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Crime Solicitors

Failings recorded in report on police disclosure - Just how many are affected? (31 July 2018)

Date: 31/07/2018
Duncan Lewis, Crime Solicitors, Failings recorded in report on police disclosure - Just how many are affected?

Her Majesty's Crown Prosecution Service Inspectorate (HMCPSI) report on police disclosure looking at 1,290 cases to determine how many displayed failings. A stark 556 of those cases showed a lack of compliance in disclosing vital evidence to the defence.

The Justice Committee have criticised Alison Saunders, the Director of Public Prosecutions over these failings which have persisted. They also warn that the Crown Prosecution Service (CPS) may have underestimated the extent of the issue, stating that the 841 cases recorded to have been stopped in 2017/18 may only be 10% of the number affected.

Saunders admits that in some extreme cases, as a result miscarriages of justice, people have been sent to prison.

To fully understand the extent of this issue, it is worth taking a look at what disclosure means to a criminal case.

It is a requirement in any criminal matter that police disclose any non-sensitive unused material. The officer in charge of the investigation will usually take on the role of ‘disclosure officer’.

The report reveals that the issue lies in the quality of the schedules prepared by the disclosure officer in that the majority of those cases which demonstrate compliance failings were poorly put together.

It has taken four high profile cases to collapse for something to be done. There still remain many cases which are on hold pending the result of this widespread investigation.

When looking at the CPS’s role in disclosure proceedings it was unclear why, when these shortcomings were so common, the CPS demonstrated the inability to recognise failings with few reporting a lack of compliance.

Despite these findings, none of the eight cases which demonstrated a complete lack of compliance have reported miscarriages of justice. Nonetheless, it is clear that our trust in the criminal justice system has been shaken.

In order to conduct a fair trial, both the prosecutor and defence must be fully transparent even where evidence disclosed could undermine the prosecutor’s case or aid the defence in some way.

When this issue first came to light, we touched upon the way failings in disclosure can have an adverse effect to our position as criminal defence solicitors.

This is most evident in the case of Mr Allen, a student accused of 12 counts of rape and sexual assault, who was exonerated after 40,000 messages in which the victim had requested meetings for casual sex were belatedly disclosed.

Before this evidence was revealed, Mr Allen was subject to 2 years of uncertainty. The review by the Met and CPS on Mr Allen’s case found that failings had stemmed from a combination of issues including, “error, lack of challenge, and lack of knowledge.”

In spite of this, no evidence of misconduct was found.

The HMCPSI report broadly states that this issue could be managed and reduced were the police and CPS to manage the progress of each case more effectively, ensuring all evidence is disclosed at the earliest opportunity. This, they say, would ensure that the right cases are being brought to trial and those that do not have a case to answer are dropped before being brought to court, saving on court fees and preventing the trauma of trial for all those involved.

In response, the CPS comment on their plans for improvement:

"By September our prosecutors will have completed mandatory disclosure training; local and national improvement plans are in place and we will continue to monitor progress closely."

Only time will tell whether this will be enough to turn things around.

Rubin Italia, a Partner-level Director of Criminal law at Duncan Lewis, has this to say:

“Some insist 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. 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.”

Rubin specialises in criminal defence work in a broad range of offences from minor road traffic cases to murder, rape, extradition and serious complex crime, including large-scale drug conspiracies and complex immigration-related crimes. Rubin deals with full range of criminal offences from police station representation up to Crown Court trials, appeals and judicial review. He has been recognised by Chambers UK as a Leader in his field.

Contact Rubin on 020 3114 1129 or via email at rubini@duncanlewis.com.

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