Rachel Hubbard examines the disclosure crisis currently consuming the criminal justice system in England and Wales.
Recent months have seen scandalised UK media headlines reporting the collapse of rape and serious sexual offence trials as a result of prosecution disclosure failures. Less reported has been the contemporaneous collapse of financial crime trials on similar grounds, including a recent money laundering case where the police failed to investigate all reasonable lines of enquiry regarding the defence, and the Crown Prosecution Service (CPS) neglected to review large quantities of exculpatory material in their possession for months before trial.
Collectively, recent cases demonstrate that the failure to disclose material has become a widespread crisis across all nature of offences in the criminal justice system, causing the Attorney General to order an urgent review of the entire disclosure process. The report is due to be published in the summer of 2018.
Simultaneously, the Justice Select Committee of the UK Parliament has launched an enquiry into the disclosure of evidence and the CPS. The Select Committee’s findings will feed into the Attorney General’s review. The crisis has raised serious and profound questions about the handling of criminal cases in England and Wales.
Underlying Reasons for Problem
The CPS say deep cuts have led to a chronic lack of resources and that significant additional work placed upon lawyers and the police are to blame for the current crisis of confidence in the prosecution handling of disclosure material. Nevertheless, they have admitted that “disclosure issues are systemic and deep rooted. This is a problem that all parts of the Criminal Justice System must address.”
The procedure for the disclosure of material was introduced by the Criminal Procedure and Investigations Act 1996 (CPIA) which stipulated the disclosure to the defence of material that “might reasonably be considered capable of undermining the prosecution case or assisting the case for the accused”. However, the CPIA was enacted more than 20 years ago, long before the explosion in the use of smartphones, digital equipment and social media. This has overwhelmed the police and prosecution who have struggled when dealing with disclosure of such materials.
Frequently police disclosure officers have had little or no training in downloading digital material and the methods adopted are varied and random, rendering the prosecution’s review of digital material unfit for purpose.
If the disclosure process is adequately to meet the challenge of the modern world there is an urgent need for investment in IT investigators or a return to dedicated digital forensic teams to assist in the disclosure process, and a consistent procedure should be developed in relation to the review of digital and electronic media. As the SFO has begun to do, more use should be made of artificial intelligence to filter and sift large volumes of digital information to identify material that ought to be disclosed.
Issues of disclosure have been described by Angela Rafferty QC, Chair of the Criminal Bar Association, as a “daily struggle in respect of disclosure, delays and all other disastrous consequences of a system that is openly described by MPs as at “breaking point””, and our firm has previously written of the need for a cultural sea change and overhaul of the disclosure regime in criminal proceedings in England and Wales.
The recent trial collapses have led the police and prosecution to accept the urgent need for training to be given to disclosure officers. The Chief Constable of Surrey Police said in a blog post: “We have had a cultural problem with disclosure, where it is too often seen by police officers as a thing to be done at the end of an investigation, becoming subsequent to, rather than integral to the investigation. Changing the mind-set is an immediate challenge for us”.
In relation to sexual offences, some see the problems as a direct result of the misplaced culture of “believing the victim” so the police do not look for or withhold contradictory evidence, and the police focus on investigating a target rather than the offence. This now also appears to be affecting suspected financial crimes.
The CPIA requires disclosure officers to be fair and objective. Yet at the heart of this crisis lies the failure of police and prosecutors to respect the critical importance of the obligation to disclose material that either undermines the prosecution case or helps the defence. A joint review by the Inspectorate to the CPS and the police in July 2017 found the police did not draw the attention of the CPS to evidence that weakens their case, and the CPS does not question the quality of the material handed over. Neither party honours the duty of disclosure to help the defence.
Tackling the Problem
A CPS London proposal introducing a shortened Disclosure Management Document (DMD) in all rape, serious sexual offence, homicide and other complex cases from 26th March 2018 is welcomed. The DMD will be used from the outset of the case to detail the prosecution’s approach to disclosure, identifying what are considered to be reasonable lines of enquiry in the investigation, and will include an explanation of the approach taken to the examination of all seized electronic material. It will enable defence representatives to challenge the approach taken by the prosecution and to suggest alternative or additional enquiries, and the prosecution approach to disclosure can be discussed with the Judge at an early stage at the Plea and Trial Preparation Hearing.
In order to restore public faith in criminal justice and the disclosure process, a further possible solution would be the involvement of independent counsel in all indictable (serious) cases, to conduct a final review before trial after meeting the disclosure officer. Proposals for the use of independent counsel, though, would inevitably be met by objections on cost grounds.
On a practical level, for both small and complex cases, it is very helpful for the parties to have oral communication in order to ensure there is an understanding of the relevance of disclosure requests, and to address concerns of reasonableness and proportionality. Such an approach would follow and develop the Court of Appeal’s 2015 ruling in R v R and Others  EWCA Crim 1941, that there should be active and robust case management applied to the initial stage of disclosure and that “flexibility is critical: disclosure is not a box-ticking exercise ”.
The scale of public disquiet over the disclosure problem is such that only radical measures will restore faith in the system ensuring the disclosure process is appropriately conducted and that cases are trial ready. In the long-term, this would avoid the cost of adjournments and the injustice of trials collapsing at the door of the court when they should have been discontinued months before. It is very much hoped that the reviews now underway address the cultural attitude of disclosure officers of the various prosecution agencies and that a uniform procedure is adopted for the review of digital material. Otherwise there is a risk that defendants will remain at the mercy of chance and the potential for future miscarriages of justice will continue.
Rachel Hubbard is a partner highly experienced in serious, complex fraud and high-profile general crime. She has successfully represented defendants in relation to serious fraud, corruption and tax mitigation schemes which have included some of the most complex and long-running trials.