Disclosure update

Data inspection iStock 000008204804XSmall 146x219Natasha Taylor examines the key elements of the Protocol and Good Practice Models for disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings.

In October 2013, the Protocol and Good Practice Models for disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings was finalised. This Protocol came into practice on 1 January 2014.

The main aim is to facilitate timely and consistent disclosure of information and documents between the local authority/family justice system and the police and/or the CPS. This, it is hoped, will provide a more streamlined and standard process, thereby expediting court hearings.

The first point of interest is the creation of a “single point of contact” (SPOC). The local authority and the police identify persons to whom all such disclosure issues are to be addressed. This ensures consistency of approach and also ensures matters are dealt with swiftly as each SPOC will have been trained on the issue of disclosure.

Standardised forms have also been provided as templates to be used when information is requested. The police will use the new Annex C, the local authority will use the new Annex D. These templates ensure that the right information is provided in order for that party to be “focused” in the search for “relevant” material. Information is to be provided no later than 14 days after the request.

When the local authority request information from the police, the police will complete and return the second part of Annex D. Disclosure can be redacted. In certain cases the police may indicate they will only disclose with a Court Order (this will be very rare, and usually only if disclosure would jeopardise a police investigation).

Any order for disclosure by a court must be on Annex H (use of which is mandatory). The local authority must ensure any order against the police is served as soon as reasonably practicable and in any event within two working days. The police may make representations at any family hearing considering police disclosure.

Police request for local authority disclosure must be on Annex C and include details of any investigation/prosecution. The request for material must be “detailed” and “necessary”.

Upon notice, the local authority will identify relevant material (NB court documents are not to be examined, however a redacted court index can be provided, as can a summary of judgment).

The police will then arrange to view that material. In Essex, that takes place at the legal offices. The police may take notes/copies, but cannot make onward disclosure without consultation with the local authority or court order.

The Criminal Procedure and Investigation Act 1996 (CPIA) places a duty on the prosecution to disclose to the defence any material that could reasonably be considered capable of undermining the prosecution case, or assisting the defence. If the local authority material falls to be disclosed under the CPIA, the CPS are required to write to the local authority SPOC, setting out the reasons for disclosure in Annex E. The local authority must respond within five working days of notification in form Annex F.

If the local authority do not agree to disclosure, the CPS and the local authority must negotiate whether an edited form would be acceptable or a summary. If disclosure cannot be agreed the CPS will apply for a witness summons in the Crown Court for a public interest immunity hearing (PII).

Under the new regime, PII hearings are supposed to be rare. If it becomes necessary, the local authority representative will flag up the relevant evidence within the papers for the Crown Court judge, who will hear the application ex parte, and make any Order he sits fit.

One of the more ambitious aims of the Protocol is to specify a procedure for linked directions hearings in concurrent criminal and care proceedings. This may have been a step too far. Though in theory such joint hearings would make sense, the reality of the distinct mechanics of the family procedure rules and criminal procedure rules prevent such a desire on the grounds of practicality.

With a 26-week window for completing family hearings, the family court quite simply cannot wait for the lengthier criminal proceedings which on average take approximately 9 to 12 months. It appears that the timetable of both courts were kept out of mind when the senior presiding judge for England and Wales, the President of the Family Division and the Director of Public Prosecution signed the Protocol on 17 October 2013.

However, time has allowed reflection and on a recent visit to Essex the President of the Family Division the Sir James Munby was asked how such joined hearings could indeed happen, with such competing timescales. He was candid in his response and admitted that the family proceedings could not be held up.

The solution? Ignore Part C of the Protocol. Well if the President of the Family Division says so, then that’s ok. You heard it here first!

Natasha Taylor is a Solicitor in the Dispute Resolution Department at Essex Legal Services. She can be contacted on 01245 506682 or This email address is being protected from spambots. You need JavaScript enabled to view it..