The recent admission by outgoing Director of Public Prosecutions Alison Saunders that the Crown Prosecution Service (CPS) has struggled to cope with the amount of digital evidence now available on smart phones will come as little surprise to those regularly practising in the criminal courts. Last year, 916 people had charges dropped over a failure to disclose evidence – up from 537 in 2014-15 – as disclosure failings have developed into a systemic problem (BBC figures).

The high profile collapse of several trials have at last brought these disclosure failings into the public realm and prompted a CPS review of rape and serious sexual offences cases. The review, published on 5 June 2018, looked at 3,637 serious sexual offence cases to ensure that disclosure was being managed effectively. Forty seven of those prosecutions were stopped as a result due to issues with the disclosure of unused material.

Ms Saunders has apologised for the mistakes of the past and insisted that the introduction of new safeguards meant similar mistakes would not occur in the future. For many, however, these assurances are too little, too late. Having experience of these cases we, along with leading practitioners, express concerns that there may be people in custody awaiting trial or serving sentences who should not be there at all. For those working at the coal face it has been clear for some time that evidence is not being disclosed early enough, if at all, leading to the risk of unsafe convictions.

Uprooting the fundamental problems

The roots of proper disclosure lie in disclosure officers ensuring all material gathered as part of an investigation is properly scheduled on the appropriate sensitive or non-sensitive schedule of unused material. In the report Making It Fair, published in July 2017, the HM Crown Prosecution Service Inspectorate and HM Inspector of Constabulary found that the police scheduling of material is ‘routinely poor’ and ‘revelation by the police to the prosecutor of material which may undermine the prosecution case or assist the defence case is rare’. Work with police focus groups found ‘a basic lack of knowledge by police of the disclosure and scheduling process’ with officers adopting a ‘very narrow approach to relevancy’. There appears to be a fundamental misunderstanding amongst police forces that all material must not only be placed on the appropriate schedule but also with an adequate description so the schedules can be scrutinised by prosecutors and defence teams.

Practitioners will be all too familiar with receiving woefully short MG6C schedules in complex or multi-handed cases which patently do not represent the volume of material that has been generated as part of the investigation. Prosecutors interviewed by the investigators for Making it Fair felt that police knowledge of disclosure was ‘extremely poor’ and that standards were worsening. There are clear failings at the police end which can only be addressed with further training as to the critical importance of the disclosure system and officers’ roles within it. It is little wonder that disclosure failings are occurring when the CPS are passed schedules which are incomplete and lack proper descriptions of the material contained on them.

However, the failures cannot be attributed only to the police. There has been an increasing abrogation of disclosure decisions by the CPS to investigating officers who fundamentally do not understand the law on disclosure. Among prosecutors, the Making it Fair investigators identified that there was a ‘culture of acceptance’ of inadequate disclosure schedules and they do not challenge poor quality schedules or provide sufficient input to the police during the relevant processes. This deeply flawed approach has resulted in reviewing lawyers signing off inadequate schedules of unused material leading to crucial evidence not being disclosed.

It is, of course, open to the defence to apply for disclosure under s 8 of the Criminal Procedure and Investigations Act 1996. The difficulty with this approach, however, is that s 8 is engaged where the accused has reasonable cause to believe that there is prosecution material which is required by s 7A to be disclosed to him and it is material which is in the prosecutor’s possession or which the prosecutor has or must be given a copy of for inspection. If disclosure schedules are inadequate it creates a significant barrier for the defence to applying for disclosure of material as neither the CPS nor the defence may be aware the material exists.

Take this example at Birmingham Crown Court

A concerning example of the defence unawareness of crucial material came to the fore in a recent drugs conspiracy at Birmingham Crown Court. Unusually, the prosecution called police officers, a CPS lawyer and previous prosecution counsel to give evidence to account for their respective decisions, during a Voir Dire in a case where the prosecution was halted as a result of identified police and CPS disclosure failures. HHJ Laird QC ruled upon the abuse of process application made by concluding that the disclosure failings ‘cannot simply be explained by error, misjudgment or incompetence’. The judge ruled that ‘in the prosecuting team a disregard for its duty in relation to disclosure had been allowed to fester. The usual checks and balances within a prosecuting team were not operational. The result was an unfair trial.’

Is the Improvement Plan sustainable?

The Joint National Disclosure Improvement Plan was published on 26 January 2018 by the National Police Chiefs’ Council, CPS and the College of Policing. It recognises that disclosure issues are systemic and proper disclosure has been made more difficult by the voluminous digital material potentially created in even the most straight forward of criminal investigations. The Plan seeks to make sustainable change to the way the prosecution exercise their duties of disclosure. Its range of measures include:

the extension of Disclosure Management Documents to all RASSO and Complex Crown Court cases – these documents are used to outline the prosecution approach to disclosure for the court and the defence, and ensure disclosure issues are dealt with at an early stage;
the introduction of Disclosure Champions in all CPS Crown Court and Magistrates’ Court teams to support the Chief Crown Prosecutors to complete disclosure assurance, take forward strategic discussions with investigators and support training in their areas;
new training for all forces introduced by the College of Policing, taking into account the ongoing and significant changes in disclosure practise;
a new procedure for officers to identify reasonable lines of enquiry when submitting a charging decision request to the CPS; and
a new protocol between the CPS and police on the identification, handling and disclosure of third party material.

"The failures cannot be attributed only to the police. There has been an increasing abrogation of disclosure decisions by the CPS to investigating officers who fundamentally do not understand the law on disclosure"

Mandatory disclosure training to all prosecutors, minimum standards on quality and content for MG6C disclosure schedules and the development of specialist disclosure experts in every police force available to conduct sampling, local training and assistance in complex cases are also proposed.

Funding a complete system overhaul

The Attorney General’s proposed steps for tackling disclosure issues are a tiny step in the correct direction. However, with the justice system creaking closer to breaking point it is plain a complete overhaul of the disclosure system is needed. Successive years of funding cuts to the criminal justice system have plainly created a system that is under staffed, under resourced and at breaking point. It is hoped the Joint National Disclosure Improvement Plan will help to prevent disclosure issues arising in the first place and remedy them as swiftly as possible when they do. As with all areas of the chronically underfunded justice system the success of the Joint National Disclosure Improvement Plan may be contingent on sufficient funding being identified and made available. The Criminal Cases Review Commission has stated: ‘The single most frequent cause [of miscarriages of justice] continues to be failure to disclose to the defence information which could have assisted the accused’ – the real question is not, therefore, whether the government can afford to properly fund the criminal justice system but whether it can afford not to?

Contributors Narita Bahra and Fiona Roberston, 2 Hare Court

The long road to re-building confidence

‘My priority, working closely with the police, is to put in place effective measures that bring about a sea-change in how disclosure is managed so that complainants and suspects alike can have confidence that every case is fair.’

Director of Public Prosecutions, Alison Saunders CBE

BBC’s File on 4 found that only 18 police forces have accreditation for digital forensics, for some of the procedures they carry out. None has full accreditation (although all forces are working towards it). The Metropolitan Police, for example, isn’t accredited for video, phone and computer analysis – yet carries out work in this field.

Forensic Science Regulator Dr Gill Tully told the programme: ‘Until organisations have the right quality standards then it’s more likely that they’ll make errors and less likely they’ll find the errors... If we are persistently seeing failures to meet the standards then my view will become that it would be better to outsource all of the work.’

Dr Tully pointed to the impact of successive competitive tendering processes: ‘Whilst being very successful on the one hand in reducing expenditure… we have to make sure we’re not only looking at what’s cheap for police but what’s good value for the end-to-end criminal justice system.’