A review of Disclosure in Criminal Proceedings

What is disclosure?

Disclosure is defined in the Attorney General’s Guidelines on Disclosure (2013) as the provision to the defence of copies of, or access to, any prosecution material which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused, and which has not previously been disclosed.This is set out in The Criminal Procedure and Investigations Act of 1996 (CPIA) which was brought in to regulate the procedures of investigating and prosecuting criminal offences.

The term prosecution material has a wide meaning and covers both materials in physical possession of the prosecution and other materials which the prosecutor has been allowed to inspect.Documents can refer to electronically stored information, not only paper or originals.

The Role of Both Parties:

Both the prosecution and defence are required to comply if disclosure is to function correctly. There are important roles for the prosecution, defence and the court in ensuring that disclosure is conducted properly, including on the part of the investigating team, disclosure officers, solicitors and advocates.

  • Defence engagement must be early and meaningful for the CPIA regime to function as intended. Defence statements which are only mandatory in Crown Court proceedings are an integral part of this process and are intended to help focus the attention of the prosecutor and court on the relevant issues in order to identify exculpatory unused material. (Section 6A CPIA)
  • Prosecutors are responsible for disclosing to the accused any prosecution material which has not been previously disclosed to the accused and which might reasonably be considered of undermining the case for the prosecution against the accused or assisting the case for the accused. (Section 3 CPIA, Initial duty of prosecutor to disclose).In the Magistrates’ courts, the requirement for the prosecution to provide initial disclosure only arises after a not guilty plea has been entered. Prosecutors should however be aware that material may exist which should be disclosed to the defendant prior to the CPIA requirements applying to the case.
  • Prosecutors also have a continuing duty to disclose (Section 7A CPIA) and keep under review the question of whether at any given time there is prosecution material which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused and has not been disclosed to the accused.
  • Investigators and Disclosure Officers must retain and record relevant material, review it and reveal it to the prosecutor. Investigating officers must follow all reasonable lines of enquiry, whether they point away from or towards the suspect.
  • Prosecution Advocates must ensure that all material which ought to be disclosed under the Act is disclosed to the defence.

Why is disclosure important?

Disclosure remains one of the most important as well as one of the most misunderstood and abused of the procedures relating to criminal trials (Judicial Protocol on the Disclosure of Unused Material in Criminal Cases, 2013).

Disclosure is important as it aims to ensure that all criminal investigations are conducted in a fair, objective and thorough manner in compliance with the Criminal Procedure and Investigations Act 1996 and the CPIA Code of Practice. Every accused person has the right to a fair trial as stipulated by Article 6 of the European Convention on Human Rights (ECHR). Disclosure is essential in avoiding miscarriages of justice.

What can go wrong?

  • Disclosure can go wrong if material is disclosed which overburdens the participants in a trial process, diverts attention from the relevant issues, leads to unjustifiable delay and is wasteful of resources. This could lead to the collapse of a case.
  • It is reported that in 2017 alone, 916 people had proceedings stopped over a failure to disclose evidence, a rise from 537 in 2014/15.
  • Problems may arise if communication within the prosecution team is not as effective as it should be. In order to prevent this, a full log of disclosure decisions (with reasons) must be kept on the file and made available as appropriate to the prosecution team. (Attorney General’s Guidelines on Disclosure, Section 11).
  • Organisational problems may occur if a lead disclosure officer is not assigned who is the focus for enquiries and whose responsibility it is to ensure that the investigator’s disclosure obligations are complied with. Where appropriate, regular case conferences and other meetings should be held to ensure prosecutors are apprised of all relevant developments in investigations and full records should be kept of such meetings. (Attorney General’s Guidelines on Disclosure, section 18).
  • The growth of digital and social media means investigating officers have much more material to consider and many more devices to analyse. The sophistication of mobile devices and the extremely large amount of data that requires capturing, analysing, reviewing and disclosing where appropriate has become a complicating factor. Where investigations involve digital material, it will be virtually impossible for investigators (or prosecutors) to examine every item of such material individually and there should be no expectation that such material will be so examined.In order to mitigate against this, the Crown Prosecution Service published the Joint National Disclosure Improvement Plan in January 2018 which includes updates on the use of a better digital case management system. The report identifies challenges involving disclosure concerning digital technology, including social media.

Recent cases which have collapsed due to disclosure issues:

  • The trial of tanker driver Peter Norton collapsed due to the part of investigating officers at HMRC. Peter Norton had been charged with the conspiracy to evade VAT by selling £500,000 of laundered so-called red diesel fuel.

The judge Robert Trevor-Jones warned of ‘systematic failures’ after the trial collapsed due to disclosure failings. A vast amount of information that should have been disclosed to the defence was identified on the laptop of the HMRC investigating officer Daniel Grundy. The prosecution asked for an adjournment to look through the material that should have been disclosed but the judge refused. More information about the case and its collapse can be found here.

  • In February 2018 at Aylesbury Crown Court the prosecution of five men for money laundering and evasion of duty offenses collapsed three weeks into the trial due to the prosecution’s failure to comply with its disclosure obligations. During the trial it became clear that there were major failings in the disclosure process by HMRC. When the judge asked for assurance that disclosure obligations had been fulfilled, the prosecution were unable to give such assurances, asking for ten more weeks to start the disclosure review from scratch. The judge denied the adjournment and as such the prosecution were forced to offer no evidence and all five men were formally found not guilty.
  • In May 2018, the trial of James Hamer who faced 23 counts of fraud relating to sums totalling £200,000 and a potential 10 year jail sentence collapsed after six weeks. The case arose out of a complaint by the horse trainer Tony Carroll that he had been defrauded by his former employee Hamer. The case collapsed as the judge ruled that material held by the police and the British Horseracing Authority had not been properly disclosed to the defence. The court accepted that on the basis of non- and very late disclosure of vital evidence, prosecution assurances could no longer be relied upon and that the entire trial process was flawed. More information about the case and its collapse can be found here.

For further help or assistance, please contact Sam Healey at JMW on 0345 872 6666 or email him here

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