1The failures in disclosure
Introduction
1.Disclosure is the process by which material collected by the police during an investigation is made available, first to prosecutors and subsequently, and subject to certain rules, to defence teams.1 Prosecution and defence may make use of this material in preparation for and during a trial where it is potentially relevant to an issue, or issues, in a case. When it works properly, the disclosure process enables judges and magistrates to have all the relevant evidence before them when deciding on guilt of an accused person and in the event of conviction it may be used in deciding an appropriate sentence. Disclosure is, as the then Attorney General told us, a “fundamental question of fairness in criminal proceedings.”2 When the disclosure process does not work as it should crucial evidence might not be heard and miscarriages of justice can prevail. On 5 June 2018 we asked the Director of Public Prosecutions if people had been wrongly imprisoned as a result of disclosure failings and she said “some people have been”.3
2.We launched this inquiry following reports in the press of cases which had collapsed, or guilty verdicts which had been overturned on appeal, due to errors in the disclosure process. The most high-profile case, one of those which Joanna Hardy of Red Lion Chambers referred to as “firework cases”.4 ended in December 2017 with the acquittal of Liam Allan. In this case, evidence held by the police had not been disclosed to prosecutors or the defence until the day of trial, and this evidence undermined the prosecution case to such an extent that - once it was disclosed - the Crown Prosecution Service (CPS) case collapsed. The CPS “decided that there was no longer a realistic prospect of conviction and the case was listed at Court on 14 December 2017 so that it could be stopped.”5
3.The case of R v Allan acted as a catalyst to raise the profile of a number of other cases, most of which were related to the very serious crimes of rape and sexual assault. These are charges that, if they lead to conviction, almost inevitably result in imprisonment. We heard, however, that disclosure errors happen in all types of cases, both complex cases in the Crown Court, and volume Magistrates’ Court cases covering, not just rape cases, but all crime types.6 And we heard from defence practitioners and victim representatives that it is not in the interest of anyone, including complainants, to have a case delayed, disrupted or collapse due to disclosure failings.78
4.We are conscious that coverage of disclosure has focussed on rape and serious sexual offences when, in reality, disclosure is a feature of every case that goes through the courts, and errors have happened in all types of cases. This report focusses on disclosure and does not focus on any one type of crime specifically. This is in line with the terms of reference and reflects the evidence we received. It is of vital importance that coverage does not detract from the importance of victims of violent or sexual crimes coming forward. Complainants should be treated fairly and sensitively while the right to a fair trial is upheld. We also note that when evidence is disclosed late a case might be discontinued. This usually happens because the totality of the evidence no longer supports a realistic prospect of conviction, so it should not be assumed that discontinuing a case implies any wrongdoing on behalf of complainants or defendants.
Disclosure and the scope of this report
Background
5.The scaffolding of the disclosure regime can be found in the Criminal Procedure and Investigations Act 1996 (CPIA 1996). This act is amplified by the CPIA Codes of Practice. The legislation does not prescribe the method of disclosure, or the process to be adopted by the prosecution; rather it is focussed on the end result.9 The police, or another prosecuting authority, have a duty to pursue all reasonable lines of enquiry, whether these point towards or away from the suspect. The police must reveal relevant material they collect to prosecutors, and the CPS have the duty to disclose that material to the defence. The CPIA 1996 also places a reciprocal duty on the defence to give a statement which outlines the defence case so that the police and prosecutors can review the disclosure. The defence statement is mandatory in Crown Court cases but optional for cases taking place in Magistrates’ Courts.
6.Issues with disclosure came to the public’s attention following high profile cases in late 2017 and early 2018, but problems have been acknowledged and reported on for some time. A series of reports (outlined in paragraph 23) dating back to 2011 had called for improvements to the practice of disclosure. In July 2017, “Making it Fair: a Joint Inspection of Disclosure of Unused Material in Volume Crown Court Cases” had identified a “significant failure in the process of disclosure”, and noted that this is “likely to reflect badly on the criminal justice system in the eyes of victims and witnesses.”10
7.Following the spate of cases which collapsed, police and the CPS took a number of steps:
a)In December 2017 the Prime Minister announced that the then Attorney General would review disclosure. She stated that “even before these cases arose, my Right Hon. and learned Friend the Attorney General had initiated a review of disclosure.”11
b)In January 2018, following the collapse of R v Allan, the CPS and Metropolitan Police conducted an urgent review of disclosure in that case and concluded that “disclosure problems [ … ] were caused by a combination of error, lack of challenge, and lack of knowledge”. They made a series of recommendations.12
c)In January 2018 the CPS, National Police Chiefs’ Council (NPCC) and College of Policing produced a National Disclosure Improvement Plan which made over 25 specific commitments responding to criticisms, and the findings of the joint inspectorate.13
d)In January 2018 the Chair of the Justice Committee, Robert Neill MP, announced that we would also undertake a review which would feed into the Attorney General’s review.14
Disclosure
8.Material is collected by the police throughout the course of an investigation and some (but not necessarily all) of this material will be relevant to the case that they are investigating. The Crown Prosecution Service disclosure manual explains that “material may be relevant to an investigation if it appears [ … ] that it has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case.”15
9.Relevant material falls into one of two major categories, at the point of disclosure: used material (that relied upon by the Crown to inform or uphold the prosecution case); and unused material (relevant material within the possession of the prosecution but which the prosecution do not intend to use). Relevant material which is reasonably capable of assisting the defence case or undermining the prosecution case should be disclosed to the defence.
10.For Crown Court cases the police list all the material on a series of schedules, known as MG6 forms, and the CPS must review and sign off these forms before disclosing them to the defence. The defence should be served with principal parts of the prosecution case (the used evidence), prior to a Plea and Trial Preparation Hearing (PTPH). The PTPH is a court hearing used to plan the case, and the defendant is expected to enter a guilty or not guilty plea at this stage. This starts a four-stage disclosure process:
Table 1: four stage disclosure process for Crown Court Cases
Source: Judiciary of England and Wales, Better Case Management Guide, January 2018
Note: days between stages are “ordinarily” expected, as provided in the Crime and Disorder Act (Service of Prosecution Evidence). The Court has the power to extend, but not abridge time frames.
11.In Magistrates’ Courts the prosecution must serve the Initial Details of the Prosecution Case on the court officer and the defence no later than the beginning of the day of the first hearing. The details must include a summary of the circumstances of the case. When a not guilty plea is entered the prosecutor should serve a streamlined disclosure certificate which lists the used and unused material or states that there is no unused material, and the defence might submit a defence statement (this is optional in Magistrates’ Courts).
12.These duties are stipulated in the CPIA 1996. How the CPIA 1996 should work in practice is outlined in several places including: The CPIA Codes of Practice; the Attorney General’s Guidelines on Disclosure; the Disclosure Manual produced by the Crown Prosecution Service; and case law.16
13.The Committee’s terms of reference did not specifically state that the inquiry would focus on unused material, but almost all of the evidence we have received concerns the disclosure of unused (rather than used) material so we have chosen to report primarily on that.17
Our inquiry
14.We launched a call for evidence seeking written submissions to our inquiry on Disclosure of Evidence in Criminal Cases on 22 February. We held five evidence sessions:
a)On March 22 we heard from Her Majesty’s Inspectors of Constabulary and the Crown Prosecution Service about findings from their inspections, including their thematic inspection on Disclosure of evidence in the Crown Court;18
b)On May 1 we heard from defence practitioners (representatives of the Criminal Bar Association, the Law Society, and the Criminal Law Solicitors’ Association) about their experience of disclosure;
c)On May 15 we heard from experts in digital forensics (the Forensic Science regulator, Dr Jan Collie, and Professor Peter Sommer) and from the Information Commissioner’s Office, Rape Crisis and the Police and Crime Commissioner for Northumbria, Dame Vera Baird;
d)On June 5 we heard from the Crown Prosecution Service, the College of Policing, and the National police Chiefs’ Council; and
e)On June 13 we heard from the then Attorney General, Jeremy Wright MP, and the Minister responsible for Policing, Nick Hurd MP.
We received written submissions from a range of people and organisations including: legal professionals; experts in the field; public organisations; and numerous individuals sharing their experiences. Every piece of evidence we accepted is published on the website and we would like to express our gratitude to everyone who wrote to the Committee sharing their experience and expertise.
15.This inquiry took place at the same time as efforts were being made by ministers and officials to respond to high profile disclosure failings. It thus coincides with the Attorney General’s review of disclosure, and follows the publication of the National Police Chiefs Council, Director of Public Prosecutions, and College of Policing’s National Disclosure Improvement Plan.19 As such, we have not sought to conduct a detailed review of the law or the guidance - as we understand that this is being done by others - but have instead focussed on some of the long-standing and systemic issues that have undermined the process of disclosure. Since the inquiry began the Attorney General has changed, but we expect the disclosure review to conclude and that this report will feed into it.
16.We have sought to collect information and report relatively quickly, reflecting the urgency of the situation. We intend that this report will:
a)Identify some of the long-standing and systemic issues which have undermined the practice of disclosure;
b)Make practical recommendations towards the resolution of issues identified; and
c)Feed into the Attorney General’s more detailed review of practice and guidance.
Because mistakes are occurring in real-time they are a present and continuing risk that require immediate action, but solving long standing problems also requires a long-term commitment. This includes changes to the culture of police and the CPS as well as changes to the practice of disclosure. It can’t be done overnight but it must start immediately. We consider that these issues are central to the administration of a fair justice system and to resolve them will need long term commitment underpinned by clear accountability by the most senior people. This is not the time for short term fixes and our recommendations reflect that view.
17.This report covers, in three subsequent parts, the following:
a)Long-standing failures in the practice and oversight of disclosure;
b)Senior accountability for disclosure, and the culture of police and the CPS; and
c)Knowledge and capability to do the job on the ground.
1 This disclosure duty is undertaken by the investigating authority, which is usually the police, but might be another body such as the Serious Fraud Office, HM Revenue and Customs, or a local authority. We refer to the police throughout this report for reasons of consistency.
5 Crown Prosecution Service, Metropolitan Police, Joint review of disclosure in the case of R v Allan, January 2018
6 Including from Magistrates’ Court Observers Panel (DIS0009); and Magistrates’ Association (DIS0023)
9 That is stated in section three of the CPIA 1996
10 The Criminal Justice Joint Inspectorate, HM Inspectorate of Constabulary, Fire and Rescue Services, and HM Crown Prosecution Service Inspectorate, Making it fair a Joint Inspection of Disclosure of Unused Material in Volume Crown Court Cases, July 2017
11 The Prime Minister, engagements, 20 December 2017
12 CPS and Metropolitan Police, Joint review of disclosure in the case of R v Allan, January 2018
13 CPS, National Police Chief’s Council, College of Policing, the National Disclosure Improvement Plan, January 2018
14 The Justice Committee, Terms of Reference, accessed on 4 July 2018 /
15 CPS, legal guidance, disclosure manual, accessed on 4 July 2018.
16 Including R v R 1 W.L.R. 1872
17 The Justice Committee, Terms of Reference, accessed on 4 July 2018
18 The Criminal Justice Joint Inspectorate, HM Inspectorate of Constabulary, Fire and Rescue Services, and HM Crown Prosecution Service Inspectorate, Making it fair a Joint Inspection of Disclosure of Unused Material in Volume Crown Court Cases, July 2017
19 CPS, National Police Chief’s Council, College of Policing, the National Disclosure Improvement Plan, January 2018
Published: 20 July 2018