Disclosure crisis ‘symptomatic of a criminal justice system under significant strain’, say MPs

Failures in disclosure had ‘persisted for far too long in clear sight of people working within the system’, the House of Commons’ justice committee has claimed. In a report published today calling for a clear statement from the police of a duty to follow ‘all lines of inquiry even when they point away from the suspect’, MPs found that the problems brought to the public’s attention by the Liam Allan case had been identified by at least six inquiries going back to 2011.

Such was the scale of the problem, the MPs called for ‘a concerted, system-wide and ongoing effort’ by the police and Crown Prosecution Service (CPS). The  report amounts to a damning criticism of the current Director of Public Prosecution, Alison Saunders’ handling of the crisis. According to the CPS, the number of cases stopped due to disclosure failures increased by 40% over the last four years. However, the MPs added that figures ‘did not present a total picture of the scale of disclosure errors’. While the high profile cases have mainly been sexual offences, according to the CPS only about one in 50 of the cases identified as having been stopped due to disclosure errors last year related to sex offences.

The report noted it was ‘disappointing’ that the same issues were raised by inquiries as far back as 2011, and ‘further disappointing’ that the Attorney General told the committee that he had been aware of problems going back as far as 1996 ‘but yet the problem had persisted and apparently worsened under his watch’. ‘We are also surprised and disappointed that the DPP, who should be closer to these problems on a day-to-day basis, does not appear to have pressed for more urgent action to address the worsening situation during her time in post,’ the MPs said. The report highlighted ‘insufficient focus and leadership’ in tackling the problem.

The committee chairman, Bob Neill, said the police and CPS regarded disclosure of evidence as an ‘administrative headache‘. ‘Disclosure failings are extremely damaging for those concerned and can have a permanent life-long impact,’ he told the BBC. ‘These failings have caused miscarriages of justice and – as the director of public prosecutions even admitted to us – some people have gone to prison as a result.’

Police culture
The committee took issue with what it called ‘police culture’. It found that ‘on balance’ most officers recognised their duty as a search for the truth ‘but that this has not been, and is still not, universal’. ‘It is fundamentally important that all police officers recognise both that they are searching for the truth; and that they have core disclosure duties which are central to the criminal justice process and are not merely an administrative add-on,’ the report said. To that end, the MPs called for an amendment to the College of Policing’s code of ethics ‘to ensure it is clear that police have a duty to follow all lines of inquiry, even when they point away from the suspect’.

The report quoted Angela Rafferty QC, chair of the Criminal Bar Association calling the disclosure process ‘a complete mess and has been a mess for many years’. ‘It has long been known among the legal profession: disclosure failures are not rare or isolated; they are systemic, routinely affecting cases of all kinds at every stage,’ wrote Fair Trials International in its submission.

The MPs saw the brewing crisis as ‘symptomatic of a criminal justice system under significant strain’. As the report noted, the CPS’s expenditure fell by 27% between 2009 and 2017 and its work force fell 11% in the last three years. It also recorded that the police workforce had been slashed by more than 19% since 2010.

The MPs highlighted the impact of cuts to the legal aid scheme. They said: ‘We are particularly concerned by evidence we have heard from defence practitioners about the lack of remuneration for reviewing unused material and the impact of changes to the Litigators’ Graduated Fee Scheme in reducing payment for reviewing pages of prosecution evidence.’

The law firm Chris Saltrese Solicitors noted that defence lawyers were no longer funded to wade through unused material. ‘Many responsible defence solicitors, including Chris Saltrese, can no longer accept legally aided defence work in these complex cases where the unused material may far outweigh the evidence relied on by the prosecution,’ it added

‘Legal aid lawyers deploy, through sheer professional pride, as many hours and as much work unpaid as we need to, to ensure that the show is kept on the road and that we can stand up and prosecute or defend a case, confident that the playing field of disclosure is level and fair.’
Joanna Hardy, barrister at Red Lion Chambers

Warnings ignored

• In 2011 the then Senior Presiding Judge, the Rt. Hon. Lord Justice Gross, led a review of disclosure in the Crown Court, which was ‘prompted by concerns as to the operation of the disclosure regime’.
• In 2012, the Rt. Hon. Lord Justice Treacy and the Rt. Hon. Lord Justice Gross returned to the issue, publishing their ‘Further review of disclosure in criminal proceedings: sanctions for disclosure failure’.
• In 2014, Lord Justice Gross reviewed disclosure in Magistrates’ Courts, noting that ‘misapplication of the disclosure procedure was raised with us by several groups with whom we consulted’.
• In 2015 Lord Justice Leveson’s review of efficiency in the CJS commented that ‘one of the major issues was the present failure of the police and the CPS to meet deadlines for disclosure’.
• In July 2017 Richard Horwell QC reported on the reasons for the collapse of the case of ‘Mouncher and others’, stating that ‘disclosure problems have blighted our criminal justice system for too long’.
• In July 2017 a report by HM Inspectorate of the Crown Prosecution Service (HMCPSI) and HM Inspectorate of Constabulary, Fire and Rescue Services (HMICFRS) highlighted ‘extensive issues’ with police and CPS handling of disclosure.

‘Problems with the practice of disclosure have persisted for far too long, in clear sight of people working within the system. Disclosure of unused material sits at the centre of every criminal justice case that goes through the courts and as such it is not an issue which can be isolated, ring fenced, or quickly resolved. These problems necessitate a concerted, system wide and ongoing effort by those involved, with clear leadership from the very top.’
House of Commons’ justice committee