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18 July 2018 / by / in

Disclosure failures are a continuing disgrace

A report from the HM Crown Prosecution Service Inspectorate published this week reinforces the conclusions of an earlier joint report by the Her Majesty’s Prison Service and Her Majesty’s Inspectorate of Constabulary that disclosure failures on the part of the police and the prosecution are endemic in our criminal justice system.

Making it Fair (A Joint Inspection of the Disclosure of Unused Material in Volume Crown Court Cases),published in July 2017, identified that “a culture of acceptance exists amongst the parties involved in the disclosure process, who look for ways of working around its failings rather than fixing the root problems”. It made eleven recommendations to the CPS and the police for improvement of the culture and procedures adopted in relation to the disclosure of unused material.

Two high profile rape prosecutions that faltered due to disclosure failures by the CPS/police (R v Allen and R v Itiary) illustrated how such inefficiencies had the potential to result in serious miscarriages of justice. Similar problems in the earlier prosecution of Oliver Mears prompted the Chief constable of the responsible police authority to observe that “We have had a cultural problem with disclosure, where it is too often seen by police officers as a thing to be done at the end of an investigation, becoming subsequent to, rather than integral to, the investigation. Changing this mind-set is an immediate challenge for us”.

In this week’s snappily titled report (report from the findings of the Area Assurance Programme (AAP) in 2016-17 and 2017-18) the CPS inspectorate analyses the results of inspections carried out over ten CPS areas across England & Wales. The report does not focus solely on disclosure and concludes that in many areas of their work there have been marked improvements. However, its conclusions in relation to disclosure will make chastening reading to the newly appointed Attorney General, Geoffrey Cox QC. Although as an experienced criminal barrister he will undoubtedly have personal experience of the failings set out therein.

The inspectorate reviewed the progress of cases through the magistrates’ courts and the Crown Court. They concluded that:

The police fully complied with their disclosure obligations in relation to unused material in 56.9% of cases. There was partial compliance in a further 36.7%. Successful cases and those which concluded in the magistrates’ courts showed higher compliance rates”.

The fact that full compliance was only found in just over half of the cases reviewed is truly alarming. The main reasons for non-compliance were broken down as follows:

• Poor descriptions of items on the unused material schedules
• Not supplying the right schedule
• Listing Items incorrectly
• Not disclosing previous convictions of a witness
• Not signing the appropriate declaration

There was little evidence of prosecutors identifying non-compliance and giving feedback to the police. Indeed their own compliance was little better than the police. Only 58.4% fully met the requirements with only 32.3 % of disclosure sheets being properly completed with actions and decisions fully noted. Of 429 cases that failed at the initial or continuing disclosure stages, eight demonstrated a consistent failure to identify material that undermined the prosecution case or assisted the defence throughout the history of the proceedings. Although no miscarriage of justice was seen to have resulted from these failures, one is tempted to observe “there but for the grace of God…

Such egregious failings should not be tolerated by any criminal justice system that aspires to be truly fair and transparent. It is time that the government tackled this issue head on. Hopefully the eminently qualified Mr Cox will prove to be just the man for the job.

Stephen Sharp

Steve is a highly experienced criminal lawyer specialising in white collar and business crime for over 25 years. He has defended in cases brought by the Serious Fraud Office (SFO), HM Revenue and Customs, Department of Business Innovation and Skills (BIS), the Economic Crime Unit (ECU), NHS Counter-Fraud Service and the Crown Prosecution Service (CPS).

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