Police failing to disclose properly in four out of 10 Crown Court cases
The police practice of disclosing evidence to the defence that could potentially harm the prosecution case was reckoned to be ‘poor’ in four out of 10 Crown Court files, according to a new report by watchdogs published yesterday. Elle Sheerin reports on a damning study, jointly published by the Crown Prosecution Service Inspectorate and Her Majesty’s Inspector of Constabulary, reveals that failures in disclosure were jeopardising fair trials and risking miscarriages of justice.
According to the attorney general’s guidelines (here), full disclosure should be made of all material held by the prosecution that weakens its case or strengthens that of the defence. The inspectors reckon that the process of recording materials by the police was ‘routinely poor’ and the likelihood of revealing material to the prosecutor that could undermine the prosecution’s case or assist the defence was ‘rare’. Not only that but prosecutors failed to challenge these poor quality schedules and provided little or no input to the police. Neither party was managing sensitive material – i.e., material that it is believed would not be in the public interest to disclose – effectively, leading to potentially undermining material only being disclosed late or not at all ‘in circumstances where a miscarriage of justice was only narrowly avoided.’ The failures were compounded by the lack of any auditing trail recording the decision-making process by police and prosecutors which fell ‘far below any acceptable standard of performance’.
The release of the Inspectorates’ report coincided with the publication of the Mouncher investigation report into the notorious case of the Cardiff 3 which collapsed after crucial evidence went ‘missing’. You can read about the Cardiff 3 on the Justice Gap here. The collapse of the trial was deemed by the report to be down to ‘human error’ as opposed to ‘wickedness’, but these errors were found in, amongst other areas, disclosing evidence. The report made 17 recommendations for the disclosure process, and commented: ‘Disclosure problems have blighted our criminal justice system for too long and although disclosure guidelines, manuals and policy documents are necessary, it is the mindset and experience of those who do disclose work that is paramount.’
This week’s report by the CPS and police inspectorates recorded disastrous results for both the police and the CPS: 146 Crown Court files were looked at comprising 90 randomly selected and 56 selected by virtue of their poor outcome. In more than four out of ten cases (42%) the quality of handling disclosure by the police was deemed to be ‘poor’ as it was in one in three cases by the CPS (33%). Not one single file reviewed demonstrated ‘excellent’ handling of disclosure by either the police or the CPS.
‘A failure to deal effectively with disclosure has a corrosive effect on the criminal justice system,’ commented HM Chief Inspector Kevin McGinty. ‘It undermines the principles of a fair trial which is the foundation of our system. It adds delay, cost and increases the stress faced by witnesses, victims and defendants. The findings of this inspection will surprise no-one who works within the criminal justice system as there appears to be a culture of defeated acceptance that issues of disclosure will often only be dealt with at the last moment, if at all.’
Disclosure failings were ‘a leading cause of wrongful convictions and the police and CPS need to urgently improve their practices in this area, both in relation to future cases but also in acknowledging the impact of their past failings,’ commented Suzanne Gower, managing director of the Centre for Criminal Appeals (CCA) Managing Director. ‘At CCA, we frequently find our ability to investigate potential miscarriages of justice is unnecessarily hampered by the police and CPS not allowing access to the relevant documents even at that stage.’
These findings show how the current practices are at odds with the Attorney-General’s guidelines which state that the regime must be ‘scrupulously followed’; investigators and disclosure officers must be ‘fair and objective and must work together with prosecutors to ensure that their disclosure obligations are met’’; and ‘prosecutors must do all they can to facilitate proper disclosure’, including probing ‘actions taken by disclosure officers to ensure that disclosure officers to ensure that disclosure obligations are met.’
The report found that there were a number of contributing factors to the failings. Poor training was part of the problem, as inspectors found there was a general lack of understanding by police about the disclosure and scheduling process, and consequently police officers lacked confidence in their roles and responsibilities as disclosure officers. CPS employees also pointed to lack of resources and staffing as a cause claiming that they did not have the time to fill out the disclosure record sheet to the required standard. The CPS budget has been cut by 25% since 2010.
But the authors also recognised the cultural attitudes that contribute to the failure to properly disclose evidence, commenting that there ‘is a need for a change in attitude to ensure that disclosure is recognised as a crucial part of the criminal justice process and that it must be carried out to the appropriate standards.’
Eleanor is an aspiring barrister and currently a legal intern with Global Rights Compliance, an organisation committed to enhancing compliance with international human rights standards