ABSTRACT
Various proposals concerning the reform of the disclosure regime have been made. Some commentators suggested improvements which amounted to minor variations of the system, or a combination of variations, which could be implemented with a minimum of disruption. Other commentators have made far reaching proposals. In this part, the main proposals for reform made by other writers will be stated. Many of the proposals flow from the criticisms of the current regime in England and Wales discussed in Chapter 13. Other proposals were discussed in detail in Chapter 11. Therefore, the following discussion of those proposals is very brief. It is submitted that some of the proposals do have some merit in the interim and are likely to make a positive impact in some cases. Ultimately, however, the main thrust of attempts to reform the investigation and disclosure system must, as the Chairman of the Law Society’s criminal law committee, Malcolm Fowler, has said, involve ‘root and branch’ reform.1 This invites a discussion of new proposals. It may even justify considering some extreme suggestions. It may be instructive, at least from an academic point of view, to consider whether or not fundamental changes to key features of the trial process can be justified. One such proposal, which is briefly analysed below, is to change the standard of proof to beyond doubt. It is submitted, however, that the long term goal must be to secure police compliance with the fair trial principle. Thereafter, the details of the disclosure regime will be much easier to assemble. It is to this end that two original proposals for reform will be presented. The proposals are variants of the theme that the way forward might be to require the prosecution to prove compliance with the code at trial, or preferably, pre-trial.
