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Disclosure Problems in Criminal Cases
As is often the case in life, problems arise out of the solution to a previous problem. Once upon a time, the defence could demand disclosure of virtually everything the prosecution held. One might ask - what’s wrong with that? Surely there should be equality of arms in terms of the available evidence? Does it not ensure that the outcome of a trial is more reliable? The problem of course is that disclosure of this type places an enormous burden on the prosecution and investigating officers. I recall cases in which I was effectively given the keys to the store room to go through many thousands of documents. The high point was finding a carefully hidden file that totally exonerated my client in a trial listed for six months. The low point in many other cases was spending weeks turning pages to no practical effect. Many exercises of that type were therefore viewed as defence fishing expeditions, especially where teams of defence lawyers were funded by legal aid orders.
The government eventually stopped this type of publicly funded disclosure by passing the Criminal Procedure and Investigations Act 1994 (CPIA). It places a burden on the prosecution and investigating officers to record and assess the relevance of the unused material to the defence case. The schedules of unused material are served upon the defence, together with an indication of whether items might undermine the prosecution case or assist the defence. The act also obliges investigating officers to follow all reasonable lines of enquiry, whether they point away from or towards the suspect. The intention was to establish an independent disclosure officer. In reality, that officer is normally one of the investigating team and performs a dual role. In those circumstances, it can become difficult to distinguish between investigation and prosecution.
For example, imagine an officer turns out to a fight at a pub and sees 50% of the incident. Perhaps the officer was injured or angered by what occurred. The officer forms a first-hand picture of what they believe was a series of criminal offences and may have suspects in mind. The officer is then asked to investigate all of the surrounding circumstances and submit a file to the Crown Prosecution Service, asking for advice on whether charges should be laid against identified individuals. Is that file going to be a true and comprehensive independent assessment and description of all the relevant material? Is it going to contain references to the completion of all reasonable lines of enquiry? Will all of that happen when the officer’s radio is demanding attendance at the next incident? Will the officer have time to undertake the list of supplementary enquiries on this or competing cases when the CPS supply their advice? When colleagues are off sick or when the officer is covering a patch originally covered by 3 officers, will the result of the investigation comply with the requirements set out in the Act?
In the vast majority of cases, the answer is – yes. In my experience as a police officer, CPS lawyer and defence solicitor for the last 20 years, officers really do value the badge. Most of the problem arises out of a dwindling budget in the face of demands that a fewer number of officers undertake a greater number of tasks. I sat face-to-face with Chris Grayling when he was secretary of state for justice and the clear message was - the budget must be cut and cuts drive innovation. There is a certain truth in the argument that pressure forces change and efficiencies, but it is extremely difficult to innovate without a budget dedicated to that purpose. It is akin to putting a hole in the boat to make the sailors row faster.
Looking at the defence side of the equation, the CPIA obliges the defence to serve a “defence case statement” setting out in detail why the defendant denies the allegations. Upon seeing this statement, the prosecution should reassess their case to see whether they should disclose additional material in their possession. It might also prompt them into making additional enquiries.
A number of questions arise - Has the unused material been accurately described and gathered? Will the officers have time to make additional enquiries and will they be inclined to undermine the assertions they made from their own enquiries when serving the original prosecution case? From a defence perspective, did the defendant answer questions during interview to assist with enquires or was the defence case statement sufficiently detailed?
It is therefore clear that problems arise on the defence and prosecution side at every stage of the process. It is not just a case of poor police funding. Another method by which the government try to restore ‘balance’ is to reduce defence funding so that consideration of unused material is not properly remunerated. If the defence don’t consider the material, problems in police disclosure won’t be detected until, of course, something goes horribly wrong.
So what has been happening to address the problems? In January 2018, the Crown Prosecution Service published the Joint National Disclosure Improvement Plan. It highlights the rise in digital media as a real complicating factor. It proposes that no matter how many guides, manuals and policies exist, the mind set of disclosure officers is paramount. It finds that although specialist investigatory teams handle disclosure well, most problems arise in volume crime investigations. It referred to the investigation by Richard Horwell QC in 2017, resulting in 26 recommendations amounting to better collaboration between the police / CPS and better digital case management. It raised issues in several categories –
The explosion of digital media means investigating officers simply have much more material to consider and many more devices to analyse. It recommends:-
- Better use of search tools, content analysis and better assessment of relevance.
- Better protocols to manage third-party material
- A more effective interface between police and CPS case management systems, particularly with regard to sensitive material.
- A repository for all digital material seized by the police (which raises all sorts of issues in itself)
- It urges senior officers to cascade best practice from serious crime teams down to volume crime cases.
- The electronic provision of digital material to defence lawyers.
- The establishment of teams of specialist disclosure experts in every police force.
The report found that too often, prosecutors do not challenge poor quality disclosure schedules and police officers do not truly understand their disclosure responsibilities. Consequently, the CPS disclosure manual has been updated and their lawyers have been given better access to disclosure training. The online “fair investigations for fair trials” training has been updated and better forms have been developed, including minimum standards on quality and content for the unused disclosure schedules. It has also resulted in a memorandum of understanding between the police and prosecution, together with regional disclosure awareness workshops. Interestingly, it also considers whether disclosure officers should have a licence to practice.
Organisational change requires top-down commitment. This is being addressed through CPS Disclosure Champions and the National Police Disclosure Working Group, which will include representatives from the police, CPS, defence and judiciary. The report aims to extend best practice from those groups down to the Magistrates Court and Crown Court serious sexual offences team, not just the complex casework units. It recommends pre-charge case assurance discussions at the CPS where complex disclosure issues are likely to arise and it discusses the appointment of a “tactical disclosure lead” at Chief Superintendent or Superintendent level.
There is clearly a need for joint governance between the CPS and police. The report identifies a very significant performance monitoring shortfall requiring the sampling of files to identify disclosure problems. This will include “Individual quality assessments” and the results will be fed back to national police chiefs, the Director of Public Prosecutions and the College of Policing.
The various reviews certainly contain constructive recommendations. However, all of them require the police and CPS to do much more with a decreasing budget. In the long term, better confidence in the investigation and disclosure process will lead to better quality charging decisions and more guilty pleas. The innocent will be identified much earlier in the process. More trials will become the forum in which a jury assesses all of the relevant evidence because, despite rigorous investigation, disclosure, defence case statements, and discussions at preliminary hearings, the prosecution and defence are still at odds. Currently, too many trials are simply the venue at which the prosecution and defence attempt to iron out investigation failures and test each other’s resolve.
Getting to that long term goal requires investment in the short and medium term. I am already seeing the hiring of retired police officers to act as civilian investigators who can focus on large investigations, leaving more regular officers available to deal with volume crime disclosure. Time will tell how costs-effective this measure is. However, there is still a real failure on the part of interviewing officers to explain their role to suspects. I am not simply referring to the police. I regularly encounter far too much confrontation and prosecution mentality by investigators from HMRC, GPHC, SRA, GMC, HSE, Trading Standards and others. Suspects regard the interview as the trial and the officer as judge and jury.
Many problems can be addressed by changing the sharp end of the investigation – pre-interview disclosure and the way in which the defence representative interacts with the process on the first day. In terms of volume crime, most suspects are represented nowadays by a self-employed accredited representative, a junior lawyer from the suspect’s preferred firm or a duty solicitor. It used to be that attendance was paid by the hour. Now, attendance is remunerated by a very low standard fee, no matter how many hours the representative spends at the police station (subject to a rarely met maximum beyond which an hourly rate applies). The time spent with the client has reduced greatly and the pre-interview disclosure provided by the officers is nothing like as comprehensive as was the case when I attended police stations on a regular basis.
Too many suspects don’t understand the process and the officer’s obligations to the investigation. The caution is no longer fit for purpose. It reads – “You do not have to say anything but it may harm your defence if you fail to mention something now that you later rely on in court. Anything you do say may be given in evidence”. The interviewing officer will typically break the caution down in to its three elements and will ask the interviewee to confirm his or her understanding. I have heard all sorts of answers given by suspects and many of them go unchallenged by the officer. They proceed on the basis that everyone understands the broken down version of the caution. On a basic level, they are probably correct, but do they actually understand the officer’s duties and obligations? If they did, more suspects would put their defence during interview and avoid prosecution, rather than making no comment and hoping for the best. More would make admissions at an earlier stage. The adverse inference from silence would be drawn more regularly at trial.
Some officers are rather good at explaining their role and what they are prepared to do in order to properly investigate a case, rather than prosecute it. However, the approach is very personal to the officer and if there is a standard protocol across the prosecuting agencies, it is not evenly applied. I am just about old enough to remember a time when police officers were the prosecutors and appeared in court as such. Some courts were convened in the prisons and in most cases, swift justice was seen as good justice. The Crown Prosecution Service was, in part, created to ensure a degree of independence; a distinction between investigation and prosecution to cure a fear that people were being dealt with by a system geared towards conveyor belt conviction. Funding cuts in all parts of the criminal justice system is re-creating the short cuts. Failures to explain the foundations of an investigation lead to late guilty pleas and unnecessary prosecutions. Re-establishing officers as properly resourced investigators and promoting this role in all parts of the criminal justice system will, in the long term, benefit all participants including the Treasury.
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