The criminal law disclosure process – why is the system failing?

Prosecutors’ disclosure obligations arise from the fundamental right to a fair trial. Eight centuries after the Magna Carta, it is widely acknowledged that the UK’s criminal disclosure process is failing.  There is too often a failure to understand and apply the rules of disclosure, and a lack of communication between investigators and prosecutors. At best, evidence that ought to be disclosed inadvertently falls through the cracks – being missed, dismissed or forgotten. At worst, material is deliberately withheld.

The principle is straightforward. The disclosure process asks police and prosecutors to shoot themselves in the foot, by assisting the defence. They should be proud to do so. For, in so doing, they are upholding faith in the justice system itself, and help to ensure that the innocent are not wrongfully convicted. The application of the principle has unfortunately been anything but simple.

On 23 January 2019, the Attorney General, Geoffrey Cox QC, appeared before the House of Commons Justice Committee and theatrically vowed to “crack the whip” to fix the disclosure system.  Mr Cox told the committee, “I intend to hold to account each responsible individual … we don’t see this blemish rise again to stain our criminal justice system”. The oratory of the Attorney General appears sincere. We must welcome his making this one of his central priorities.

The fundamental principle of natural justice, audi alteram partem requires that both sides be heard. This clearly cannot happen if vital evidence is withheld from the defence. The Attorney General’s guidelines state that prosecutors must disclose material that “might reasonably be considered capable of undermining the prosecution case or assisting the case for accused”.

Vast texts and manuals explain the nuances of the law on disclosure to prosecutors and investigators. Seemingly, all this has been insufficient.  A 2017 CPS inspectorate report found that prosecutors had fully complied with their disclosure duties in just 56.9% of cases inspected. Amazingly, this represented an improvement on the previous such report, where disclosure duties were complied with in only 34.8% of cases.

Defence lawyers are all too aware of the impact that such widespread failures to disclose evidence can have on cases. Anecdotal evidence suggests many clients have suffered as a result of these deficiencies in terms of disclosure.  We have recently seen cases collapse, and convictions overturned, because the police and prosecutors have not complied with their disclosure obligations.

The 2017 trial of London student Liam Allan, accused of rape, collapsed after it emerged that crucial exculpatory messages were not disclosed. A joint review of that case by the Met and the CPS blamed “a combination of error, lack of challenge, and lack of knowledge.” This is unacceptable.  

Other recent examples from our own caseload include two HMRC cases, which had to be abandoned mid-trial once vast amounts of highly relevant documents emerged, which had not been properly recorded – let alone disclosed.  A conspiracy to murder case also recently went all the way to the Court of Appeal, and on to a second trial. Yet the case was ultimately abandoned when crucial evidence as to the locations of the defendants was revealed – even though police had given assurances such evidence did not exist.

In 2017 alone, 916 defendants had charges dropped due to a failure to disclose evidence. The financial cost of such cases runs in to the millions. The costs to those affected – and to the public’s faith in the justice system – are less easy to calculate. Something has clearly gone wrong and government ministers could start by simply asking: why is the system failing?

The most obvious remedies include greater prosecution involvement from the outset. All too often, prosecution lawyers receive evidence at the last moment. Evidence that passes the test for disclosure must be identified far earlier in the process.  Yet such measures will only be effective once adequate knowledge and resources are in place to enable police and prosecutors trawl through volumes evidence and properly assess it.

Mr Cox proposes to “hold to account each responsible individual”, yet the problem is largely systemic. Police and prosecutors often find themselves overworked, overlooked and under-resourced, having suffered severe cuts to funding and personnel.

Years of cutbacks to police and the CPS have taken a grave toll.  Over the past decade, the total number of police in England and Wales has declined by some 20,000 – a fall of approximately 15% in a decade.  The CPS has had its budget has been slashed by over 30% since 2010, resulting in thousands of fewer staff to handle cases.  Set against a background of rising violent crime, it is little wonder if police and prosecutors sometimes struggle to properly review all the available evidence for disclosure.

It is not just the prosecutors who are underfunded, however. Radical cuts to legal aid for defence lawyers have also put serious pressure on the criminal justice system. With less time to review cases, and to deeply analyse evidence, its difficult for defence lawyers to fulfil their role in detecting prosecution errors and ensuring that disclosure obligations are fully met.

Our failing disclosure system is but one symptom of a wider and deeper malaise. In order to remedy it, there must be adequate investment in both training and staffing for police and prosecutors and adequate legal aid funding for defence lawyers.

Better training is vital to ensure that the original investigators fully understand their disclosure obligations and how to apply them in practice. Investigators are there to independently investigate and follow the evidence. They should cherish their crucial function, and be confident to shine the light of truth on their cases. Officers can then feel able to confidently give lawyers assurances that they have fully complied with their disclosure duties.

To give weight to such assurances, disclosure officers in criminal cases could be required to sign a sworn witness statement stating that their disclosure duties have been fully complied with. Introducing such a requirement – along with adequate resources – would back with action the powerful words of the Attorney General and his demands for the restoration of responsibility, accountability and credibility. Any future failings would then surely result in Mr. Cox’s infamous whip being cracked.

Marlon Grossman is a Solicitor at specialist criminal defence law firm, Stokoe Partnership Solicitors