Legal News

In summer 2017 a report published by her Majesty’s Crown Prosecution Service Inspectorate contained scathing criticism of the police and the prosecution concerning the disclosure process to the defence.

The process of disclosure requires the police to identify what is termed as non-sensitive unused material. The officer in charge of the investigation is normally tasked with this and is named the “disclosure officer.” The difficulty with this is that officers do not appreciate their role, with many failing to schedule material correctly, according to the report. There was, at the time of writing, a view shared by 46.3% of prosecutors and defence practitioners, that the schedules were poorly prepared.

The inspectorate stated;

“Our findings show that the police do not understand what constitutes sensitive material and are routinely not scheduling sensitive material correctly.”

Below is a case study taken from the Inspectorate report;

“A defendant in a case of robbery refuted his guilt from the outset, claiming that the victim was a violent drug dealer who had actually robbed him. Neither at the point of charge nor upon receipt of the defence statement did the police or CPS make any enquiries to ascertain whether any intelligence existed to support his claim. The Crown Advocate subsequently reviewed the case just before trial, contacted police and received intelligence that confirmed the claims of the accused. As a result, the prosecution offered no evidence at court and the case was dismissed. The defendant had been remanded in custody for over six months and the defence subsequently submitted a formal complaint to the directorate of professional standards of the relevant force, on the grounds that crucial disclosure that undermined the prosecution case had not been forthcoming.”

Almost 6 months on from this we have recently had two cases of sexual assault. Liam Allan, who was a student accused of rape had his case dropped after 40,000 messages were disclosed, where the victim had requested meetings of casual sex, according to reports. According to the BBC, another case has been discontinued involving a man accused of raping a child under 16, on the basis of disclosure also.

Some have insisted that the police force are under pressure as a result of funding cuts and these outcomes are as a result of that. There may be some truth in that but here we are dealing with real lives and a real injustice. However, the Inspectorate report, gives significant independent analysis of the issue, faulting the police and identifying issues with training that need to be addressed.

The nine recommendations in the body of the report mostly involved the Crown Prosecution Service (CPS) and the police. The CPS have reported incidents in the media in an attempt to distant themselves from the police, however, they lack compliance with the recommendations. It is then left to the defence to force issues of disclosure, which are often impossible, if we have no idea they exist.

The laws that gave rise to the disclosure rules were placed there as a result of previous historic miscarriages, if these are not being followed by the police or the CPS, we may well see a return to those days.

Author Rubin Italia is Director of Duncan Lewis’ Crime department in Harrow. Rubin is ranked in the Chambers and Partners 2017/18 guide and listed as a Recommended Lawyer in the Legal 500 2017 Edition. His extensive criminal defence experience means he is considered a key contact for many criminal matters and he has been involved in a wealth of criminal areas, from counter-terrorism, to the London Riots, to serious drug offences.

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