Disclosure in criminal cases. Is this our darkest hour?

What is Disclosure?

In a criminal trial the prosecution are obliged, in advance of a trial, to disclose the evidence which they have. This includes all the evidence including that which it doesn’t intent to use but could assist with the defence.

Disclosure in criminal cases has recently come under intense scrutiny following the collapse of a number of prosecutions due to police failures to investigate or disclose information to the defence.

Cases which have forces acquittals following disclosure

• In December 2017 Liam Allam was acquitted three days into a trial for 12 allegations of rape after the Police provided the prosecutor with a disc containing text messages that cast huge doubt on their case.
• In the same month Danny Kay had his conviction for rape quashed by the Court of Appeal after Facebook messages were discovered which were asked for but not available at trial and which undermined the credibility of the crimes alleged.
• In January 2018 it was reported that Valentin Krzyzyk was acquitted of sexual assault on the first day of his trial after CCTV footage was finally handed over to his defence team demonstrating he had not committed the offence. The footage formed part of the prosecution case but had not been viewed by the prosecution.
• Also in January 2018 Samson Makele was acquitted of rape when the prosecution case against him was dropped after photographs were discovered by the defence on his phone which undermined the prosecution case. The same phone that had been seized by police.

Parliamentary inquiry into disclosure procedures

At the end of March parliament began an inquiry into the disclosure procedures for criminal prosecutions. The Justice Select Committee is currently considering a sizeable amount of evidence. On the opening day, Kevin McGinty, Chief Inspector of the CPS confirmed that disclosure failings were the single most frequent cause in the steady stream of miscarriages of justice.

Disclosure in criminal proceedings is not easy to understand. The perception of what the police can do, are doing, or are capable of doing can be different to reality. What lengths are police expected to go to given the budget limitation they have? A victim of crime might never come forward if they believed that every personal detail of their life would be exposed to the perpetrator of a crime against them.

Disclosure of that which might help an accused’s case or undermine the prosecution case in truth is a constant tussle between the defence and prosecution with occasionally a judge intervening. But the hard truth is if you are accused of a crime, you are not entitled to everything.

When we talk about disclosure what it is?

The word disclosure is used frequently in criminal cases but can mean different things at different stages.

• If someone is arrested at the police station the solicitor will ask for disclosure of the reasons for arrest and what evidence there is against the accused so they can properly advise them.
• If a suspect is charged with a criminal offence they receive initial details of the prosecution case which is often a case summary of the allegations and ideally any statements or exhibits the prosecution have available. There should be sufficient information disclosed by the prosecution so that an accused can enter a plea and to allow the court to deal with allocation of the case and sentence if they plead guilty.
• If an accused pleads not guilty the prosecution will in due course serve the evidence (the witness statements and exhibits) they rely on to prove their case. The legislation currently in place also provides for the prosecution to serve other material they’ve gathered but are not relying on in their prosecution. This material is known as ‘unused material’. Not everything gathered is to be disclosed only that material which meets the disclosure test.

What is the disclosure test?

A lot can be written about the disclosure test but when you look at it it’s relatively simple. If there is any prosecution material not previously disclosed which might reasonably be considered capable of undermining the case for the prosecution against the accused, or of assisting the case of the accused it should be disclosed.

If the prosecution has material, which in their view doesn’t undermine their case or assist the accused they are not obliged to disclose it. Prosecutors are only expected to consider the disclosure test in light of information they have available to them at the time they make the decision.

For this to work effectively the test is based on the assumption that the prosecutor is capable of a fair and objective assessment of their case. It assumes that the police have provided all material to the prosecutor. It also assumes police and prosecutors are capable of seeing the flaws in the case they felt was worth investigating and bringing to court in the first place. Often the wording of the test is forgotten, the material doesn’t have to undermine or assist, it only ‘might’ reasonably be considered to do so.

The prosecutor will serve a letter on the defence complying with this obligation to notify them of any unused material. They will usually serve a schedule of non-sensitive unused material which will contain a list of the material gathered, either with comments that the items did not meet the disclosure test or that they did and copies/ extracts or an invitation to come and consider the material is attached.

Why do the police call it non-sensitive material?

There can sometimes be a second schedule containing sensitive material, which has been compiled by the police for the prosecutor. This schedule is not given to the defence and the defence have no right to know anything about it. Sensitive material is material which if disclosed, would give rise to a real risk of serious prejudice to an important public interest. If sensitive material falls to be disclosed because it would undermine the prosecution case or assist the defence, the prosecution can make an application to the court to prevent its disclosure if they believe there is a real risk of serious prejudice to an important public interest (this is known as a public Interest Immunity application). That said, such applications are infrequent and often extracts or redacted material is served to balance the defendant’s right to see the material and the public interest, which is being protected.

What evidence are the police expected to look for?

When a criminal investigation begins, the police are to pursue all reasonable lines of enquiry, whether these point towards or away from a suspect.

What is reasonable depends upon the circumstances of each case. If a reasonable line of enquiry leads the investigator to material that might be in the hands of third parties, i.e. social service records, medical records, or CCTV then the investigator should pursue it. A third party has no obligation to reveal material they have and no obligation to retain material but the investigator will obviously try and obtain it, or secure it and advise the third party of the need to preserve it. Once the police obtain the material, it becomes unused material and subject to the disclosure test. What is key is that material that might be relevant must be recorded and retained.

Speculative enquiries are not expected to be made. The Attorney General guidelines make it clear that a fair investigation does not mean an endless investigation.

If there are items you think the Police should have obtained and they don’t appear on the non-sensitive unused material schedule, what can be done?

The material might be on the sensitive material schedule. Or, the police haven’t included it or didn’t obtain it because they didn’t considered it a reasonable line of enquiry.

The defence will often serve a defence statement, which is a statement from the accused setting out the nature of the accused’s defence in an attempt to trigger further consideration of the material held by the prosecutor in light of the statement. The defence statement can be used to make direct disclosure requests, or for direct questions to be asked relating to the unused material.

The disclosure obligations of the prosecutor are ongoing. They have a continuing duty of disclosure and are meant to keep material under constant review. Prosecutors will usually ask for a full defence statement when requests for non-routine items of unused material are made. That said the continuing duty on the prosecutor does not require them to await a defence statement but in practice this is the route to go down.

If after service of a defence statement the prosecutor still refuses to serve prosecution material which is believed to be in their possession and came into their possession in connection with the case for the prosecution against the accused, the defence can make an application to the court to seek its disclosure and it will be a matter for a judge to decide.

What is very clear, according to the Attorney General’s guidance on disclosure is that an open ended trawl of unused material is not to be condoned and there is an obligation on the defence to direct the prosecutor to material, which is capable of meeting the test.

If the police haven’t followed a line of enquiry then the defence can. They can make their own enquiries. The current funding crisis in publically funded cases often mean solicitors are left without adequate remuneration to conduct their own investigations. Enquiry agents are rarely an expense the Legal Aid Agency will permit. Arguably in the modern day where there is so much open source material on the internet, instructing an enquiry agent might seem a sensible course of action if you have grave concerns that the police have taken a very myopic view of what a reasonable line of enquiry is.

Why are the disclosure laws needed in criminal matters?

The disclosure laws and guidance we have are to ensure one vital principle is upheld, that every accused person has a right to a fair trial. That is a right guaranteed by Article 6 of the European Convention on Human Rights.

For those who fear we might lose this protection once Brexit takes place, there is a glimmer of hope and European law experts will know more than me on this topic but the ECHR was drafted after the Second World War by the Council of Europe and based on the Universal Declaration of Human Rights.

Even if we leave Europe we are unlikely to ever stray far from this principle.