the hop by the changes to pre-charge disclosure at the beginning of this year.

Brought about by the Attorney General on January 1 they included the introduction of a ‘rebuttable presumption’ in favour of disclosing certain categories of material. This acknowledged that there are certain materials generated during the course of an investigation which are almost always likely to contain relevant material and therefore should be scheduled.

The new Guidelines and Code of Practice also brought forward the disclosure timetable and process. Where the police seek a charging decision under the Full Code Test, and it is anticipated that the defendant will plead not guilty, the unused material schedules are now provided to the prosecutor at the point of charge.

Humberside Police had some added complications  - pre-charge expertise being largely a HQ  function within the Criminal Justice Unit – but a neat piece of technology has proved a game changer for the large number of officers needing to prepare case files and to build in disclosure.

Chief Insp Will Jenkins is the project manager and he told Police Oracle that the short timeframe for the changes took many forces by surprise.

“The changes represent a seismic shift really in frontloading the pre-charge aspects of disclosure,” he said. “The changes also came in really quickly. The consultation period didn’t finish until the end of November and literally two weeks later it was laid before parliament and two weeks after that, enacted.

“All forces have been caught out by the speed of change.”

Humberside were in a precarious position because the force didn’t have a pre-charge team sat within the Criminal Justice Unit to provide a checking system for the changes (it now has a temporary team in place and is moving towards that model).

In addition all the disclosure experts in the force worked either in the criminal justice unit or were attached to specialist major crime teams investigating serious sexual assault and murder cases. There was very little disclosure experience on the front line.

“We have a lot of new people (due to the Uplift) but there was also a culture of inexperience with disclosure outside the CJU and major crime teams,” says Chief Insp Jenkins.

The answer his team came up with was a digital solution to guide officers through the disclosure process.

This was initially based around the Investigation Management Document (IMD) -  an agreed national template that was introduced at the end of last year as part of the National Disclosure Improvement Plan.

This was in the form of a Word document or a PDF that each officer needing to complete a case file would fill in. To help officers comply with the new disclosure requirements the force has made the form a digital intuitive process that guides the user through all the steps mandated by the changes.

If the fields have not been filled in correctly the officer using the system cannot complete the document.  

In Humberside officers now click on the Sharepoint link for the IMD. There is a dashboard showing forms which have been completed by other people. They put in a reference number and it starts creating the document but with an auto correct function to make sure each field has been completed correctly.

This is usually achieved through answering yes or no questions. So, for example, in terms of ‘reasonable lines of inquiry’ officers would have to answer yes or no to whether there is CCTV evidence. If the user answers yes an ancillary question then has to  be answered and the IMD cannot be created until every single question set has been answered.

After these checks have been completed the user then turns the form into a document that is attached to the case file and shared with the CPS. If officers need to amend the document it can be retrieved and re-saved.

Humberside has been using the digital form since April and Insp Jenkins says the feedback from officers has been really positive.

“The feedback we are getting from the pre-charge team and the CPS is that the forms they have  seen look a lot better,” he says.

Humberside have now replicated this process for the MG6 changes which can cover up to six forms.

“This was a big ask because a lot of officers have never completed disclosure schedules and really didn’t know what schedules to apply to the different types of cases,” he adds.

The process has the same ‘look and feel’ as the IMD digital form but in this case it automatically generates every type of form required. So it completes the MG6, the TD and E and the SDCs (streamline disclosure certificates) which are used for lower level cases that go through magistrates courts.

“Officers don’t need to worry about which type of form they have to complete, it attaches them all to the digital case file and the CPS can then use whatever they want,” says Chief Insp Jenkins.

Officers don’t need any training to use the system as it is completely intuitive and is a bit like filling in a passport form on the government portal. Like other forces Humberside officers have undergone NCALT training around the importance of the new disclosure requirements but the digital process provides a fail safe route to compliance with a complex piece of new legislation.

Other forces have shown an interest in the system including Lancashire and regional policing partners North Yorkshire, South Yorkshire and West Yorkshire.

In February next year Humberside will move from its current RMS Connect system to Niche but as the digital disclosure system is standalone it will simply be plugged into the new architecture says Chief Insp Jenkins.

CHANGES TO DISCLOSURE

The Investigation Management Document (IMD) was introduced on 31st December 2020. Central to the National Disclosure Improvement Plan has always been the need to encourage a “thinking” approach to disclosure. This means that CPIA considerations must be integral to investigators’ identification and execution of reasonable lines of enquiry (RLE) and demonstrably uppermost in their minds - from report to court. This is the purpose of the IMD. The IMD will see that reasonable lines of enquiry are documented and explained by investigators at the outset of the investigation. The CPS will use the IMD to inform the Disclosure Management Document (DMD). Properly completed, the IMD will enhance judicial, CPS, defence and public confidence in police investigations if investigators are able routinely to explain, with reference to all matters in issue, what they did and why, and what they did not do and why not.

The Attorney General’s Guidelines, supported by the Director's Guidance on Charging (6th Edition), includes a requirement for information about reasonable lines of enquiry to be provided at the pre-charge stage in order to better inform decision making rom the outset.

On 31 December 2020 the Attorney General published updated Guidelines on Disclosure and the CPIA Codes of Practice were brought into force. These brought about a number of important changes to the disclosure regime; for the first time it introduced the concept of a ‘rebuttable presumption’ in favour of disclosing certain categories of material. This concept acknowledged that there are certain materials generated during the course of an investigation which are almost always likely to contain relevant material (and therefore should be scheduled) and which will often contain information which may undermine the prosecution case or assist the defence case (and so will often by disclosable). Prosecutors and investigators are required to start on the basis that these items will be disclosable, a presumption which can be rebutted with a considered application of the disclosure test. These materials, if they exist, will always be scheduled and may often be disclosed at an early stage in proceedings.

The Guidelines and Code of Practice also brought forward the disclosure timetable and process. Where the police seek a charging decision under the Full Code Test, and it is anticipated that the defendant will plead not guilty, the unused material schedules are now provided to the prosecutor at the point of charge. This front loading of disclosure allows the prosecutor to consider the impact of unused material on the prospects of conviction in a case at the point of charge. It will also mean that often the prosecutor is able to disclose material which satisfies the test in advance of the first hearing in order that meaningful progress can be made.

Another key change introduced through the Guidelines was the expansion of the use of Disclosure Management Documents (DMDs) to all Crown Court cases and appropriate Magistrates' Court and Youth Court cases. DMDs are a core part of the way disclosure is handled in Rape and Serious Sexual Offences (RASSO) and Complex Casework Unit (CCU) cases. Using information provided by the Police in the IMD, prosecutors are able to provide the defence and the Court with clarity on the approach which has been taken to disclosure in their case at the PTPH so that judicial scrutiny can be brought to bear and a timetable set for managing disclosure at an early stage in the case.

Voluntary pre-charge defence engagement has also been introduced under the Guidelines and we are exploring the possibility of bringing a formalised structure to pre-charge engagement between investigators, prosecutors and those representing the suspect in suitable cases. The potential to formalise this process is being considered with input from defence stakeholder groups.

These changes mark a shift in practice for both CPS and police, and it is expected that the move towards the provision of schedules in pre-charge cases, and of material presumed to be disclosable will lead to a meaningful shift in culture. During the next phase of NDIP the impact of the changes will be  carefully monitored.

Another key change introduced through the Guidelines was the expansion of the use of Disclosure Management Documents (DMDs) to all Crown Court cases and appropriate Magistrates' Court and Youth Court cases. DMDs are a core part of the way disclosure is handled in Rape and Serious Sexual Offences (RASSO) and Complex Casework Unit (CCU) cases. Using information provided by the Police in the IMD, prosecutors are able to provide the defence and the Court with clarity on the approach which has been taken to disclosure in their case at the PTPH so that judicial scrutiny can be brought to bear and a timetable set for managing disclosure at an early stage in the case.

Voluntary pre-charge defence engagement has also been introduced under the Guidelines and the possibility of bringing a formalised structure to pre-charge engagement between investigators, prosecutors and those representing the suspect in suitable cases is being explored. The potential to formalise this process is being considered with input from defence stakeholder groups.