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Rebuilding confidence in disclosure in criminal cases: a consideration of the recent failures and how they can be avoided in future
As early as July 2017, a joint report by the Inspectorates of the Crown Prosecution Service and the Constabulary highlighted a number of systemic failings in relation to the handling and review of unused material in ‘volume’ cases in the crown court. Pointing out that similar concerns had already been raised in previous reports, the inspectors expressed particular concern about the following:
By November 2017, the CPS reported that it had made improvements to both casework and staffing levels; particularly in relation to cases involving rape and serious sexual offences – where it had increased its number of specialist prosecutors by 43% since 2015. However, this assurance did not allay ongoing concerns about disclosure practices. In December 2018, the Attorney General (AG), announced a review of the efficiency and effectiveness of disclosure in the criminal justice system (CJS).
Four days after that announcement, the Liam Allan case hit the headlines. As a result the CPS announced a review of all live rape and serious sexual assault cases (resulting in 47 cases being discontinued due to disclosure issues). There followed the publication of a National Disclosure Improvement Plan (NDIP), a collaboration between the CPS and the police. The House of Commons Justice Committee announced that it would conduct its own inquiry into disclosure to feed into the AG’s review. The findings of the review called for a large-scale change of culture within the CJS in relation to the handling and review of unused material. It also identified the need for urgent training for CPS staff and police officers as a priority.
While the sudden whirlwind of activity around disclosure was triggered by disclosure failings in a series of highly publicised cases, criminal practitioners and policy makers had been voicing concerns about the ever increasing risks to the integrity of the CJS for a number of years. Therefore, in our opinion, the recent disclosure failures cannot be viewed in isolation and need to be considered in the context of the current overall situation.
The cuts in government funding of the CJS, implemented year-on-year since 2010 (which will result in a 40% cut in real terms between 2011 and 2020), are well-documented. There are a number of examples where these cuts could have directly impacted on casework, including the handling of unused material. For example, as part of measures taken to reduce costs, the CPS, the police, and other CJS agencies significantly reduced their staffing levels through voluntary early severance schemes. It is not difficult to see how these kind of measures risk leaving the system exposed (at least temporarily) due to an increase in the workload of the remaining (much reduced) cadre of staff. Indeed, the new Director of Public Prosecutions, Max Hill QC, has recently acknowledged that the CPS cannot sustain any further budgetary cuts. On the defence side, as a result of changes to how cases are funded under a reducing legal aid budget, solicitors and barristers often find themselves undertaking time-consuming work reviewing unused material for which there is no remuneration.
Meanwhile, the volume of unused material across the majority of criminal cases has been growing at an unprecedented level. Both the AG and Justice Committee acknowledged that investigators and lawyers now face unprecedented challenges in dealing with the amount of digital material that now forms part of criminal investigations. Unused material can be voluminous in even run-of-the mill cases. This places further strains on those working within an already resource-depleted CJS. In our view, we risk finding ourselves in a similar position in future if the recommendations of the AG’s review are not accompanied by sustained levels of investment in the wider CJS.
The following measures would be a good start:
While none of these solutions are cost-neutral, they are perhaps unavoidable if trust and confidence in the CJS is to be maintained in the future. Any initial expenditure is likely to be saved many times over in the long term, due to fewer cases collapsing close to, or during, a trial. In the final analysis – what price can be put on justice?
Liam Allan was charged with multiple counts of rape and sexual assault. A download of the complainant’s phone was taken at the time her allegation was made. Liam and the complainant had previously been in a relationship.
Julia Smart is a criminal defence barrister at Furnival Chambers. She was named Barrister of the Year at The Lawyer Awards 2018 for her work as defence counsel for Liam Allan. Julia sits on the committee of the Association of Women Barristers and takes silk in March.
Lynne Townley is a barrister and lecturer on the BPTC at City Law School, University of London. She was an advocacy manager and Crown Advocate at the Crown Prosecution Service from 2003-2015. Lynne is the Chair of the Association of Women Barristers.
Criminal defence barrister at Furnival Chambers. Julia was named Barrister of the Year at The Lawyer Awards 2018 for her work as defence counsel for Liam Allan. Julia sits on the committee of the Association of Women Barristers.
Lynne Townley is a barrister and lecturer on the BPTC at City Law School, University of London. She is the Chair of the Association of Women Barristers. Twitter: @Lynne_Townley.
As early as July 2017, a joint report by the Inspectorates of the Crown Prosecution Service and the Constabulary highlighted a number of systemic failings in relation to the handling and review of unused material in ‘volume’ cases in the crown court. Pointing out that similar concerns had already been raised in previous reports, the inspectors expressed particular concern about the following:
By November 2017, the CPS reported that it had made improvements to both casework and staffing levels; particularly in relation to cases involving rape and serious sexual offences – where it had increased its number of specialist prosecutors by 43% since 2015. However, this assurance did not allay ongoing concerns about disclosure practices. In December 2018, the Attorney General (AG), announced a review of the efficiency and effectiveness of disclosure in the criminal justice system (CJS).
Four days after that announcement, the Liam Allan case hit the headlines. As a result the CPS announced a review of all live rape and serious sexual assault cases (resulting in 47 cases being discontinued due to disclosure issues). There followed the publication of a National Disclosure Improvement Plan (NDIP), a collaboration between the CPS and the police. The House of Commons Justice Committee announced that it would conduct its own inquiry into disclosure to feed into the AG’s review. The findings of the review called for a large-scale change of culture within the CJS in relation to the handling and review of unused material. It also identified the need for urgent training for CPS staff and police officers as a priority.
While the sudden whirlwind of activity around disclosure was triggered by disclosure failings in a series of highly publicised cases, criminal practitioners and policy makers had been voicing concerns about the ever increasing risks to the integrity of the CJS for a number of years. Therefore, in our opinion, the recent disclosure failures cannot be viewed in isolation and need to be considered in the context of the current overall situation.
The cuts in government funding of the CJS, implemented year-on-year since 2010 (which will result in a 40% cut in real terms between 2011 and 2020), are well-documented. There are a number of examples where these cuts could have directly impacted on casework, including the handling of unused material. For example, as part of measures taken to reduce costs, the CPS, the police, and other CJS agencies significantly reduced their staffing levels through voluntary early severance schemes. It is not difficult to see how these kind of measures risk leaving the system exposed (at least temporarily) due to an increase in the workload of the remaining (much reduced) cadre of staff. Indeed, the new Director of Public Prosecutions, Max Hill QC, has recently acknowledged that the CPS cannot sustain any further budgetary cuts. On the defence side, as a result of changes to how cases are funded under a reducing legal aid budget, solicitors and barristers often find themselves undertaking time-consuming work reviewing unused material for which there is no remuneration.
Meanwhile, the volume of unused material across the majority of criminal cases has been growing at an unprecedented level. Both the AG and Justice Committee acknowledged that investigators and lawyers now face unprecedented challenges in dealing with the amount of digital material that now forms part of criminal investigations. Unused material can be voluminous in even run-of-the mill cases. This places further strains on those working within an already resource-depleted CJS. In our view, we risk finding ourselves in a similar position in future if the recommendations of the AG’s review are not accompanied by sustained levels of investment in the wider CJS.
The following measures would be a good start:
While none of these solutions are cost-neutral, they are perhaps unavoidable if trust and confidence in the CJS is to be maintained in the future. Any initial expenditure is likely to be saved many times over in the long term, due to fewer cases collapsing close to, or during, a trial. In the final analysis – what price can be put on justice?
Liam Allan was charged with multiple counts of rape and sexual assault. A download of the complainant’s phone was taken at the time her allegation was made. Liam and the complainant had previously been in a relationship.
Julia Smart is a criminal defence barrister at Furnival Chambers. She was named Barrister of the Year at The Lawyer Awards 2018 for her work as defence counsel for Liam Allan. Julia sits on the committee of the Association of Women Barristers and takes silk in March.
Lynne Townley is a barrister and lecturer on the BPTC at City Law School, University of London. She was an advocacy manager and Crown Advocate at the Crown Prosecution Service from 2003-2015. Lynne is the Chair of the Association of Women Barristers.
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