Recent Developments: Disclosure in criminal cases

Posted on 17 January 2018

Recent Developments: Disclosure in criminal cases

The proposition that every defendant has an absolute right to a fair trial should not be a controversial one.  Nevertheless, it is a right that is increasingly in jeopardy as a consequence of mounting concerns about the way in which the police and prosecuting agencies are discharging their duties of disclosure. 

As set out in the Criminal Procedure & Investigations Act 1996, the prosecution must disclose to a defendant any material in its possession (which includes information) that might reasonably be considered capable of undermining the prosecution case or assisting the accused.  The Act is supplemented by a Code of Practice, as well as detailed Guidelines published by the Attorney General. 

Importantly, disclosure should not be thought of simply as something that happens when a case goes to court.  While there are plenty of aspects of disclosure that are properly dealt with at that stage, it is of vital importance that it is also addressed and considered at the point when the prosecution come to decide whether to even bring proceedings in the first place.  If that does not happen, then material that has the capacity to fatally undermine a potential case may be overlooked, with the result that cases are commenced on an entirely flawed basis.  That has severe consequences both for the defendant and for the individual whose complaint has led to the proceedings. 

Against that backdrop, it was a matter of some concern that, in July 2017, a Criminal Justice Joint Inspection report found "widespread failures across the board" by both police and prosecutors when dealing with disclosure.

The report particularly identified the following key weaknesses in the disclosure process:

  • Poor scheduling by the police – the inspection that schedules of unused (potentially disclosable) material rarely provided accurate descriptions of the contents of the material;
  • Failure of the police to comply with scheduling guidance and requirements - police reported confusion about their roles and responsibilities with regards to disclosure, and central guidance from the College of Policing was found to be lacking;
  • Failure of prosecutors to manage disclosure – although prosecutors should challenge poor scheduling by the police, the inspection found a "culture of acceptance prevailing" with the schedules often endorsed without any recorded reasoning;
  • Failure of prosecutors to maintain an audit trail of disclosure actions;
  • Poor supervision of standards – the Disclosure Manual of Guidance is currently being updated jointly by the Crown Prosecution Service ('CPS') and the police national disclosure working group; and
  • Technology systems used by the police are often hindering the exchange of information and material between the police and the CPS.

The report advised that there should be a strict timetable for change.

Troublingly, despite those findings and the warnings that accompanied them, just last month two separate cases collapsed because of disclosure failures.  In the first case, the accused's trial had already started when the material was disclosed to his legal team, and in the second the defendant had been remanded in custody and was awaiting trial when his case was dropped.  And as recently as earlier this week, a further prosecution had to be stopped on account of a failure properly to deal with disclosure.

In all three cases, the disclosed material so fundamentally undermined the prosecution's case that it called for the immediate cessation of the proceedings.  Given that the material in question was already in the prosecution's position – and not, for example, a product of a new or unforeseeable enquiry – this has raised real concerns as to whether these cases should ever have been brought.

It is clear is that disclosure in criminal proceedings is in need of urgent attention.  Following the collapse of these recent and serious matters, the Metropolitan Police have announced an immediate review of cases immediately affected by similar issues,  though they have so far provided little detail as to who will be conducting the review and how many cases will be looked at. 

The Attorney General, Jeremy Wright QC, has expressed additional concerns that extend beyond police's initial remit to include fraud and terrorism cases.  Prior to these cases collapsing he had already initiated a review of disclosure which, it has been reported, will include an assessment of the continued suitability of the relevant legislation, guidelines and code of practice.  That report is expected later this year.

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