What has the government done to change the regime of non-disclosure of evidence which has led to numerous miscarriages of justice?

Almost all of the most notorious miscarriages of justice have involved similar non-disclosure of critical evidence, such as psychiatric reports, which weaken a confession. In each case, material which would have exonerated the accused was deliberately withheld by the prosecution, with terrible consequences. The dangers of non disclosed information was highlighted in many cases especially the cases above, partly by police officers who find it ridiculous to have to gather information to help prevent a conviction, they can only do this after working hours and find it too time consuming, as they have to gather all information before the court case. However, there was a backlash from police and prosecutors that they had to spend vast amounts of time and money supplying the defence with material, much of it irrelevant, prompted the last government to clamp down on disclosure.

The ‘Attorney-General's Guidelines for the Disclosure of “Unused Material” to the Defence’ became the subject of increasing review, also reviewed by the Royal Commission on Criminal Justice (RCCJ), under the Chairmanship of Lord Runciman, with requests for a more wide ranging duty of disclosure to be imposed on the prosecution. However, the final report was much more understanding to the police point of view in terms of disclosure, and the government response was Criminal Procedure and Investigations Act 1996 (CPIA), which limited, the duty of disclosure on the prosecution. The Act also, for the first time, enforced a mutual duty on the defence. As a result, the defence was now under a statutory obligation to assist the prosecution by revealing the nature of their case in advance of the trial.

The House of Lords stated in R v H and C:

“Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made. “

Therefore unused prosecution material will fail to be disclosed if, and only if, it satisfies the test for disclosure applicable to the proceedings in question. The relevant test for disclosure will depend on the date the criminal investigation inquiry started, as this will determine whether the common law disclosure regime applies, or either of the two disclosure regimes under the CPIA1996.

The test for disclosure under the common law position before the CPIA where investigation started before 1st April 1997 was summarised in R v Keane.

After, the test for disclosure would be primary and secondary disclosure.

The CPIA 1996, created two tiers of disclosure, both of which are dependent on the prosecution deciding what unused material should be disclosed. On primary disclosure, the police disclosure officer is required to list unused, non-sensitive material, and anything that might undermine the prosecution's case should be disclosed to the defence. The defence, if it wants further disclosure, must first supply a defence statement. The prosecuting authority should then make secondary disclosure of any unused material that advances the defence case. However, examples of non-disclosure have brought criticism from trial judges. The CPIA would be test for disclosure if investigation started after 1st April 1997, but before 4th April 2005 where the CPIA as amended by Part V of the Criminal Justice Act (CJA) 2003: s.23 (1). 

Prior to the CPIA (1996) the defence could inspect all material to their case, but now a police officer will decide the materials that undermine his or her case and the that information will be passed to the accused. In every case a police officer would be appointed "disclosure officer", responsible for carrying out the duties imposed by the act. The prosecution would no longer be required to disclose all the evidence in its possession. The crown prosecution service (CPS) is now required to disclose any material which in the prosecutor's opinion might undermine the prosecution case, and any material which might reasonably be expected to assist the defence. That sounds fair enough in theory. But it depends entirely on the judgement and honesty of the police officer who compiles the information in the first place, and the fairness of the CPS lawyer who assesses whether the material may assist the defence. The obvious and glaring problems are that police officers lack the experience and motivation to make this scheme work. They lack the experience because they are not trained or practised in raising doubts about the guilt of those accused of crime, and they lack motivation because they nearly always believe, that the accused is guilty. Criminal lawyers argue that the police, who are not legally trained, are not in the best position to decide what material would help the defence case or seriously affect the prosecutions. The CPS inspectorate calls for crown prosecutors to look at much more material themselves, rather than rely on lists compiled by police disclosure officers, and for a bigger role for prosecuting counsel. It recognises that this would mean substantial extra resources for the CPS, and also for the police, who would have to copy far more material for prosecutors.

Mistakes keep on happening and assurance in the disclosure procedure remains unstable, despite a number of attempts to refine the provisions. The 2000 Attorney General's Guidelines have themselves been added to, by detailed guidance, in both the Code for Crown Prosecutors and the associated Manual of Guidance, together with new Police/CPS ‘Joint Operational Instructions for the Disclosure of Unused Material’ (JOPI). In 1998 David Calvert Smith was appointed director of public prosecutions much of this documentation arose from a review of the procedures instigated by him. He also recognised the widespread concern over police and CPS performance in relation to disclosure and, made the decision to publish JOPI.

In conclusion, major trials have collapsed at huge expense, defendants have had their cases dropped when a judge's patience with a failure to disclose evidence has finally come to an end, while those wrongly accused have, come very close to going on trial without knowing about crucial evidence that would secure their exoneration. The big worry, of course, are the cases where no one ever finds out about the exoneration statement sitting at the bottom of a police file; where the accused is convicted, locked up, but is innocent. The Government is now well aware of the problems; however, all the good intentions have led to lots of public announcements of aim but very little progress. It could all be sorted out in three easy stages, without legislation. First, the CPS needs to be told that it has to inspect the unused material itself, not just glance at the list produced by the police. Second, the CPS needs the extra funds to give it the time to do so. Third, the Government should, in the majority of cases, let defence lawyers go and look at whatever the police have got. However, the continual failure of the criminal justice system to efficiently execute a successful disclosure procedure makes one wonder what makes it so hard to understand and work properly?

References

BBC News. 12/11/2007: Man convicted of Molseed murder. [Accessed]

Court of Appeal: Disclosure: A Protocol for the Control and Management of Unused Material in the Crown Court. 20 February 2006

Naughton. M. (2007): ‘Rethinking miscarriages of justice’: Beyond the Tip of the Iceberg: Palgrave Macmillan

Report of the Royal Commission on Criminal Justice: (1993)

Report on the Thematic Review of the Disclosure of Unused Material. London: HMSO. (2000)

Bibliography

Davies, M., Croall, H., Tryer, Jane. (Third Ed) (2005): Criminal justice: An Introduction to the Criminal Justice System in England and Wales. Pearson Education Limited

Gibson, B., Cavadino, P., (Second Ed) (2002): Introduction to the Criminal Justice Process. Waterside Press

Sprack, J. (Ninth Ed), (2002): Emmins on Criminal Procedure. Oxford University Press

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