2The extent of failure
Disclosure as a fundamental question of fairness
The role of disclosure in the justice system
18.Throughout this inquiry we have been told that disclosure is central to the justice system, and that failures can be life-changing for those affected. Many individuals wrote to us with personal stories of disclosure failures including people who had been accused and convicted as well as victims’ representatives.20
19.It is known, and has been for some time, that failures to disclose evidence have led to miscarriages of justice. In 2016 the Criminal Cases Review Commission (CCRC), the organisation set up to investigate suspected miscarriages of justice, stated that “[t]he single most frequent cause [of miscarriages of justice] continues to be failure to disclose to the defence information which could have assisted the accused.”21 But issues with disclosure are wider than these miscarriages of justice, as the Chief Inspector of the CPS told us:
… [t]he disclosure problem itself is broader than [miscarriages]. Late disclosure causes all sorts of difficulties within the criminal justice system. It wastes time and resources. It means that cases are delayed and that victims do not see justice. It is a waste of everyone’s time, but, as I said, the really serious issues are the miscarriages that may result.22
20.Joanna Hardy, Barrister at Red Lion Chambers, said:
… [n]o one wants to be wearing the prosecution wig when a disclosure failure happens. Similarly, no one wants to be down in the cells with the defendant if there has been a disclosure failure and it has gone wrong.23
21.We heard that disclosure is an integral feature of the administration of justice, and is part of every case which goes through the courts. As Angela Rafferty QC, Chair of the Criminal Bar Association, told us, “[t]here have been cases across the criminal spectrum where these failings have come to light”.24 While the cases that have featured in press coverage have, predominately, been sexual offences, the data provided to this inquiry by the Crown Prosecution Service shows that only about 1 in 50 of the cases the CPS identified as having been stopped due to disclosure errors in 2017–18 related to sex offences.25
A timeline of failings
22.It has been widely acknowledged for some time that there are persistent problems with the practice of disclosure. We have seen at least six reports in as many years that have highlighted issues and made recommendations.
Box 1: Reports that have highlighted problems with the disclosure regime
a) In 2011 the then Senior Presiding Judge, the Rt. Hon. Lord Justice Gross, led a review of disclosure in the Crown Court, which was “prompted by concerns as to the operation of the disclosure regime”.26
b) In 2012, the Rt. Hon. Lord Justice Treacy and the Rt. Hon. Lord Justice Gross returned to the issue, publishing their “Further review of disclosure in criminal proceedings: sanctions for disclosure failure”.27
c) In 2014, Lord Justice Gross reviewed disclosure in Magistrates’ Courts, noting that “misapplication of the disclosure procedure was raised with us by several groups with whom we consulted”.28
d) In 2015 Lord Justice Leveson’s review of efficiency in the CJS commented that “[o]ne of the major issues was the present failure of the police and the CPS to meet deadlines for disclosure”.29
e) In July 2017 Richard Horwell QC reported on the reasons for the collapse of the case of ‘Mouncher and others’, stating that “[d]isclosure problems have blighted our criminal justice system for too long”.30
f) In July 2017 a report by HM Inspectorate of the Crown Prosecution Service (HMCPSI) and HM Inspectorate of Constabulary, Fire and Rescue Services (HMICFRS) highlighted “extensive issues” with police and CPS handling of disclosure.31
23.Much of the evidence we received as part of this inquiry highlighted that people working in the criminal justice system knew that disclosure failures were happening.32 Angela Rafferty QC, Chair of the Criminal Bar Association told us that “the disclosure process is a complete mess and has been a mess for many years”.33 Fair Trials International wrote that “[it] has long been known among the legal profession: disclosure failures are not rare or isolated; they are systemic, routinely affecting cases of all kinds at every stage”. Even the then Attorney General admitted to us, in oral evidence, that disclosure failure was “a serious problem” as far back as 1996.34
24.Data provided to us by the CPS shows that between 2013–14 and 2017–18 the number of cases stopped due to disclosure failures increased by 40%.35 This data does not present a total picture of the scale of disclosure errors, and we discuss this in more detail in chapter 3.
25.Nick Ephgrave, the Criminal Justice lead at the National Police Chief’s Council (NPCC), acknowledged that “[s]ometimes we solve a problem and we deal with it. We think it is dealt with and we move on to something else. Actually, behind us, it falls apart again. We need to learn that lesson, as well as dealing with all the other issues that are there.”36
26.Problems with the practice of disclosure have persisted for far too long, in clear sight of people working within the system. Disclosure of unused material sits at the centre of every criminal justice case that goes through the courts and as such it is not an issue which can be isolated, ring fenced, or quickly resolved. These problems necessitate a concerted, system wide and ongoing effort by those involved, with clear leadership from the very top. It is disappointing that we have heard the same issues raised throughout this inquiry as have been noted by inquiries as far back as 2011, and it is further disappointing that the Attorney General in place at the time of inquiry stated to us that he was aware of problems going back as far as 1996 but yet the problem had persisted and apparently worsened under his watch. We are also surprised and disappointed that the DPP, who should be closer to these problems on a day-to-day basis, does not appear to have pressed for more urgent action to address the worsening situation during her time in post.
27.Resolving issues in the disclosure process and rebuilding public confidence in the justice system requires an ongoing commitment from the new Attorney General, the Director for Public Prosecution, the Minister for Policing, and the National Police Chief’s Council, and from partners across the justice system. The Attorney General should lead on seeking the support of HM Courts and Tribunals Service, the Judiciary, and the defence community.
Disclosure as a symptom of a system under strain
28.We received evidence highlighting that problems with disclosure might be driven in part by wider changes to the justice system, and notably a reduction in resources available across the system, including funding for the CPS and police (covered in paragraph 31) and public funding for criminal defence (or legal aid, covered in paragraph 38). When she gave evidence to us Angela Rafferty QC, Chair of the Criminal Bar Association, highlighted a Public Accounts Committee finding from 2016 that “the criminal justice system is close to breaking point”. She stated that “what is happening right now [with disclosure] is that the effects of those cuts are coming home to roost”.3738
29.The passage of a case from the point of a report to police through to a verdict and (if guilt is determined) a sentence involves three main Government Departments and their agencies. Central government funding for the police comes from the Home Office and the Crown Prosecution Service is superintended by the Attorney General and its budget is voted on by Parliament. The Ministry of Justice does not fund police or the CPS, but they do provide essential services such a payment for defence lawyers (through legal aid) and administration of the courts. This is show in Box 2 below.
Box 2: responsibilities within the criminal justice system
Source: National Audit Office, A Short Guide to the Home Office, September 2017
Funding for disclosure
30.The CPS and police have made efficiency savings over a number of years:
a)CPS net expenditure fell by 27%, from £672 to £491m between 2009 and 2017.39 The number of full time equivalent staff employed by the CPS fell from around 6,200 to around 5,500 between January 2014 and December 2017. This is a reduction of 11%.40
b)Real terms central government funding to Police and Crime Commissioners fell by 25% between 2010 and 2016. The police workforce reduced by more than 45,000 (19%) between March 2010 and March 2017.41
31.One of the most prevalent themes in submissions to this inquiry was that problems in disclosure were felt to be a symptom of reductions in resources available to police and prosecutors.42 The Law Society noted in their submission that “[a]t the same time as this increase in the volume of material, on-going cuts to the funding of the police, the prosecuting authorities and the defence have seen a reduction in the number of people dealing with cases”.43
32.The Association of Police and Crime Commissioners stated in their evidence that “the view of PCCs is that current funding arrangements no longer ensure the resilience of police forces to respond to further increases in demand”.44 The Public and Commercial Services Union (PCS), a union which represents public servants, states that “PCS believes that deep cuts have led to a chronic lack of resources in the CPS and that significant additional work placed upon lawyers and the police [is] to blame for the current crisis in confidence in prosecution of the disclosure of unused material in criminal cases”.45
33.However, the senior police officers and Minister we spoke to stressed that problems with disclosure had wider causes than the funding constraints. Nick Ephgrave, criminal justice lead for the NPCC, told us that:
… when you add [ … ] the very real challenges that we have had as a service around the austerity measures, it does create quite a toxic mix, but the answer is not just more resources. I think we need to fix the mindset issue, try to harness technology to solve some of the issues that technology is presenting [ … ] and, once we have done those things, maybe put our minds to resourcing.46
Nick Hurd, MP, the Minister for Policing and Fire, told us in his oral evidence that he had “a primary role in relation to resources and making sure that the police have the resources they need.”47 We asked him about police resourcing and he said:
… are there overstretched police officers? Yes. I have been very clear about that and have responded. [ … but] the primary issue is a cultural and attitudinal one: insufficient importance has been attached over many years to disclosure and it has not been seen as it should be, which is fundamental to the process of good, ethical investigation, but too often as a bureaucratic bolt-on.48
34.The National Disclosure Improvement Plan states that “across the criminal justice system resources have been stretched as the nature of the crimes we investigate and prosecute continues to evolve”. It goes on to say there is a significant resource implication to be considered concerning digital media, and a further significant resource implication in the capturing of third party material which it notes has increased dramatically. The plan states that the CPS, NPCC and College of Policing have “identified areas where technology could help the disclosure process” but it does not make any commitments to further funding.49
Wider changes
35.The following paragraphs talk about wider changes which impact on disclosure, including the payment of defence practitioners and some services provided by the Ministry of Justice and its arms-length bodies.
36.Under the CPIA 1996 the police and CPS are responsible for reviewing material and, when it is deemed relevant, disclosing it to the defence. There is provision in the CPIA 1996 for the defence to submit a statement (the defence statement) to the prosecutor and court that outlines their case. This statement might elicit further disclosure of unused material that is deemed relevant because it could assist the defence case or undermine the prosecution case.
37.In relation to Crown Court cases, work done by defence teams is paid for through two legal aid schemes: the Litigators’ Graduated Fee scheme (LGFS), and the Advocates’ Graduated Fees Scheme (AGFS). The former applies to solicitors, and the latter applies to advocates–mainly barristers, but also solicitors who have acquired rights as Higher Court Advocates.
38.This Committee took evidence on the changes to the schemes, which came into effect on 1 December 2017 and 1 April 2018, respectively. The two evidence sessions took place on 22 May 2018 and 12 June 2018. Only part of the evidence was relevant to this inquiry and the Committee intends to return to the issue of criminal legal aid separately. We deal here with those elements that relate to payments for reviewing evidence, and in particular unused material.
39.Defence practitioners raised concerns that recent changes to the LGFS have reduced the number of pages of used material (known as the “pages of prosecution evidence”) they are paid to review to 6,000. The Defence Practitioners Working Group noted that “after 6,000 [pages of prosecution evidence] solicitors will need to make a claim for ‘special preparation’. This increases pressure and will eventually result in a [financial] loss”.50 When we took evidence from the Law Society and the Criminal Law Solicitors’ Association in relation to criminal legal aid [22 May 2018], we heard that payment for special preparation was discretionary, and that many claims are refused by the Legal Aid Agency; if payment is made, it is at a low hourly rate. As a result of the work involved in submitting claims, many solicitors’ firms do not consider it economic to do so and decide to write off the work.51 It is not possible to make a direct to comparison between payment for special preparation and previous or other schemes because of the changed way in which fees are now paid but Daniel Bonich of the CLSA told us that payment was around £45 per hour.52
40.Neither the LGFS or the AGFS pay for the defence to review unused material. The Law Society stated in their written evidence that “this poses a real challenge for defence practitioners to be able to undertake all the work necessary and fill the gaps in the disclosure process.”53 Joe Egan, president of the Law Society, stated in his oral evidence that the current arrangement was “fixed at a time when there was nothing like the amount of unused material that there is today.”54 Chris Saltrese Solicitors noted that “[a]s the defence is no longer funded through legal aid to analyse unused material, many responsible defence solicitors, including Chris Saltrese, can no longer accept legally aided defence work in these complex cases where the unused material may far outweigh the evidence relied on by the prosecution.”55
41.Joanna Hardy, Barrister at Red Lion Chambers, reflected the sentiment of many of the practitioners we took evidence from when she told us:
… [legal aid lawyers] deploy, through sheer professional pride, as many hours and as much work unpaid as we need to, to ensure that the show is kept on the road and that we can stand up and prosecute or defend a case, confident that the playing field of disclosure is level and fair.56
42.We were told that there are a range of other tasks that are central to disclosure for which lawyers are not specifically remunerated through legal aid. A group of firms and counsel, the Defence Practitioners Working Group, noted in their evidence to us that AGFS does not contain a “separate fee for drafting the defence statement, compiling disclosure requests, or drafting [an application to the judge for disclosure from the prosecution]. Advocates regularly go unpaid for reading enormous quantities of unused material in both paper and digital format”.57
43.Overall, the Ministry of Justice had reduced its spending by 13% between 2010–11 and 2016–17, and was expected to make further reductions of 11% between 2016–17 and 2019–20. This includes cuts to the Legal Aid Agency and to HM Courts and Tribunals Service. There were 15,749 staff members in HM Courts and Tribunals Service in 2016–17, a reduction of 24% since 2010–11.
44.A number of people who submitted evidence noted the impact of these reductions, including Fair Trials International who noted “the Ministry of Justice has been particularly hard hit by recent cuts to public expenditure, and will have taken a ‘real-terms cumulative decrease’ of 40% (or £9.3bn) in the period 2010–2020”.58 Some witnesses gave examples of the cumulative impact of cuts on areas that were not directly related to disclosure but impacted on the viability of the system. For example:
a)Daniel Bonich of the Criminal Law Solicitors’ Association talked about difficulties meeting a client in prison because staff were not available to escort the prisoner, which impacts on the production of the defence statement.59
b)Dr Tully, the Forensic Science Regulator, gave evidence to this inquiry in relation to the growth in digital material (e.g. evidence from mobile phones). She told us that “more funding is needed for frontline digital forensics. There is little or no room for personal development. There is little or no room for technology development and quality improvements”.60
c)Dr Tully’s point was reaffirmed by evidence from academics at Northumbria University who noted “cuts across the system” and stated “concerns exist about the availability of forensic evidence to the defence, with forensic service providers charging large sums of money for access to data and the results of forensic tests. If unable to receive public funding, or have private means for meeting such costs, it threatens ‘equality of arms’ if the defence are unable to access the scientific evidence”.61
The cost of failures to disclose
45.We heard that failures to properly disclose unused material have cost implications for the criminal justice system. Where unused material is disclosed correctly but very late in the day, there might have been large expenditure on an investigation, case preparation, and court time which is wasted if the case is discontinued. The Chief Inspector of the CPS told us that “cases were being dropped late in the day, sometimes at the door of the Court, sometimes during the course of a trial, and, as has been indicated, that leads to waste, and not only to financial cost but to the personal cost that occurs when victims, witnesses and defendants ready themselves for the trial process only to find either that the case has been postponed or that the case is dropped altogether”.62 Written evidence from the Criminal Justice Alliance noted that “[c]ollapsed cases because of disclosure failings are not only a costly waste of resources but a considerable source of distress and anxiety for all parties involved–defendants, victims and witnesses”.6364
46.Trials which do not go ahead as planned are referred to in the statistics as either cracked (the case is stopped and trial does not need to be rescheduled) or ineffective (the trial is delayed and will need to be rescheduled). In 2017 there were around 52,000 cracked trials, and around 20,000 ineffective out of a total of around 137,000. In the Crown Court there were around 12,000 cracked trials and around 18,000 ineffective out of a total of around 35,000. In 2016, the National Audit Office (NAO) reported that “collapsed cases waste resources”. Some, but not all, of these collapsed cases will be due to disclosure errors.
47.The NAO report estimated that “in 2014–15 the CPS spent £21.5 million preparing cases that were not heard in Court. The cost of preparing a case varies depending on the case, but the average direct cost to the CPS associated with progressing a single case to the point of trial is £975 in the Crown Court. The Legal Aid Agency (LAA) spent £93.3 million during 2014–15 on defence counsels to represent defendants whose cases never went to trial, excluding guilty pleas”.65 Even more seriously, where disclosure is not done correctly but the case proceeds and a miscarriage of justice results, this has life changing consequences for individuals involved, alongside the financial cost of sentences and appeals.
48.When police and prosecutors do not undertake their disclosure duties correctly cases may be delayed, may collapse or a miscarriage of justice may occur. As well as the human cost, this wastes valuable resources, and has potentially life-changing implications for individuals involved which of course cannot be quantified in merely financial terms. At times when resources are already tight police, the CPS and the Ministry can ill afford to waste resources on fixing the costly mistakes that occur if there is not appropriate investment in getting decisions right in the first place. The National Disclosure Improvement Plan notes, under its section on capacity, that the system is facing significant strain but it does not commit any additional resources. We agree with the view, expressed by Ministers and officials, that disclosure is not just a matter of resources but we also feel that the need for additional resourcing must be considered.
49.The Government should consider what level of investment it deems necessary to ensure that the police and CPS are getting disclosure right, to prevent the costs associated with disclosure failures, and to prevent miscarriages of justice. We expect the Attorney General and Ministers from the Home Office to write to this Committee before the end of the financial year to explain what investment is needed, where, and over what time period.
50.We feel that the issues raised in this inquiry are symptomatic of a criminal justice system under significant strain. We are particularly concerned by evidence we have heard from defence practitioners about the lack of remuneration for reviewing unused material and the impact of changes to the Litigators’ Graduated Fee Scheme in reducing payment for reviewing pages of prosecution evidence.
51.We expect the Ministry of Justice to write to this Committee in response to this report, outlining what it has done to assess the impact of operational and funding changes it has made over the last five years, on the administration of justice and specifically on disclosure. We are concerned about criminal legal aid arrangements and have taken evidence on this matter. We are undertaking further work on legal aid which we intend to conclude shortly.
The digital crater
The changing volume and nature of material collected by police
52.Many of the submissions to this inquiry stated that the growth in digital technology had led to an increase in the volume and complexity of material collected by the police, and a strain on the capacity of police and prosecutors to review and disclose material.66 Professor Peter Sommer explained in his written submission to us that “police say that the average UK home contains 7.4 digital devices” and “there are also the devices we interact with–bank cash machine ATMs, shop sale systems, restaurants, transport payment systems, when we use public wifi [ … ] when we get caught on CCTV.”67 Barrister Joanna Hardy told us that “it is not a digital footprint; it is a digital crater”68 explaining in detail that a single phone can tell you “what time [the user] woke up because they have an alarm app [ … ] what they had for breakfast because they have a health app [ … ] what they put in their satnav, where they went, what time they got there, potentially how fast they drove, where they parked and what they had for lunch. If they go to a bar [ … ] a taxi app might show what time they left”.69 The material contained on a digital device will also include information about friends and family, or “third parties”.
53.The NPCC and CPS submission to this inquiry noted that in large fraud cases, and complex Crown Court cases, the amount of digital material collected is likely to be large, but other submissions noted that digital material is now common in all types of cases. As the Magistrates’ Association stated in their written submission to us “it is likely that disclosure issues in Magistrates’ Court are becoming more complex due to the proliferation of social media, other online forms of communication and the use of smart phones and tablets.”70 Much of the evidence we heard related to the examination by police of mobile phones belonging to defendants and complainants.
54.Police must review the material they collect to decide if it is relevant for the purpose of disclosure. The Association of Police and Crime Commissioners stated in its written evidence to us that the “amount of third party material to be reviewed by the police and the CPS causes significant delays to the justice process and impacts on all parties involved”,71 and the Police and Crime Commissioner for Essex noted that “[t]his has had a significant impact on the resources required to gather all relevant information as part of an investigation.”72
55.We heard that some police forces have “kiosks” available which they can use to make a forensic image (an exact copy of the content) of a mobile phone, but as Mike Cunningham, head of the College of Policing, explained in oral evidence “[police] forces are in different places in relation to this [ … ] Some forces are pushing ahead [ … ] other forces have more catching up to do.” Following the session, the National Police Chiefs’ Council and the College of Policing wrote to explain that “[o]f the 43 forces in England and Wales, 79% (34) are using kiosks and 21% (9) are not using kiosks.”73
56.When we took oral evidence from digital forensics experts they told us that skills for analysis were as important as the technology. Dr Jan Collie explained, in her oral evidence, that the kiosk produced “a machine report; it is not an analysis.”7475 The download which the kiosk produces can be very lengthy which means that resources are required to review it in order for it to be disclosed if relevant. By way of an example, the Police and Crime Commissioner for Northumbria stated in her written submission that the kiosk in use in Northumbria “produces on average 35,000 pages of data per mobile device.”76
57.We also heard that analysing digital evidence is more complicated than processing large volumes of printed material. Professor Sommer noted to us that “people confuse the print-out or the copy of a piece of evidence with the actual evidence. One of the things one always has to do is go back and say, “Where did this come from? How did this particular item arrive on a device or on the cloud, and can you attribute it to somebody who is being accused?” That is an investigatory skill”. Dr Jan Collie explained “[t]here is evidence everywhere now” including in cloud storage, and in user activity copied between devices linked by the same online accounts. This creates a multitude of difficulty including accessing material, for example if evidence is backed up to the cloud or on social media.77 It might also be important to ensure the investigator knows who engaged in online activity, a task which is often described as “putting fingers on the keyboard”, and which might be more complex when online activity is copied between devices.78
58.In their written submission, the College and the NPCC told us that “[o]ne of the priorities being pursued by the Technology Working group under the National Disclosure Improvement Plan is the identification of tools that will assist officers in analysing the material that they obtain via the kiosk examination, making this process more efficient and effective”. They also stated that new training (covered in more detail in chapter 4) had been re-designed and will cover amongst other things “emphasise the importance of digital material as potential sources of evidence”.79
59.Some witnesses also noted that problems with disclosure are more systemic and pre-date the increase in digital material. HM Inspector of Constabulary and the Fire and Rescue Service, Wendy Williams, told us in her oral evidence: “problems that we identified in relation to disclosure well predate both austerity and the influx of digital material”. This sentiment was reflected in some of the written submissions, including that from the Centre for Criminal Appeals and Cardiff Law School Innocence project, who stated that “disclosure failings are not new. Nor are they limited to particular groups of cases such as sex cases or those involving large amounts of digital material.”80
60.Angela Rafferty QC, Chair of the Criminal Bar Association, stressed that while the growth in digital material presented a challenge it was not the driving factor undermining disclosure, stating that “[i]f the digital crater [ … had] come to us at a time when disclosure was working very well, and the police and CPS were properly resourced and everybody was well trained, we would probably find it a challenge but we might be able to meet it.”81
61.The National Disclosure Improvement Plan contains some commitments on technology, including to establish a joint technology working group. The DPP supplied us with the terms of reference of the technology group, which included assigning actions and overseeing progress against the recommendations made by the Joint Inspectorate in 2017, and in the Mouncher report.828384
62.It is clear, from the evidence that we have heard, that the growth in digital material presents a challenge to police and prosecutors. We believe that police forces are not always adequately equipped or properly trained to handle the type and volume of evidence that they now routinely collect and that this can lead to errors when reviewing and disclosing material and therefore has the potential to lead to miscarriages of justice. We welcome the formation of a technology group, as outlined in the National Disclosure Improvement Plan, but action must lead to improvement.
63.The Home Office, in consultation with the CPS, the National Police Chiefs’ Council and the College of Policing, should lead on producing a comprehensive strategy to ensure that all 43 police forces are equipped to handle the increasing volume and complexity of digital evidence. This strategy must consider skills as well as technology and should be underpinned by appropriate investment. This strategy need not infringe on the operational independence of the police. We expect the Minister for Policing to report to this Committee on the status of the strategy by the end of 2018. When the Minister reports to us we expect that he will have identified key actions and dates the strategy will include, and the date by which we can review a final draft.
Transfer of material for the purpose of disclosure
64.Once material has been reviewed and scheduled it must be transferred between police, CPS and the defence. We heard that efficient and effective transfer of material between the police, CPS and defence was sometimes undermined by poor communication, inadequate digital systems and variations in local systems and practices within the police. In their 2017 report, HMCPSI and HMICFRS found that standalone local policing systems struggled to interact with the CPS national electronic case management system (CMS). Inspectors found that the majority of police systems operated with “a lack of available memory [ … ] which prevents larger documents from being sent as part of an electronic file package” and that this resulted in evidence being mislaid or even lost.85 Concerns about this were repeated by witnesses in this inquiry, including defence practitioners, who told us that evidence is sometimes sent on a CD-ROM, or even a cassette tape rather than digitally, which is inefficient and carries the potential risk of information being lost or compromised.86
65.We were told by NPCC that “one thing we are very committed to doing is to try to transfer digital evidence and material electronically to the CPS rather than send it on disk [ … ]. That is quite complicated to achieve across 43 forces, so we now have a business case agreed.” Nick Hurd MP, the Minister, told us that the Home Office had funded pilots to transfer evidence digitally which were ongoing.
66.We have also heard that the digital case system is not set up to transfer unused material to the defence team. The Crown Prosecution Service told us that they had been in contact with HM Courts and Tribunal Service about enabling the Digital Case System to accommodate disclosed material.87
67.Communication between the CPS, police and defence teams was also raised as a concern by defence practitioners, who noted that they sometimes do not know who the prosecutor in charge of the case is, or how to contact them to resolve issues with disclosure. Chris Saltrese Solictors told us that “the digital case system [ … ] has paradoxically resulted in a diminution of effective communication between the CPS and the defence and a lack of ‘ownership’ of case material and coherence. When material is added to the system the defence may not be notified, while on other occasions material relied on in case summaries may not be on the system at all”.88
68.We wrote to the CPS to ask them about case ownership and they told us that in cases where the CPS has provided the charging decision a prosecutor is either allocated before the first hearing (in bail cases) or after the first hearing (in custody cases), until the conclusion of the case. In cases charged by the police, where a not guilty plea was anticipated, or where a not guilty plea was entered (if not anticipated) a named prosecutor is allocated to that case until its conclusion. They went on to state that, following a review of 490 cases, they identified that this had happened in 66% of Crown Court cases and 71% of Magistrates’ Court cases.89
69.We are concerned that digital systems are not equipped to transfer the type and volume of information that is now routinely handled by the police and CPS, but we welcome work the Minister said was ongoing to remedy this.
70.We welcome the new commitment on the Digital Evidence Transfer System made in the National Disclosure Improvement Plan, and commitments made by the Minister in oral evidence to us. We expect the National Police Chiefs’ Council and the Crown Prosecution Service to provide an update on progress with the business plan to this Committee by the end of 2018. We would welcome action by CPS and HMCTS to get disclosed material onto the Digital Case System and request that they keep us up to date on progress.
20 For example: An individual 4 (DIS0019); An Individual 10 (DIS0021); An individual 6 (DIS0027); Mr Samuel Armstrong (DIS0034); False Allegations Support Organisation (DIS0040); An individual 2 (DIS0052); End Violence Against Women Coalition (DIS0055); Rape Crisis England and Wales (DIS0053); GSG Law (DIS0012); An individual 3 (DIS0010); An individual 8 (DIS0001); An individual 7 (DIS0006); An individual 5 (DIS0035); An individual 14 (DIS0015); An individual 9 (DIS0063); An Individual 12 (DIS0077); An Individual 11 (DIS0078); An individual 15 (DIS0086)
21 Criminal Cases Review Commission, Annual Report and Accounts 2015/16, accessed on July 29 2018
26 The Rt Hon. Lord Justice Gross, Review of Disclosure in Criminal Proceedings, September 2011
27 The Rt. Hon. Lord Justice Gross The Rt. Hon. Lord Justice Treacy, Further review of disclosure in criminal proceedings: sanctions for disclosure failure, November 2012
28 Judiciary of England and Wales, Magistrates’ Court Disclosure Review, May 2014
29 by The Rt Hon Sir Brian Leveson President of the Queen’s Bench Division, Review of Efficiency in Criminal Proceedings, January 2015
30 Richard Horwell QC, Mouncher Investigation Report, July 2017
31 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
32 For example: Dr Hannah Quirk (DIS0054); Fair Trials International (DIS0058); FDA (DIS0038); Criminal Cases Review Commission (DIS0042); Centre for Criminal Appeals and Cardiff Law School Innocence Project (DIS0032)
39 Crown Prosecution Service, Annual Report and Accounts 2016–2017, July 2017
40 Crown Prosecution Service, monthly workforce management information, downloaded in May 2018
41 National Audit Office, A Short Guide to the Home Office, 2017
42 For example: Criminal Justice Alliance (DIS0043); Defence Practitioners’ Working Group (DIS0047); Information Commissioner’s Office (DIS0031); Magistrates’ Association (DIS0023); police, Fire and Crime Commissioner for Essex (DIS0051); Rape Crisis England and Wales (DIS0053); Science and Justice RIG, Northumbria University. (DIS0039); and the Criminal Bar Association (DIS0022); Dr Hannah Quirk (DIS0054); Arthur Michael Robinson (DIS0011); An individual 17 (DIS0087)
49 CPS, National Police Chief’s Council, College of Policing, the National Disclosure Improvement Plan, January 2018
52 Q23
65 National Audit Office, Efficiency in the Criminal Justice System, March 2016
77 Parliamentary Office of Science and Technology, research briefing, Digital Forensics and Crime, March 2016
85 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
Published: 20 July 2018