Friday 18 August 2017

Disclosure ~ an on-going problem in criminal cases

The unhappy state of affairs regarding Disclosure is yet again highlighted by a survey being undertaken by the Criminal Law Solicitors Association (CLSA) - CLSA Disclosure Survey.

Disclosure problems appear to beset the criminal justice system - previous recent posts - Stories from the Criminal Courts (6th August) and 19th July 2017 - Making it fair - the crucial matter of disclosure in criminal cases

The Law Society Gazette 17th August - Beleagured solicitors highlight ongoing disclosure fight - has also looked at the on-going problem of disclosure and, last year, Kevin McGinty (HM chief inspector of the CPS) informed the House of Commons Justice Select Committee of disclosure problems (Law Society Gazette 6th July 2016).

The CLSA survey, which opened on Monday, has already attracted 400 responses. The figure is rising steadily, according to solicitor Robin Murray, association committee member and former vice-chair. Mr Murray said that the findings show that  'it is actually the Crown Prosecution Service and the courts that are bringing the system of justice into disrepute'.  He said: 'The survey shows the Crown prosecution fail, on a daily basis, to do what the law requires them to, which is to serve the evidence so the defendant knows the case against them.  'When these failings are brought to the attention of the courts time and again, the courts fail to hold the prosecution to account, which means either a waste of public money because cases are adjourned unnecessarily or, far more seriously, the defence are put under pressure to proceed without reasonable notice of recently served evidence.'

It should be a matter of public concern that courts are failing to "hold the prosecution to account" and being seen as biased against the defence. Above all, a fair trial requires that cases be dealt with by an impartial tribunal.

The criminal court system has seen an extensive closure programme of Magistrates' Courts and pressures exist for the remaining courts to sit on an extended hours basis to deal with their workload.  It also appears that, in these times of "austerity", the Crown Prosecution Service (CPS) has serious issues regarding resources.  Nonetheless, disclosure exists to achieve a fair trial for defendants and they are entitled to know, in reasonable time, the details of the case against them. Fairness in the criminal justice process demands no less.

The CLSA survey raises problems the defence are experiencing.  There are also obligations on the defence and these have been the subject of a considerable number of cases over recent years such as the Chorley Justices case in 2006 where the High Court referred to the Criminal Procedure Rules requiring that criminal cases be dealt with justly - (see especially paras. 24 to 26).  The High Court sent out a clear message that - "The days of ambushing and taking last-minute technical points are gone. They are not consistent with the overriding objective of deciding cases justly, acquitting the innocent and convicting the guilty."

That message was plainly not intended to put the court in a position where it ceased to be impartial between the prosecution and the defence and it cannot be doubted that the CLSA survey (and other reports) raise serious concern about the stance being adopted by some courts.

Law Society Gazette - Protocol for criminal defence on prosecution failures

The Mouncher investigation:

Richard Horwell QC, who investigated the collapse of a trial following the 1988 murder of Lynette White, said disclosure problems had blighted the criminal justice system for too long - Law Society Gazette 17th July 2017 and see Mouncher investigation report - July 2017.

Previous post - 19th July 2017:

Making it fair - the crucial matter of disclosure in criminal cases- looking at the Criminal Justice Inspectorates   "Making it Fair"

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