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Justice Select Committee report on disclosure in criminal cases

Disclosure of evidence in criminal cases – a Justice Committee report, July 2018 

The Justice Select Committee has released a report on disclosure of evidence in criminal cases. Disclosure of unused material in criminal cases is essential to a defendant receiving a fair trial. The urgency to revisit disclosure processes became apparent after a notorious failure in a number of cases between December 2017 and spring 2018. The report examines the failures in disclosure, the role of the Crown Prosecution Service (CPS) and the police, and provides a set of recommendations to ensure a more effective disclosure process.

Details

The Justice Committee report recommends:

  • a shift in culture towards viewing disclosure as a core justice duty, and not an administrative add on;
  • the right skills and technology to review large volumes of material that are now routinely collected by the police; and
  • clear guidelines on handling sensitive material.

It also asks the Government to consider whether funding across the system is sufficient to ensure a good disclosure regime.

The report examines the following areas:

  • The failures in disclosure – When exercised correctly, the disclosure process allows judges and magistrates to gather all the appropriate evidence to make a fair decision about a defendnat’s guilt and adequate sentence. When asked whether people were mistakenly sentenced to imprisonment due to disclosure failings, The Director of Public Prosecutions said ‘some people have been’ (Page 4, Paragraph 1). The committee asked for evidence showing written submissions and held five evidence sessions to conduct this report.
  • The extent of failure – This report documents numerous occasions where disclosure failings and its detrimental effect were identified in the past. Those involved in the criminal justice system have been aware of disclosure failures. For example, Fair Trials International wrote that “[it] has long been known among the legal profession: disclosure failures are not rare or isolated; they are systematic, routinely affecting cases of all kinds at every stage” (Page 11, Paragraph 23). Disclosure failures are partly a result of a lack of resources in the system including insufficient funding of the police, the CPS and cuts to criminal defence.
  • Leadership, oversight and culture – The report stresses that a shift in culture and leadership of the CPS and the Police is needed. As concluded by Richard Horwell QC’s Mouncher Investigations Report, ‘[d]isclosure errors were not designed to prevent the course of justice; they were the consequence of inexperience, poor decision making and inadequate training, leadership and governance’ (Page 23, Paragraph 71). Additionally, the committee criticised the performance culture of the CPS and data to hold people to account. The CPS’s data collection has under-estimated the pervasiveness of disclosure errors by up to 90%.
  • Knowledge and capability – The report highlights the importance of clear guidelines to assist the police and the CPS in appropriately handling disclosure materials. Due to prevalence of connected technology such as smartphones, the amount of material and its complexity results in the police and prosecutors not fully assessing the evidence available to them.
  • Disclosure at magistrates’ court The report acknowledges the disclosure issues in magistrates’ courts. The Criminal Bar Association said that ‘The approach to disclosure is cursory at best’ (Page 42, Paragraph 148). Alison Saunders told the committee “I do not think disclosure in the Magistrates’ Court is such an issue”. The committee did not agree with the DPP  and recommends the problems in magistrates’ courts need urgent attention to be addressed alongside the more complex cases in the crown court.

In response to the Justice Committee’s report, Director of Public Prosecutions Alison Saunders said: ‘Getting disclosure right is a fundamental part of a fair criminal justice system. I have been very clear that addressing the long standing problems in managing disclosure across the criminal justice system is my top priority. The National Disclosure Improvement Plan, published jointly by the Crown Prosecution Service, National Police Chiefs’ Council and College of Policing in January 2018 set out the improvements needed in disclosure standards.

The Magistrates Association have also responded to the Justice Select Committee’s inquiry into disclosure of evidence in criminal cases.

Commentary

It is disappointing the report does not mention youth courts but it can be safely assumed the disclosure issues in the magistrates’ court apply equally in the youth court. It is essential the disclosure processes in the youth court are included in the efforts to resolve issues with disclosure. Disclosure issues in the youth court should be given a high priority as children in the youth court face serious charges that would be dealt with in the crown court if they were adults.