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Legal Minds

11 January 2018 / by / in

Prosecution Disclosure Failures Prejudicing a Fair Trial

The two recent highly publicised cases involving failures in the disclosure process in criminal trials for rape (Liam Allen and Isaac Itiary) highlighted the very problems which had been the focus of recommendations made in Making it Fair – A Joint Inspection of the Disclosure of Unused Material in Volume Crown Court Cases – HMCPSI and HMCI (July 2017). In their report the joint authors identified systemic failings in the disclosure process for cases in the Crown Court and that these failings were largely tolerated with the parties involved looking for ad hoc workarounds rather than looking to solve the root problems.

In my article – A level Playing Field on Disclosure (August 2017), I welcomed the recommendations but expressed some scepticism as to whether the chronically under-resourced criminal justice system would be capable of implementing them. The two recent cases highlight very clearly how a miscarriage of justice could ensue if material which is clearly supportive of the defence case and/or undermines the prosecution case is not disclosed to the defence in accordance with the requirements of the CPIA (1996).

Whether the failures in either of the two cases were the product of poor training and/or inadequate communication between the police and the CPS will presumably be a matter for further investigation. However, we should not be delaying the implementation of the recommendations made in July 2017 pending the outcome of a review of outstanding rape prosecutions as promised by the Metropolitan Police in the wake of the recent publicity. Those recommendations were made by agencies responsible for overseeing both the police and the CPS. It is simply disingenuous of Commander Richard Smith of the Metropolitan Police to state that “We don’t have a systemic issue around disclosure failures” (see “Metropolitan Police deny systemic failure of disclosure in Rape Cases” – The Guardian 20 December 2017) when all the available research – including their own – suggests that the opposite is true.

It also flies in the face of the common experience of criminal defence lawyers. Time and again we identify failures on the part of the police/CPS to properly review unused material and apply the CPIA disclosure criteria. In many instances this leads to extremely late disclosure of unused material which is of fundamental importance to the defence – in one instance in my own experience this happened literally at the close of the prosecution case.

Put simply these failures should not be tolerated. The recommendations of Making it Fair should be implemented as a matter of highest priority. We pride ourselves in this country on having a fair and transparent criminal justice system. However, cases such as Allen and Itiary call this into question. If the full implementation of the changes would require extra resources being deployed then so be it. This should extend, incidentally, to the proper funding of criminal defence lawyers. As Legal Aid for criminal defence is consistently cut, the quality of representation will inevitably decline and the “policing” of disclosure failures will diminish accordingly.

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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).