What is so important about Disclosure in Criminal Proceedings

By 10/01/2018news
Text message evidence

Liam Allan was charged with 12 counts of rape and sexual assault, but his trial collapsed on day 3, the 15 December 2017, after police were ordered to hand over the mobile telephone evidence they held on a computer disk which contained 40,000 messages and revealed the alleged victim pestered Mr. Allan for “casual sex.”

This issue is critically important to all of us. It seems clear now that Mr. Allan was always innocent. The innocent person who has their life ruined by an unfair conviction is a terrible occurrence, but someday, perhaps, it could be you. The Rules set by Parliament, i.e. by all of us together, must be assiduously followed.

What you are reading in the newspapers is the tip of the iceberg.

In a recent report called “Making it Fair…” the Inspectorate of the Crown Prosecution Service (CPS) and Inspector of Constabulary published a report stating that in over half (55.5%) of the cases they reviewed there were obvious disclosure issues before a Defendant was charged. Prosecutors dealt fully with these issues in only one in four cases and in over a third (38.3%) of cases they were not dealt with at all.

Routine flaws with the process included the Police failing to make proper lists of material, the CPS failing to challenge poor quality schedules and, perhaps most worryingly, the revelation that disclosure by the police to the CPS of material that may undermine the Prosecution case or assist the defence case is rare!

What are the Rules the CPS and Police should follow?

The rules and guidance on disclosure in criminal cases before the Crown Court come from a number of sources, but the most important include the Criminal Procedure and Investigations Act 1996 (CPIA) and Part 15 of the Criminal Procedure Rules.

In short summary: –

  1. At the start of the case (usually in the Magistrate’s Court), the CPS will serve on the Defendant all the evidence it wishes to rely on at trial to prove their guilt.
  2. In the event the Defendant enters a not guilty plea, the CPS should disclose any other material it has to the Defendant (i.e., the material it does not wish to rely on) if it satisfies the test set out in Section 3 CPIA which states that such material must be disclosed if it: –

..might reasonably be considered capable of undermining the case for the Prosecution … or of assisting the case for the accused.

Examples of this type of material include:

  • previous convictions of Prosecution witnesses;
  • statements or other evidence collected which support the Defendant’s account;
  • documents which support the Defendant’s case, such as the texts from the rape complainant in the trial of Liam Allan showing she wanted and enjoyed the sex she later claimed was non-consensual.

Once the CPS has made its initial disclosure, the Defendant may file what is known as a “Defence Statement” which sets out the general nature of the defence and indicates matters of fact and law with which the Defendant takes issue.

Once the Defence Statement has been provided, the CPS must review its initial disclosure of unused material and determine if there is any further unused material in its possession which, in the light of the matters raised in the Defence Statement, the CPS now thinks might be deemed capable of undermining the case for the Prosecution or of assisting the Defendant’s case.

In other words, in Mr. Allan’s case, the police and the CPS would have had two bites at the cherry to get their disclosure obligations right.

The future

The CPS and the police are now, somewhat predictably, and disappointingly, blaming their failures on funding, but that is complete nonsense.

For those of us who have been around for a while, the Prosecution seems to have always had problems fulfilling its Disclosure obligations.

The Right Honourable Lord Justice Gross published a review of disclosure in criminal proceedings in September 2011 stating: –

Improvements in disclosure must – and can only – be prosecution led or driven. To achieve such improvements, it is essential that the Prosecution takes a grip on the case and its disclosure requirements from the very outset of the investigation.

Of course, if the police and CPS want to support their argument that their current failings are related to funding, they should produce their previous representations to the Ministry of Justice that funding is affecting their ability to make disclosure and ensure fair criminal trials – but do not hold your breath waiting for disclosure of that evidence either.

In my view the only answer, following years of consistent failure, is to enforce the Disclosure Rules thoroughly, by investigating each failure to ascertain whether it was an attempt to pervert the course of justice, and by making it clear in the terms of employment of both the Police and CPS, that such failures may lead to dismissal.

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