In this report we consider the disclosure of unused material in criminal cases. The Crown Prosecution Service have the duty to disclose relevant material collected by the police in the course of an investigation to the defence. This process is part of ensuring a fair trial. Problems with disclosure came into sharp focus following the high-profile collapse of a number cases between December 2017 and spring 2018. In early December 2017 the Government had announced that the then Attorney General would conduct a review of disclosure. The Attorney General has since changed, but we expect that this review will conclude. The Crown Prosecution Service, National Police Chiefs’ Council and College of Policing also published a “National Disclosure Improvement Plan” in January this year
The Attorney General’s review will look at the detail of the disclosure regime, and so this report focusses on larger, systemic issues which we conclude have allowed disclosure failures to prevail for too long. We note that disclosure errors have been damaging for many people affected, including for complainants who might have waited years to have their case heard only for it to be delayed or for it to collapse. Fundamentally, however, disclosure errors have led to miscarriages of justice and–as the Director of Public Prosecutions told us–some people have gone to prison as a result.
We conclude that disclosure failures have been widely acknowledged for many years but have gone unresolved, in part, because of insufficient focus and leadership by Ministers and senior officials. This was not aided by data collected by the Crown Prosecution Service which might have underestimated the number of cases which were stopped with disclosure errors by around 90%.
We do not propose any fundamental changes to the legislation, or the principles of disclosure, but failings have arisen in the application of those principles by police officers and prosecutors on the ground. There needs to be:
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.
Finally, the Government must consider whether funding across the system is sufficient to ensure a good disclosure regime. We note that delayed and collapsed trails that result from disclosure errors only serve to put further strain on already tight resources.
Published: 20 July 2018