Why do we keep investing in failure?

A few days ago at a police station my colleague overheard three police officers discuss a case. One asked why the other officers bothered to do any formal interviews. ‘Just encourage the suspect to sign off on a ‘contemp note’ and you do don’t have to bother with all that,’ he swaggered. My sharp-eared colleague ripped into them all.

It reminded me about a similar conversation I had with another officer some years ago. ‘Why is it so quiet?’ I asked.  He laughed and said ‘because we have found a loophole that avoids having solicitors. We don’t need to call you if we interview ‘off station’. Nothing you can do about it’ .

He was right about the loophole but within six weeks of furious correspondence with the Home Office and ACPO (with the CLSA and Law Society backing and with support of such as Professor Ed Cape) we had closed that loophole and a revised code was issued making it mandatory to offer legal advice wherever the PACE interview took place. See here.

These incidents taught me two things.

Firstly, there is a culture abroad within the police force that is more interested in ‘the win’ than any duty to justice. That is why the recent non-disclosure of evidence cases, with near miscarriages of justice, do not surprise me in the least.

The second thing the incident taught me is that despite the odds it is possible to confront major problems and affect change. I sometimes think back to that police office boasting about how he and his colleagues circumvented the right of a suspect to legal advice and wonder what he would say if he knew that indirectly this led to change in the legal code of practice.

How real is the police culture I describe? Some of the most impressive research available is that of Dr. Hannah Quirk, senior lecturer at the University of Manchester and author of The Significance of Culture in Criminal Procedure Reform: Why the Revised Disclosure Scheme Cannot Work. This was published a few years ago in ‘The International Journal of Evidence & Proof’ (here). Summarising her findings, she observed:

• The police having conflicting roles namely inquisitorial, investigative and adversarial.
• The police adopt ‘tactics, or ploys’ to achieve the ‘right result’ i.e. to ‘construct’ cases against those whom officers believe to be guilty. This results in an already selective approach to evidence filtered further by the CPIA provisions with unused material, not considered relevant to the pre-determined police case theory.
• Officers admitted their reluctance to give the defence potentially exculpatory evidence on a basis that ‘if the defence can’t find them why should the police help’.
• This selectivity in ‘sifting’ (my word) extends to deliberate manipulation of evidence in the manner the case file is put to CPS by the police. An example being given by a detective Sergeant, describing a witness having informed the police that they would ‘never recognise a perpetrator again’ as information not to be disclosed. The idea was to slip the undermining comment past the CPS in the hope it would remain not disclosed.

The scope of a defendant to have fair treatment on disclosure and to fight for this is diminishing with the ever growing obstacles legal aided clients find in their path to a fair trial. Some of this is due to excessive managerialism which often seems to impact more upon the defence. Delays and adjournments due to non-disclosure are not an aid to economic efficiency in legal aid work. Often the obstacle is more fundamental which is that legally aided clients increasingly are represented by lawyers who are starved of the resources they need.

My own view about the restrictions imposed upon the defence to limit ‘fishing expeditions’ is that these are in the main fictitious hobgoblins of judicial and MoJ imagination and designed to cover the inability or unwillingness of the prosecution to do their job and to avoid paying defence lawyers for doing theirs.  In any event so far as they are needed there are strong protections against any possible abuse by either side including the defence set out in the Attorney General guidelines (here).

As Aleksandra Jordanoska writes in her article Case management in complex fraud trials: actors and strategies in achieving procedural efficiency which can be found at the International Journal of Law in Context 2017:

‘[Protection] for the defendant’s position at the trial, and are currently threatened by the neoliberal UK governmental movements to reducing costs in the criminal justice system by cutting state-funded legal representation (Legal Aid). This is a poignant example of “stripping justice back to its bare bones’ due to concerns with performance and cost-effective targets. Though the Legal Aid cuts would principally affect marginalised defendants, the present research shows that well-off defendants prosecuted and tried in serious fraud cases are equally affected.’

The current attempt to restrict payment for page count is so inimical to the interest of Justice with the risk that criminal law firms will collapse or be prevented from taking on large and complex cases that involve more than 6,000 pages as they will not be paid for the additional work. Lawyers should be paid for this and for perusal of relevant unused material.

In the meantime there is the disclosure scandal resulting from the culturally driven poor police practices continue and often with tacit permission of the courts- see last year’s damning Chief Inspector of Constabulary report identifying widespread failures across the board by both police and prosecutors (here).

‘We found in this inspection that the police recording of both sensitive and non-sensitive material was lacking, which creates uncertainty and confusion for prosecutors. In turn, this poor practice was not being challenged by the CPS. This has resulted in a lack of confidence in the disclosure process on the part of the judiciary.’

According to a survey of Criminal Law Solicitors Association (CLSA) members, 91% of respondents described disclosure failure as occurring very often and 86% of respondents experienced reluctance from courts to deal supportively with defence advocates following such failures.

This failure leads to cases such as Liam Allan, the criminology student charged with 12 counts of rape and sexual assault whose trial collapsed after police were ordered to hand over phone records (here). All credit to prosecution barrister Jerry Hayes who revealed this disclosure failure to defence counsel after he discovered a computer disk containing 40,000 messages which revealed the alleged victim pestered Allan for ‘casual sex’.

This is what one very frank police officer said about the Allan case (here):

 ‘My argument here is that we cannot solely ascribe blame in this case, nor others like it, to “sheer incompetence”. There are more factors at play here than competence, and consequently, there are some problems which will not be solved by simply allowing more money to flow into the relevant budgets… Incidentally, as a further nail in the coffin of the “sheer incompetence” hypothesis, it is worth pondering very briefly if this explanation is at all consistent with the demonstrable fact that these failures in disclosure only ever go one way. Crime managers employ terms such as “positive outcomes” which connotatively presuppose that a charge following an investigation is the right outcome. Official crime reports and investigation logs refer to suspects as “offenders” before conviction, charge or even interview.’

The present evidential division of labour between the police and CPS is revealed by the research and from the evidence of our daily experience. It creates confusion and a vacuum of accountability between the police and the CPS. They ‘bounce’ the blame back and forth between them and the court is often at a loss to know where the true fault lies. The disclosure scheme is dependent upon the accurate scheduling and classification of material by an ‘often relatively inexperienced investigative officer perfunctorily trained for the purpose’ and poor schedules are not challenged by the Crown Prosecution Service. ‘The disclosure provisions of the CPIA, as with so much recent criminal justice policy, attacked a crime control chimera of criminals exploiting due process protections to escape justice,’ wrote Dr Hannah Quirk.

For all the scepticism about the CPS being over adversarial, I believe that it would be easier to inculcate that service rather than the police with the equivalent ethos of the Bar Code of Conduct which has provided a reasonably effective safeguard to underpin the CPIA disclosure regime.

My recommendations:

1. Why do we permit the police to sift and deal with the disclosure of evidence? The police should play to their strengths and use their skills to investigate and prevent crime. Purely evidential matters should be passed to the CPS.
2. The resources involved currently in the disclosure process should be reallocated from the police (who hate this work) to the CPS.
3. The focus of the CPS should mainly be upon those matters where it is clear the case will be contested, or which are indictable-only and lastly where a remand in custody is sought.
4. Most cases before the Magistrates Courts are guilty pleas. The role of the CPS lawyer in the majority of guilty plea cases is to read out ‘parrot fashion’ a police streamline file plus criminal records which the legal advisor and the now the bench itself have available on their computer. Why are we paying expensive lawyers to read pieces of paper or electronic files? The police used to prosecute without the CPS. In fact, now with technology there needs to be no prosecution physical presence in court for most guilty pleas (subject to point three). If an equivocal plea or the case is otherwise complex, it can be transferred to a CPS case management court. This will save millions and free up the CPS lawyers to prepare for trial and deal with disclosure.
5. As a safeguard in the absence of CPS input on most guilty pleas, the duty solicitor must be made available to all defendants before entering a plea on all matters carrying imprisonment and must be provided with the streamlined file to ensure the evidence both fits and supports the charge. Legal advisors must encourage such consultation but as a fail-safe should be trained to ensure the plea is appropriate and not equivocal. This may need more than one duty solicitor on busy court days.
6. The CPS will deal with all not guilty matters at the magistrates court (including the use of qualified agents). They will also deal with all not guilty IDPC and subsequent disclosure issues. This will involve a transfer of resources that used to fund the police carrying out that role. The police will be instructed by the CPS (like a US District Attorney) should further evidence need to be sought or inquires made.
   This I do not believe will require primary legislation as under S 23 (2) Criminal Procedure and Investigations Act 1996 the Code of practice provides the code ‘may’ provide that a police officer (a) must carry out a prescribed activity which the code requires etc. It is possible for an amended or fresh code to provide for a prosecution lawyer to undertake the same disclosure role. If it is considered that amending legislation is needed I cannot imagine that proving complex or controversial.
7. It has been reported in a number of research sources that the disclosure performance of the CPS is not quite as independent as it should be. There can be a too adversarial approach to disclosure when compared say to the independent bar when the latter are prosecuting.  Until the CPS is independently verified as complying with an equivalent code of conduct as the independent bar in the handling of disclosure, I would suggest that all Crown Court cases for prosecution are in the short term the subject of instructions to independent counsel. In this way those fears raised will soon be demonstrably allayed as the CPS develop the same ethos as the independent Bar so admirably demonstrated by Prosecution barrister Jerry Hayes in the Allen case referred to above.

This shift and change in responsibility and resources will enable the police to concentrate on their core function of catching criminals and providing evidence to Crown lawyers to prove the guilt of those apprehended to that satisfaction of the court. It will enable the CPS lawyers to focus on mainly not guilty trials. It will create a more collegiate, less fraught approach between prosecution and defence lawyers in preliminary stages as confidence is re-built in the disclosure process, leaving them each free to focus the adversarial process at the trial. It will enhance the status of the duty solicitor who should more properly than the police or CPS be the gate-keeper to ensure the evidence fits and matches the charges. It will save a huge amount of money provided it is not syphoned away.

First published on January 15, 2018