The disclosure process asks police and prosecutors to shoot themselves in the foot, by assisting the defence. They should be proud to do so. For, in so doing, they are upholding faith in the justice system itself, and helping ensure that the innocent are not wrongfully convicted.
Prosecutors’ disclosure obligations arise from the fundamental right to a fair trial. Yet eight centuries after the Magna Carta, it is widely acknowledged that the UK’s criminal disclosure process is failing to live up to its ideals.
Prosecuting lawyers are often rightly proud to uphold their ethical duties to the court, and to the administration of justice. Yet there is too often a lack of communication between investigators and prosecutors and a failure by investigators to understand and crucially apply the rules of disclosure At best, evidence that ought to be disclosed has inadvertently fallen through the cracks – being missed, dismissed or forgotten. At worst, material is deliberately withheld.
On 23 January 2019, the Attorney General, Geoffrey Cox QC, appeared before the House of Commons Justice Committee and theatrically vowed to “crack the whip” to fix the disclosure system. Mr Cox told the committee, “I intend to hold to account each responsible individual, and I intend to ensure that things are getting done … what I have to do is crack the whip and I will crack the whip, because I am determined that we don’t see this blemish rise again to stain our criminal justice system and to produce a dent in the confidence in what is otherwise something in which we should be enormously proud.” The thunderous oratory of the Attorney General appears sincere. As lawyers, we must welcome his making this one of his central priorities.
Disclosure is a fundamentally straightforward proposition. The fundamental principle of natural justice, audi alteram partem. requires that both sides be heard. This clearly cannot happen if vital evidence is withheld from the defence. The Attorney General’s guidelines state that prosecutors must disclose material that “might reasonably be considered capable of undermining the prosecution case or assisting the case for accused”.
Vast texts and manuals explain the nuances of the law on disclosure to prosecutors and investigators. There is a developed legal framework for disclosure, set out in the Criminal Procedure and Investigations Act, 1996. Seemingly, all this has been insufficient.
A 2017 CPS inspectorate report found that prosecutors had fully complied with their disclosure duties in just 56.9% of cases inspected. Amazingly, this represented an improvement on the previous such report, where disclosure duties were complied with in only 34.8% of cases.
Defence lawyers are all too aware of the impact that such widespread failures to disclose evidence can have on their client’s cases. Anecdotal evidence suggests many of our clients have suffered as a result of these deficiencies in terms of disclosure. The public has recently seen a number of high profile cases collapse, and convictions overturned because the police and prosecutors have not complied with their disclosure obligations.
The 2017 trial of London student Liam Allan, accused of rape, collapsed after it emerged that crucial exculpatory messages were not disclosed. A joint review of that case by the Met and the CPS blamed “a combination of error, lack of challenge, and lack of knowledge”. The CPS frankly admitted that “The prosecutors involved in this case did not sufficiently challenge the police about digital material.”
In 2017 alone, 916 defendants had charges dropped due to a failure to disclose evidence. The financial cost of such cases runs in to the millions. The costs to the individuals affected – and to the public’s faith in the justice system – are far less easy to calculate.
Other recent examples that we have been involved with include two HMRC cases, which had to be abandoned mid-trial once vast amounts of highly relevant documents emerged, which had not been properly recorded – let alone disclosed. A conspiracy to murder case also recently went all the way to the Court of Appeal, and on to a second trial. Yet the case was ultimately abandoned when crucial evidence as to the locations of the defendants was revealed, even though police had given assurances such evidence did not exist.
There is no golden age of disclosure to hearken back to, when justice was done to all. The past wasn’t always better, but the future isn’t what it was supposed to be either. Something has clearly gone wrong and government ministers could start by asking the simple question: why is the system failing?
Mr Cox proposes to “hold to account each responsible individual”, yet this is to miss how systemic failures feed into the problem. Police and prosecutors often find themselves overworked, overlooked and under-resourced, having suffered severe cuts to funding and personnel, including their most experienced staff.
Rather than rushing to judgement and blame, a co-ordinated and targeted approach is required. The most obvious remedies include greater prosecution involvement from the outset. All too often, prosecution lawyers receive evidence at the last moment. Evidence that passes the test for disclosure must be identified far earlier in the process.
Years of cutbacks to UK police forces and to the CPS have taken a grave toll. Over the past decade, the total number of police in England and Wales has declined by some 20,000. This dramatic fall in police numbers represents a reduction of approximately 15% in just a decade. The CPS has faced similarly draconian funding cuts. Its budget has been slashed by over 30% since 2010, resulting in thousands of fewer staff to handle cases. Set against a background of rising violent crime over the same period, it is little wonder if police and prosecutors are sometimes struggling to properly review all the available evidence for disclosure.
It is not just the prosecutors who are underfunded, however. There is no doubt that cuts to legal aid for criminal defence lawyers has also put serious pressure on the UK’s criminal justice system. Radical cuts in fees leave defence lawyers less time to review cases, and to deeply analyse evidence. The resulting pressures naturally make it more difficult for defence lawyers to fulfil their role in detecting prosecution errors and exerting pressure on their client’s behalf to ensure that the prosecution’s disclosure obligations are fully met. The government has recently promised a “wide ranging review” of legal aid fees, but few criminal defence lawyers are holding their breath for the promised appearance of the report at the end of the summer – summer 2020, that is.
Criminal defence lawyers know that the funding of criminal defence is never going to be government priority. It is a soft target for any government seeking to make cuts, since the public tend to have little sympathy for funding lawyers or accused criminals who are seen to be “trying to get away with it.” This view is perpetuated and intensified in the media and in popular culture. There is little regard given for the fact that defence lawyers are working to protect the innocent too, in the interests of justice. Working in an underfunded system is a constant battle and grind for lawyers. It is little wonder that many are abandoning criminal defence work. Legal talent is simply draining out of the system.
The net result of a decade of cutbacks to police, prosecution and defence is a criminal justice system under severe strain. Our failing disclosure system is but one symptom of this wider and deeper malaise. In order to remedy it, there must be adequate investment in both training and staffing for police, prosecutors and adequate legal aid funding for defence lawyers.
More stringent oversight of disclosure may certainly help to improve the situation. Yet increased motivation counts for little unless both adequate knowledge and resources are in place to enable police and prosecutors trawl through volumes evidence and properly assess it.
Better training is vital to ensure that the original investigators fully understand their disclosure obligations and how to apply them in practice. Investigators are there to independently investigate and follow the evidence. They should cherish their crucial function, and be confident to shine the light of truth on their cases. Officers can then feel able to confidently give lawyers assurances that they have fully complied with their disclosure duties.
To give weight to such assurances, disclosure officers in criminal cases could be required to sign a sworn witness statement stating that their disclosure duties have been fully complied with. Introducing such a requirement – along with adequate resources – would back with action the recent powerful words of the Attorney General and his demands for the restoration of responsibility, accountability and credibility. Any future failings would then surely result in Mr. Cox’s infamous whip being cracked.
By Marlon Grossman, Solicitor at Stokoe Partnership, criminal defence specialists
Marlon Grossman is a Solicitor at Stokoe Partnership Solicitors, a specialist criminal defence firm with offices in London and Manchester.