Two very interesting reports have been published in the UK, both detailing the continuing crisis in disclosure, which is key to a just criminal process and crucial in ensuring a fair trial and preventing miscarriages of justice. Yet numerous reports and reviews always find disclosure to be a serious problem among the police and prosecuting authorities (the Crown Prosecution Service (CPS) in England and Wales).
Firstly, in a joint report by Her Majesty’s Inspectorate of Constabulary (a national oversight body for the police) and Her Majesty’s Crown Prosecution Service Inspectorate (providing oversight of the CPS), the findings are yet again damning:
“The inspection found that police scheduling (the process of recording details of both sensitive and non-sensitive material) is routinely poor, while revelation by the police to the prosecutor of material that may undermine the prosecution case or assist the defence case is rare. Prosecutors fail to challenge poor quality schedules and in turn provide little or no input to the police. Neither party is managing sensitive material effectively and prosecutors are failing to manage ongoing disclosure. To compound matters, the auditing process surrounding disclosure decision-making falls far below any acceptable standard of performance. The failure to grip disclosure issues early often leads to chaotic scenes later outside the courtroom, where last minute and often unauthorised disclosure between counsel, unnecessary adjournments and – ultimately – discontinued cases, are common occurrences. This is likely to reflect badly on the criminal justice system in the eyes of victims and witnesses.”
As well as a series of pragmatic recommendations, the report authors refer to a needed change in ‘culture’: “However, just as importantly as responding to each issue, 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.”
The Criminal Cases Review Commission reported in their 2015/2016 Annual Report that they have seen a “steady stream” of miscarriages where the primary cause was a failure to disclose exculpatory evidence to the defence. The inspection concentrated upon ‘volume’ crime – as the focus on serious crime means that those cases considered less serious are often given a low priority – yet individuals are routinely remanded in custody, convicted and imprisoned wrongly on ‘minor’ charges. Read the Inspectorate report here: MAKING IT FAIR: A JOINT INSPECTION OF THE DISCLOSURE OF UNUSED MATERIAL IN VOLUME CROWN COURT CASES, JULY 2017.
Secondly, the case of the Cardiff Three – one of the most notorious miscarriages of justice in British history, led to the trial of 8 police officers for their role in the arrest and prosecution of five men (three were convicted). However, the case collapsed after crucial evidence went ‘missing’. An inquiry into the collapsed trial has now reported after 2 years, and concluded that the collapse (the missing evidence subsequently surfaced after the police staff were formally acquitted) was due to ‘human error’ and not ‘wickedness’. The report makes 17 recommendations for the disclosure process – the author stating: “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 disclosure work that is paramount.”
Read the full report here: Mouncher investigation report, July 2017
Media reports here: Trial of Cardiff Three police collapsed due to human error, inquiry finds