The heavy cost of disclosure failures in criminal proceedings

When police and prosecutors bring a case against a suspect, they are required to share material in their possession with the defence if it might help the suspect's case or adversely affect the prosecution's case. This duty is engaged from the outset of criminal proceedings and is ongoing, requiring investigators to explore all lines of inquiry and to keep the relevance of prosecution material under constant review. The provision of the defence statement also effectively triggers a further disclosure review.

In its Annual Report and Accounts for 2015/2016, the Criminal Cases Review Commission stated "The single most frequent cause [of miscarriages of justice] continues to be failure to disclose to the defence information which could have assisted the accused".

In the report "Making It Fair", published in July 2017, the HM Crown Prosecution Service Inspectorate and HM Inspector of Constabulary made a number of critical findings.

Investigators found that the police scheduling of material is "routinely poor" and "revelation by the police to the prosecutor of material which may undermine the prosecution case or assist the defence case is rare". Prosecutors, for their part, do not challenge poor quality schedules and do not provide sufficient input to the police during the relevant processes. Work with police focus groups found "a basic lack of knowledge by police of the disclosure and scheduling process" with officers adopting a "very narrow approach to relevancy". Among prosecutors, there was a "culture of acceptance" of inadequate disclosure schedules. Prosecutors felt that police knowledge of disclosure was "extremely poor" and that standards were worsening.

Police and prosecutors interviewed as part of the investigation felt that the failings were largely due to "limited resources and lack of time" yet from cases sampled which pre-dated budget cuts, it was clear that the problems are in fact long-standing.

The report stated "rather than addressing non-compliance, our inspection has found a continuing decision by the police and CPS to accept the risk associated with poor disclosure practices and procedures in respect of disclosure handling for volume Crown Court work". The reasons for such failings were the training of police and in the supervision of police and prosecutors. There needed to be better communication between the two, as well as a greater level of importance given to the issue of disclosure. There needed to be a "cultural shift" to view disclosure as key to the prosecution process, rather than an administrative function.

The report made a number of recommendations with prescribed timeframes in which they should be implemented. In its conclusions, the report stated "it is hoped that this report will stimulate a real drive for improvement rather than, as appears to have occurred with previous reports, be seen as another academic account of a complex legal concept which may be quickly forgotten".

Following the recent collapse of two separate criminal cases against Mr Liam Allan and Mr Isaac Itiary, both of whom were accused of sexual offences, the police and prosecutors' approach to disclosure has again come under scrutiny. The cases differed in that one collapsed following disclosure at trial, whereas the other was thrown out following revelations made after the provision of the accused's defence statement. Mr Allan was on bail for two years, whilst Mr Itiary spent four months in prison on remand.

In both instances, it was following disclosure of phone messages which had been in the police's possession for some time that the Crown Prosecution Service decided to offer no evidence. Both cases were investigated by the same police force (the Metropolitan Police Service) and, indeed, the same investigating officer. It appears that, had disclosure obligations been properly adhered to, such information would have come to light at an earlier stage. Because it did not, these young men experienced significant loss of liberty, reputation and financial loss.

In the wake of the revelations surrounding these errors, Scotland Yard rejected claims that these issues were the result of systemic failures. It did, however, confirm that a management review would be conducted in conjunction with the Crown Prosecution Service ('the CPS') of all cases regarding rape and sexual abuse in which someone had been charged, prioritising 30 which were about to go to court. A judge-led inquiry into disclosure failings has been ruled out.

We are advising Mr Itiary about the remedies available to him following the CPS decision to offer no evidence.

Contact Criminal Defence Solicitors London

If you have been the subject of a criminal investigation and/or criminal proceedings in which you suspect that failures to adhere to disclosure obligations have prolonged those proceedings unnecessarily then you may have grounds for a police complaint and you may be entitled to compensation for any loss incurred. Call us on 02076324300 or complete our online enquiry form.