Disclosure has long been regarded as the single most significant hurdle to the integrity of the criminal justice system. The Criminal Cases Review Commission, the organisation set up to investigate suspected miscarriages of justice, has recently come out to affirm this long-held view: ‘the most frequent case of miscarriages of justice continues to be the failure to disclose to the defence information which could have assisted the accused.’1 The string of cases collapsing, including that of Liam Allan’s2, serve as evidence of the sheer magnitude of the problem.
Disclosure failings hit at the heart of the Criminal Justice System. It encroaches on an accused person’s right to a fair trial, a right long embodied in law and guaranteed by Article 6 of the European Convention on Human Rights. It also subverts legislative intent as articulated in the overriding objective of the Criminal Procedure Rules: ‘acquitting the innocent and convicting the guilty.’3However, disclosure as it results in a case delayed, disrupted or collapsed is not just impactful for defendants – it affects victim-complainants too. The anguish of giving testimony on your sexual assault at trial, just to be informed later on that your case has to be dropped as it is not robust enough, can be an immensely painful experience. Giving complainants false hope as to the realistic prospect of conviction prolongs their suffering unnecessarily. It also reduces the credibility of other rape complainants when the news splashes with headlines about false rape accusations. If false accusations are weeded out earlier via the mechanisms of proper disclosure and prosecutorial discretion, the public will not be led to the misconception that rape complaints are more likely false than true. Indeed, when news of the CPS’ disclosure failings hit, the media picked up on sexual assault cases more than any other type of offence, even though only about 1 in 50 of the cases the CPS identified as having been stopped due to disclosure errors related to sex offences.4With respect to victims of other crimes, disclosure failings divert the already limited resources to cases not worth the investment, so there is a clear opportunity cost here. Furthermore, the perception of procedural fairness also impacts would-be criminals –criminologists have long said that legitimacy of the Criminal Justice System is key to ensuring behavioural compliance of the law.5
It should be noted that the duty of disclosure is more onerous for prosecutors than for defendants, in part because of the notion of equality of arms. The state’s superior resources mean the defence should have access to all relevant evidence, and the prosecutor is but a mere trustee rather than owner6of the information gathered over the course of a police investigation. Seen in this light, the prosecutor is an objective administrator of justice, rather than a crusader with an axe to grind.
The statutory regime for disclosure is set out in the Criminal Procedure and Investigations Act 1996 (CPIA7) under a two-part model of initial duty and continuing duty to disclose. Under s.3 the prosecutor has an initial duty of disclosure. Subsection (1) provides that the prosecutor must: (a) "disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused, or (b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a)."
The initial duty is supplemented by a duty under s.7Aof continuing disclosure. This duty arises irrespective of whether the defence has complied with its own duty under s.5(5) to give a defence statement to the court and the prosecutor. The test set out in s.3 is an objective test of any unused material that might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused – it does not matter if the prosecutor himself/herself does not think it does.
The police play a key role here, as the procedure for disclosure of unused material starts with them. The police officer is required to prepare schedules of the unused material which are divided between sensitive and non-sensitive material. As for non-sensitive material, it must be explained in sufficient detail to enable the prosecutor to decide whether they need to inspect the material before disclosing to the defence. The disclosure officer must also prepare a report highlighting to the prosecutor any material which the officer believes satisfies the CPIA test for disclosure or, certify that there is no such material for both schedules.
The prosecutor acts as a second check, with the expectation that he/she identify any relevant material which may exist but has not been revealed. Should the schedule be barren with details, the prosecutor has the right to ask for a more comprehensive one. Once satisfied with the list provided, the prosecutor must then decide how far to endorse the schedules, in terms of what material is to be disclosed or withheld from the defence.
Whilst the statutory rules in place governing disclosure seem robust, in practice, disclosure is a whole other creature. Richard Horwell QC notes, “although disclosure guidelines, manuals and policy documents are necessary, it is the mindset and experience of those who do disclosure work that is paramount”.8 The adversarial system of criminal litigation no doubt has a part to play in this. Research has eluded to a ‘case construction’ mindset which is to view the suspect as the ‘criminal’ to build a case against, and the complainant as the ‘victim’ even before investigation. Subconsciously, evidence that does not fit the narrative is minimised and that which supports it is given greater weight. This can influence how material is listed on the schedules, with very little detail be given to ‘unhelpful’ material to avoid CPS attention.9There has also been research that found that the police have been classifying evidence favourable to the defence, in the ‘sensitive’ list of unused materials, so that the defence would not have access to it, and be in the position to request for disclosure. The Crown Prosecution Service Inspectorate found that only 20% of cases judged by the police to involve sensitive material were properly categorised as such; and inadequate descriptions on the sensitive schedules were rarely questioned by prosecutors.10
Quirk’s research also confirms that there is reluctance on the part of some officers to help the defence by giving potentially exculpatory evidence.11If the police are under the impression that they have a strong prima facie case, they might find it is the defence’s job to investigate for themselves and find an answer to the prosecution’s case. The defence is ill-equipped to combat this as disclosure is sometimes a problem of the ‘unknown unknown’ – they do not know what to ask for and so non-disclosure curbs their attempts to represent their client.12
However, it is not always the case that law enforcement is unwilling, they may also be unable. The obligation to consider material from the defence’s perspective, which the CPIA interestingly placed on the police, is a taxing one considering their capabilities. They have no formal legal training, so they understandably may not be able to recognise the potential value of the material for use in cross-examination or to refute or support a legal point, the way an evidence lawyer would. Indeed, many police officers have admitted that they lacked confidence in their role and responsibilities as disclosure officers.13
Disclosure failings can also be explained as a symptom of a system under significant strain. The noticeable reduction in resources and funding makes abiding by disclosure rules difficult. It was found that CPS net expenditure fell by 27% from £672 to £491m between 2009 and 201714and the number of full time staff employed fell by 11%.15Funding to the Police and Crime Commissioners fell by 25% between 2010 and 2016, and the workforce reduced by more than 45, 000 (19%) between March 2010 and March 2017.16The Public Accounts Committee 2016 found that ‘the criminal justice system is close to a breaking point’ and Angela Rafferty QC, Chair of the Criminal Bar Association, has stated (with regards to disclosure failings) that ‘the effects of those cuts are coming home to roost’.
To their credit, since the discovery of disclosure failings, the law enforcement have stepped up their efforts. Mike Cunningham, the chief executive of the College of Policing, has said officers are being trained that disclosure is “an integral part of investigation”, with a focus on challenging old attitudes that disclosure is “bureaucratic add-on” or a “blinking tortuous piece of work”.17
Increasing the budget for the CPS and Police will also go a long way towards improving disclosure realities. Given the Parliamentary review on the whole system of disclosure undertaken in 2018, it is hoped that playmakers will invest more money into the Criminal Justice System. This will only become more and more important due to the explosion in digital material. Surveying mobile phones and social media content of both complainants and suspects which often involve pages and pages of downloads, is surely no easy feat when you are both under-staffed and under-funded.
5. Tyler, 2003; 2006
6. P. O’ Connor, ‘Prosecution Disclosure: Principle, Practice, and Justice 1992
7. Ian Dennis provides the helpful summary of CPIA rules, as well as further detail in: ‘Prosecution Disclosure: are the problems insoluble?’ 2018
8. Report into the failure of the authorities properly to disclose material in the Mouncher case in July 2017
9. Dr Hannah Quirk, http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/justice-committee/disclosure-of-evidence-in-criminal-cases/written/80749.html
10. Making it Fair: The Disclosure of Unused Material in Volume Crown Court Cases, HM Crown Prosecution Service Inspectorate July 2017; c.f. for more findings on CPS and police culture
11. Quirk "The significance of culture in criminal procedure reform: why the revised disclosure scheme cannot work" (2006)
13. Making it Fair: The Disclosure of Unused Material in Volume Crown Court Cases, HM Crown Prosecution Service Inspectorate July 2017