Failing to Disclose Disclosure Failings?

14th January 2020 Business Crime

Reports this week suggested there are Unacceptably low standard in prosecutors’ handling of disclosure of evidence, following an investigation by HM Crown Prosecution Service Inspectorate. The CPS response to this, seems to skirt around the real issues. This recent report follows an earlier 2017 joint inspection report where it observed the failure to deal effectively with disclosure has a corrosive effect on the criminal justice system. Poor handling of disclosure undermines the principles of a fair trial………thereby depriving the victim of justice, or by convicting an innocent defendant. Both amount to miscarriages of justice'.

How can this work in practice. You are charged with serious offences, some of which carry a maximum sentence of life imprisonment. Offences of manslaughter, rape and perverting the course of justice are just a few. Some people charged with these offences are remanded in custody, usually waiting around six months for their trial to be heard by the Crown Court. The prosecution (and the Police) are under a constant obligation to disclose evidence which undermines the prosecution case (“undermining material”) or assists the defendants case (“assisting material”). You have the right to expect the prosecution and Police to undertake this process in a fair, objective and proper way. But does this happen? It may, but it cannot be guaranteed. It cannot be left to chance.

There are cases where a defendant (with no previous convictions) has been charged with offences such as rape and remanded into custody for six months awaiting trial, but released when the prosecution offer no evidence, how? A matter of days or a couple of weeks before the trial (far later than it should have been!), the prosecution, at the direct request of the defence, disclose evidence which was not fully reviewed by the prosecution or relevant parts were not brought to the attention of the prosecution by the Police, in particular the ‘Disclosure Officer’ / ‘Officer in the Case’. This evidence is so relevant and undermining, it has then gone on to be used by the Defence in an entirely proper manner (otherwise it would be prevented by the trial judge) to undermine the prosecution case, or, as has been the case, from the author’s experience, caused the prosecution to ‘drop the case’ by way of ‘offering no evidence’. This is obviously alarming for a number of reasons. This person has spent six months in custody awaiting trial, how is that fair? How has this affected their personal and professional life? What if the evidence hadn’t been asked for? Why wasn’t such evidence brought to the attention of the prosecution until such a late stage? Why wasn’t it disclosure before being requested? What is being done to avoid these issues occurring in the future?

Where the case is before the Crown Court, the defendant has an obligation to serve [in a timely manner] a Defence Statement, which sets out the defence, issues in the case and is also used as a vehicle to request disclosure of evidence. Getting this right is important, which requires thorough preparation and the taking of detailed instructions. Once served, the defendant has the right to expect the prosecution and Police to do their bit; fair, objective and proper disclosure – obtained as a consequence of a fair and balanced investigation. These are not new concepts which are triggered by the Defence Statement being served, they start from the life of the case, through to its conclusion.

The recent report comments;

‘There were good examples of prosecutors who really understood what was required of them and the police, and challenged partners where necessary. Others are still accepting inadequate schedules from the police and not giving them guidance when required.’

‘It is the duty of the police to follow all reasonable lines of enquiry which may lead away from the suspect being responsible for the crime……..Our findings did not suggest that this duty was happening in every case.'

Whilst it is acknowledged investment is required to assist the prosecution and Police with resourcing and training so as to be able to undertake their obligations regarding disclosure and pursuing reasonable lines of enquiry, in order to ensure a fair system, we are some way from that being achieved. Police often say [along the lines], during a police interview; “we remain open minded and receptive to your clients explanation…….all reasonable lines of enquiry will be pursued”. That statement must not be lip service. It must be reality in all cases, to ensure those facing criminal trials have a fair hearing. Disclosure Officers / Officer in the Case, must be alive to what fairness requires, both for the accused and the complainant.

It is imperative those facing serious offences work closely with their legal team from the inception of their case to scrutinise and challenge matters of disclosure, and cause lines of enquiries to be pursued, whether by their legal team, or the Police. Whilst disclosure failings may support grounds for appeal, that may be too late to repair the damage caused by the injustice.

JMW Solicitors' Business Crime and Regulation team are ranked Tier 1 for Fraud in both Chambers and Partners and Legal 500. For further information about the comprehensive service our lawyers can offer if you are concerned about an arrest or proceedings in respect of consumer law, the author of this blog, Chris Fallows, can be contacted on 0845 872 6666 and enquiries@jmw.co.uk

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Christopher Fallows is a Senior Associate located in Manchester in our Business Crime & Regulation department

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