Monday 6 August 2018

Pressing issues - (2) - Disclosure

In 2017, Liam Allan, a criminology student at Greenwich University, was charged with six counts of rape and six of sexual assault.  During the trial, the contents came to light of mobile telephone messages sent by the complainant including messages asking Mr Allan for sex.  This material had been held electronically by the Police even though Mr Allan had maintained all along that the sex was consensual.  The outcome was that prosecuting counsel (Mr Jerry Hayes) offered no evidence against Mr Allan and the case against him ended.

The investigative role of the Police gives them almost a monopoly over the collection of information.  Several lines of enquiry might have been followed and a considerable volume of information obtained but the prosecution may not need to use all of it in a particular case.   There is often so-called "UNUSED" material and it is possible that there is unused material which is capable of of undermining the case for the prosecution against the accused, or of assisting the case for the accused.

Previous posts have looked at this subject - 19 July 2017 Making it fair: The crucial matter of disclosure in criminal cases - 18 August 2017 Disclosure: an on-going problem in criminal cases - 30 August 2017 Disclosure survey: disturbing results emerge - 20 December 2017 R v Liam Allen: the crucial question of disclosure.

The statutory basis for disclosure is the Criminal Procedure and Investigations Act 1996 (CPIA) and the CPIA Code of Practice.

In 2013, the Attorney General issued guidelines regarding disclosure - HERE - and the Lord Chief Justice issued a Protocol on the disclosure of unused material in criminal cases.  The protocol is intended to complement the guidance produced by the Attorney General, and the two documents should be read together.

Serious concerns about the practical operation of disclosure continue to dog the criminal justice system.

Justice Inspectorates Report:

In July 2017, the Justice Inspectorates, issued an important joint report "Making it Fair" which highlighted concerns about disclosure. Previous post.


On 11 December 2017 the Attorney-General announced a review of  disclosure

The terms of reference are to review the efficiency and effectiveness of disclosure in the criminal justice system, including specifically how processes and policies are implemented by prosecution and defence practitioners, police officers and investigators.

The review team may consult private sector and representative bodies, academics and non-governmental organisations as appropriate, including through meeting groups of stakeholders, but will not publish a formal consultation or call for evidence.

National Disclosure Improvement Plan:

On 26 January 2018, the Crown Prosecution Service (CPS) issued a National Disclosure Improvement Plan.

Actions taken by the Police are summarised at College of Policing where it stated that  the CPS has established Disclosure Champions in all Crown Court and Magistrates' Court teams.  The Disclosure Manual for all Crown Prosecution Service prosecutors has been refreshed and training material reviewed to ensure that it is accurate and elements which were outdated have been removed. The Crown Prosecution Service is developing new mandatory training for all prosecutors on disclosure, which will be delivered by September 2018.the CPS have

The CPS Disclosure Manual may be viewed via this link.

House of Commons Justice Committee:

In July 2018, the Justice Committee issued its report on Disclosure - HERE.  The full report is HERE.

The committee did not recommend changes to the principles of disclosure but found that failings had arisen in the application of disclosure by police officers and prosecutors on the ground.

The Committee stated there should be a shift in culture towards viewing disclosure as a core justice duty, and not an administrative add-on.

There needs to be the right skills and technology to review large volumes of material that are now routinely collected by the police and clear guidelines on handling sensitive material.

The report concluded that the Government must consider whether funding across the system is sufficient to ensure a good disclosure regime. Delayed and collapsed trials that result from disclosure errors only service to put a further strain on already tight resources.

The Committee did not pull its punches in stating its conclusions and recommendations.

"Problems with the practice of disclosure have persisted for far too long, in clear sight of people working within the system. Disclosure of unused material sits at the centre of every criminal justice case that goes through the courts and as such it is not an issue which can be isolated, ring fenced, or quickly resolved. These problems necessitate a concerted, system wide and ongoing effort by those involved, with clear leadership from the very top. It is disappointing that we have heard the same issues raised throughout this inquiry as have been noted by inquiries as far back as 2011, and it is further disappointing that the Attorney General in place at the time of inquiry stated to us that he was aware of problems going back as far as 1996 but yet the problem had persisted and apparently worsened under his watch. We are also surprised and disappointed that the DPP, who should be closer to these problems on a day-to-day basis, does not appear to have pressed for more urgent action to address the worsening situation during her time in post."

The Attorney-Generalship changed on 9 July 2018 when Jeremy Wright QC MP became Secretary of State for Digital, Culture, Media and Sport and  Geoffrey Cox QC MP became Attorney-General.  In April 2018 it was announced that Mrs Alison Saunders would step down at the end of her term as Director of Public Prosecutions (DPP).  From 1st November, she will be replaced by Mr Max Hill QC.

Criminal Procedure Rules:

Criminal Procedure Rules - Par 15 - deal with disclosure - HERE 

Efficiency in criminal proceedings:

Sir Brian Leveson's Efficiency in Criminal Proceedings Report (23 January 2015) at para 5.4 drew attention to a number of reports on disclosure:

Gross, LJ, Review of disclosure in criminal proceedings (Judiciary of England and Wales, September 2011)

Gross LJ, TreacyLJ, Further review of disclosure in criminal proceedings: sanctions for disclosure failure (Judiciary of England and Wales, November 2012)

Gross LJ, HHJ Kinch, Howard Riddle (Chief Magistrate) Magistrates’ Court disclosure review (Judiciary of England and Wales, May 2014).  Annex A summarises the Principal disclosure responsibilities of parties in the CJS.  Annex B sets out the Prosecution disclosure process and legislative / guidance sources.

It was clearly hoped that the latter review would result in improvements in the Magistrates' Courts but this appears to be somewhat doubtful.  In an article at Minted Law, solicitor Robin Murray comments about on-going problems. - Disclosure abuse in the Magistrates' Courts and how to defeat a system determined to facilitate it - 1 August 2018.   He wrote:

" .. this article is going to concentrate on a familiar theme of mine. The seemingly extreme reluctance of our judiciary to apply their own Criminal Procedure rules. Forgive my recycling this concept again but our courts resemble those of the old Soviet Union which pays lip service to a criminal code (the Criminal procedure Rules) whilst aiding and abetting the prosecution to ignore them. That is only a marginal exaggeration as I shall demonstrate with reference to recent case law."

Legal Aid:

In July 2018, the Justice Committee issued a report on Criminal Legal Aid.  The committee said -

  • The pressure placed on defence lawyers to fulfil their professional obligations by reviewing increasing quantities of unused prosecution material is fundamentally unfair and likely to become unsustainable, and increasingly prejudicial to the defendant. We recommend that restoring legal aid payments for reviewing unused material above a certain page threshold be considered as part of the comprehensive and independent review of criminal legal aid that we have recommended above.

Disclosure is a pressing issue and problems continue despite the mounting volume of reports and reviews.  All of this reduces public confidence in the trial process. It is to be hoped that the interest taken by the Justice Committee will spur the system on to much-needed improvements.

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