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Chapter 29: Large-scale Case Administration

Introduction

29.1. The Director's minute of 22 March 2005 (BD 23/2005) emphasised the importance of robust management of large scale cases. It is vital to develop well-constructed case strategy at the outset of prosecution involvement, backed by effective case plans, and disclosure should be a central part of this planning process.

29.2. The disclosure strategy developed in large-scale cases should be set out in a disclosure policy document, which lies at the heart of managing the non-sensitive disclosure aspects of the case. The early involvement of suitably trained disclosure counsel can also contribute greatly to effective case management provided they are properly supervised. This chapter seeks to assist prosecutors by outlining guidance on the use of a disclosure policy document (see paragraphs 29.3 - 29.6), the disclosure aspects of case management (see paragraphs 29.7 - 29.39), and the appropriate use of disclosure counsel (see paragraphs 29.40 - 29.54).

Disclosure policy document

29.3. It is the experience of prosecutors involved in large scale prosecutions that there will be intense scrutiny of disclosure decisions made regarding non sensitive unused material. In order to pre-empt such scrutiny it is appropriate for the prosecution team to produce a written disclosure policy document describing the steps that have been taken in the particular case. This document may be served at the initial disclosure stage on all parties including the defence and the court. The document should be prepared by the prosecutor in consultation with the disclosure officer.

29.4. The purpose of the document is:

  • to provide an open and transparent basis for disclosure decisions
  • to win judicial confidence and approval for disclosure decisions
  • to define and bring forward any disclosure arguments by engaging the defence at the earliest opportunity
  • to be part of a full audit trail susceptible to later examination, in pursuit of the aims of consistency and fairness.

29.5. It is not possible to be prescriptive about which type of large-scale case comes into this category and the following list of issues should be considered when deciding whether such a document is needed. The greater the number of issues expected to arise in the instant case, the more likely it is that a disclosure policy document will be needed. The following list identifies key issues:

  • there are a large number of accused and/or it is a high cost case
  • there has been significant intelligence gathering prior to charge
  • there are multiple disclosure officers and a lead disclosure officer has been appointed
  • there has been retention of other materials which the disclosure officer considers are not relevant
  • there are a number of third parties involved who are in possession of material which may have a bearing on the case
  • there are numerous other lines of enquiry which the court may deem are reasonable enquiries, given the offence
  • there is a large amount of unused material that is physically too big to review or inspect
  • there are a number of linked cases (a problem particularly relevant to HMRC)
  • there is to be an appointment of disclosure counsel in view of the extent of unused material
  • there is to be a complex and lengthy PII application, upon which the defence may wish to make representations.

29.6. The policy document template is attached at Annex E.

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Case management

Introduction

29.7. Large-scale cases create difficulties for the prosecutor in terms of the volume of both the evidence and unused material. Factors that contribute to difficulties may include the length of the investigation, the number of defendants, the number of witnesses, applying differential disclosure, dealing with material from joint or linked investigations, and accessing or obtaining third party material, particularly from foreign jurisdictions. Any difficulties may be exacerbated by custody time limits (CTLs) because the prosecution will be required to demonstrate for any extension of those time limits that there is good and sufficient cause and that it has acted with all due expedition.

29.8. Large-scale cases require project management techniques. Effective large-scale case management will demand discipline from investigator and prosecutor alike to ensure that plans, timescales, milestones and risk assessments are identified, adopted, and monitored.

29.9. In applying the guidance in this chapter, investigators and prosecutors should be aware of the terms of the Lord Chief Justice's Protocol (the Protocol) on the handling of heavy fraud and other complex criminal cases. This will mean that where the prosecutor or lead advocate considers the case is likely to last more than 8 weeks (40 days), the case should be referred to a senior prosecutor and the guidance contained in the Director's minute of 22 March 2005 should be followed.

Early issues

29.10. Early contact between the reviewing prosecutor and the investigator and the early appointment of the prosecution advocate is vital in large-scale cases.

29.11. Potential disclosure issues should be aired and actioned early and not left while evidence is being collected.

29.12. Where there is more than one investigating agency, the Operational Memoranda of Understanding (OMOU) or the disclosure agreement document should be used (see chapter 32 and Annexes F and G) to set out the strategy for the identification, retention, recording and revelation of material relevant to the investigation.

29.13. The identification, role parameters and reporting channels of the lead disclosure officer and any deputy disclosure officer must be clearly established.

29.14. Investigators and prosecutors should consider whether all reasonable lines of enquiry have been pursued. Likely sources of evidence and unused material should be explored and decisions made as to how this material should be obtained. Where material is in possession of third parties, decisions will need to be made as to how to access this material. Where the material is outside of the jurisdiction, a letter of request may be needed (see further guidance in chapter 35).

29.15. Prosecutors and investigators should agree a disclosure policy, and set this out in the specimen disclosure policy document at Annex E.

29.16. Investigators and prosecutors should consider whether there are any aspects of disclosure that will require special handling. In particular, the extent, disclosability and impact of sensitive material should be addressed from the very outset of a case. Where a third party has, or is believed to have, relevant sensitive material, contact should be made to ascertain the third party's stance on how the material may be inspected and handled.

29.17. The prosecutor should consider whether his or her prosecution unit will require extra resources to adequately handle the case, and if not, seek management approval for additional assistance to be made available.

Systems and administration

29.18. The prosecutor must ensure that all disclosure decisions and actions are recorded accurately, clearly and concisely on the disclosure record sheet attached to the case file, along with a list of what has been disclosed to the defence, and when. It is essential that a disciplined and methodical approach be taken in large-scale cases. A clear and comprehensive record should serve as an audit trail for colleagues. It will assist to prevent confusion and disputes about what material has or has not been served; it can simplify trial preparation and instructions to the prosecution advocate and any disclosure counsel. In addition, an appropriately edited (for sensitive material) disclosure record sheet can also form the basis of a disclosure index to be served on the court and defence when proceedings reach trial when there are issues over what was served, and when.

29.19. Instructions to counsel should make it clear that the disclosure record sheet must be kept updated by trial counsel and/or disclosure counsel during the course of the trial.

29.20. Efficient case management will require efficient systems at the prosecutor's unit. It is particularly important in large-scale cases that systems are in place to:

  • record the receipt of papers (and other material) and service of them on the court and defence
  • to record and action court orders or other deadlines and monitor compliance
  • to deal with correspondence and to carry forward actions where a response cannot be made immediately.

29.21. It is essential that the file record shows what was sent, when and to whom in respect of all evidence and unused material served.

29.22. The lead disclosure officer should ensure that all disclosure schedules are compiled in accordance with the guidance set out earlier. In large-scale cases, it is particularly important that all successive schedule submissions follow on from the last in terms of consecutive numbering of individual items. Where this does not occur, the prosecutor should raise the matter at an early stage and ensure that the lead disclosure officer puts this system in place.

29.23. Where confiscation proceedings are in progress or envisaged, the lead disclosure officer must ensure that material gathered in the course of those investigations be incorporated into the appropriate schedule (where the material is unused, as in some cases it may form part of the evidence, for example if it was obtained under sections 55-56 Drug Trafficking Act 1994). Where it is apparent this has not occurred, the prosecutor should raise this with the disclosure officer and insist on amended schedules.

29.24. The prosecutor should ensure that copies of non-sensitive material, whether kept on or off file, are clearly and accurately indexed to the schedules.

29.25. Large-scale cases will often necessitate service of successive tranches of disclosure upon the defence, both when the disclosure duty is triggered under the CPIA 1996 and as part of the duty of continuing review. The use and disclosure of the disclosure policy document will assist the defence and the court to understand the rationale for such an approach and reduce the risk of challenge.

29.26. The prosecutor should ensure that notes of conferences and actions arising therefrom are kept, action dated and monitored to completion.

29.27. The prosecutor or a suitable representative should attend all court hearings. A clear note should be made of all court orders and any other actions required. These should be action-dated and brought to the attention of all relevant parties promptly after each hearing.

29.28. The prosecutor should ensure as far as possible that the prosecution advocate who is instructed attends all court hearings. This should be underlined as a requirement in the original instructions. The availability and commitment of the advocate to attend all hearings in large-scale cases should be a factor in deciding which advocate to instruct. Otherwise, different advocates attending successive court hearings in complex large-scale cases may pose an unacceptable risk of the case getting out of control. Where a different advocate is unavoidable, the same alternative should be sent instead or the prosecutor/caseworker should attend.

29.29. The prosecutor must be alert to the risks of material being served and not recorded at court, either by the prosecution advocate or by disclosure counsel. It is recognised that as issues arise in a trial, disclosure of unused material may have to be made. Prosecution advocates should be instructed to ensure wherever possible that such service is done methodically and properly recorded on the schedules and record sheet. It must be emphasised however that there is no basis in law for disclosure on a counsel-to-counsel basis. Instructions to the prosecution advocate and/or disclosure counsel should clearly set out what is expected in respect of the service of unused material and how this will be achieved. Where, despite this, material is served informally at court, a record must be made on the disclosure record sheet.

Court liaison

29.30. A clear disclosure policy should assist the prosecution to secure and maintain the confidence of the court as to the proper discharge of its disclosure obligations for non-sensitive material.

29.31. Under the Protocol, paragraph 1iv, special arrangements will be put in place for cases likely to last more than 8 weeks, to ensure that the CPS or other prosecution authorities notify the Legal Services Commission and a single designated officer of the court in each court circuit. Close and early liaison with the relevant court manager may assist in the effective management of the proceedings. Likewise the prosecutor and the prosecution advocate should consider whether the case would benefit from preparatory hearings under sections 28 - 32 of the CPIA 1996 as well as serving draft admissions requiring the defence to respond within a specified period in order to encourage proper defence statements (the Protocol, paragraph 3 iv) g).

29.32. At the outset the judge will set a timetable for dealing with disclosure issues, including a date by which all defence applications for specific disclosure must be made. The defence should provide a specific, manageable and realistic list of the documents they are interested in and from what source. The prosecution should only disclose those documents meeting the disclosure test (the Protocol, paragraph 4 ii).

29.33. If the bona fides of the investigation is called into question, consideration should be given to calling the officer in charge of the case to the early case management hearing to give evidence on oath covering the contents of the disclosure schedules (the Protocol, paragraph 4 vi) b).

29.34. Thorough, well prepared case management hearings will save court time and costs overall. The trial date should not be fixed until the issues have been explored at a full case management hearing.

The statutory charging scheme

29.35. Large-scale cases, by their very nature, are prone to delay. Frequently, this is due to the obtaining and collation of forensic material and/or evidence resulting from complex inquiries. Where defendants are in custody and CTL extensions sought, to demonstrate due expedition it will be vital that the prosecution can justify the decision to charge at an early stage. This means that early and effective liaison between the lead investigator and the prosecutor is essential.

29.36. There is currently no authority on the disclosability or otherwise of the relevant charging paperwork (MG3/3A), other than in judicial review procedures. In the normal course of events, this paperwork will not be relevant (see the guidance at chapter 5, paragraph 5.12). However, should there be an order from the court that the charging authority paperwork be disclosed prior to trial (for instance, as a result of arguments concerning 'good and sufficient cause' and/or 'due expedition' in the context of applications for extension of CTLs), the manner in which the prosecution approached the initial charging decision will be vital.

Handover procedures

29.37. During the life of a case there may be successive investigators, disclosure officers, prosecutors and advocates. Where this occurs, best practice suggests that there should be proper handover procedures between the outgoing and incoming personnel.

29.38. Incoming personnel should have the opportunity to acquaint themselves with the papers prior to any discussion and handover, in order that they can make sensible decisions regarding disclosure with a firm grasp of the essence of the case. It is therefore incumbent upon prosecutors and investigators to ensure handovers occur only when absolutely necessary, and that when they do, to ensure this is done properly and effectively.

29.39. A full record of the details of all handovers must be kept with the case papers or recorded on the file.

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Disclosure counsel

General guidance

29.40. Best practice dictates that generally it should be the lawyer in a case who examines and makes decisions on unused material. However, it has to be acknowledged that in certain instances, it is appropriate to instruct counsel to carry out this task (or a proportion of it) either alone or in conjunction with the lawyer in the case. This can conveniently be described as appointing disclosure counsel. Counsel is instructed to advise the prosecutor and may be instructed to endorse the schedules as to his assessment of disclosure decisions.

29.41. Such a decision will usually be taken where the volume or complexity of the material is such that it is inappropriate or impractical for the prosecutor to carry out the task or where time constraints render it so. In addition, such a course may be considered where counsel has a particular degree of expertise, for example either because of the specialised nature of the material or because of knowledge of a linked case.

29.42. The decision to appoint disclosure counsel is more likely to be made at the outset of a case with a view not only to assessing unused material but also deciding which items should constitute the evidence relied upon. Counsel instructed may be the junior for the whole case or may be instructed solely to deal with the question of disclosure. Irrespective of this, they should be instructed for the duration of the case. Exceptionally large cases may require a team of disclosure counsel.

Case management

29.43. Whatever role or responsibility is given to disclosure counsel, the ultimate responsibility for all aspects of the case remains with the reviewing prosecutor.

29.44. Particular duties, including disclosure decisions, may be delegated to someone acting on behalf of the prosecution authority. Where instructed however, disclosure counsel will discharge prosecution duties for the purposes of the CPIA  1996 and Code of Practice.

29.45. It is the responsibility of the reviewing lawyer to manage his or her case in a way that means responsibility is properly borne. This means taking all reasonable steps to set out clearly:

  • the parameters of disclosure counsel's role
  • the tasks
  • the level of autonomy
  • the type of decisions that counsel can take
  • the type of decisions that have to be referred to the reviewing prosecutor
  • the role of disclosure counsel in any subsequent trial.

29.46. The rationale for the appointment, the extent of the appointment and the scope of counsel's duties should be recorded in counsel's brief and agreed with trial counsel.

29.47. The instructions should cover sensitive and non-sensitive material. The non-sensitive material sections should be also included in the disclosure policy document to be sent to the court and defence.

29.48. Where appropriate, separate duties should be recorded for the various stages of a case - pre-charge, post-charge, service of case and trial. A copy of the Disclosure Policy Document should also accompany the brief.

Selection of counsel

29.49. Only suitably experienced, competent and capable counsel should be appointed who are familiar with the CPIA 1996, the Code of Practice, the Guidelines, and this manual. Those instructing counsel should be aware of any guidance on counsel's fees issued by their department.

29.50. Counsel should be instructed in writing, although in many cases it would be beneficial to reinforce those instructions in a conference. This will be a good opportunity to introduce counsel to the officer in charge of the investigation and disclosure officer, with whom counsel will have to liase. Instructions should refer counsel specifically to the CPIA 1996, the Code of Practice, the Guidelines and this manual.

29.51. Very careful consideration should be given to disclosure counsel's fees, which should be agreed in advance with counsel's chambers. If agreement is reached on a daily rate, there should be an estimate of the overall time required for the work, if possible. Actual costs should be periodically reviewed. Agreement should also be reached on the disclosure counsel's role and fees for attendance at any trial. Best practice would suggest that they should be used as a junior trial counsel wherever possible (although in large-scale cases with several disclosure counsel, this may not be practicable.)

29.52. Disclosure counsel should be instructed to examine each item on the sensitive unused material schedule unless the description is such that it clearly renders such examination unnecessary.

29.53. A written advice on disclosure will be required (if necessary adopting and incorporating the endorsed schedules) and arrangements should be made for interim progress reports from counsel, orally or in writing and at such intervals as the reviewing prosecutor considers appropriate.

29.54. Counsel should be instructed to maintain a full, written audit trail of the work he or she has carried out. Instructions should also make clear the responsibility of trial or disclosure counsel to keep the disclosure record sheet updated during the trial.

29.55. It should be made clear in the instructions that counsel will be expected to be disclosure counsel in any forthcoming trial. In the normal course it would be very exceptional reasons that would prevent counsel's attendance at the trial, and accordingly counsel should make the necessary arrangements to make himself or herself available as early as possible.

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