Disclosure of evidence in criminal cases Contents

Conclusions and recommendations

The extent of failure

1.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. (Paragraph 26)

2.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. (Paragraph 27)

3.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. (Paragraph 48)

4.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. (Paragraph 49)

5.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. (Paragraph 50)

6.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. (Paragraph 51)

7.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. (Paragraph 62)

8.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. (Paragraph 63)

9.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. (Paragraph 69)

10.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. (Paragraph 70)

Leadership, oversight and culture

11.We welcome the National Disclosure Improvement Plan, and note that it names the people responsible for ensuring that it follows into real and lasting change. We expect these people to be personally accountable for delivery of the plan. (Paragraph 78)

12.So that signatories to the National Disclosure Improvement Plan can be held to account, they should publish an update on progress quarterly until each action can be closed. This Committee will keep a watching brief on progress. (Paragraph 79)

13.We did welcome the comment from the then Attorney General that, ultimately, it is the holder of his office who is responsible for disclosure , but we do not feel ministerial responsibility for disclosure has been clear enough to date. It is concerning to us that successive Attorney Generals have not acted more quickly and proactively on disclosure issues which have been widely acknowledged for many years, and it is of note that the Attorney General’s guidelines have not been reviewed since 2013 in spite of concerns being raised about disclosure a number of times. We expect that the Attorney General’s review will make it clear that he is responsible for disclosure failings and for ensuring improvement, and we will hold him to account for driving this improvement. (Paragraph 80)

14.The new Attorney General should take his appointment as an opportunity to clarify what is meant by “to superintend” the Crown Prosecution Service, and it should be very clear that he is accountable to Parliament for the performance of the CPS. As a demonstration of his ongoing responsibility for disclosure, he should personally sign off on his guidelines at regular, defined intervals, either stating that they remain sufficient, or noting amendments. We expect that ongoing review will incorporate restatement or amendment of the current guidelines, and we request that it include a commitment to sign off at stated intervals. We expect the next Director of Public Prosecutions to proactively address disclosure throughout their tenure. The culture of ‘it didn’t start on my watch’ is pervasive and undermining of public confidence. It must not continue. (Paragraph 81)

15.We have already referred to the responsibilities of the Attorney General, who “superintends” the CPS, but the day-to-day management of the service and ownership of it performance, including in relation to disclosure, rests clearly with the Director of Public Prosecutions. We do not feel that the Director has sufficiently recognised the extent and seriousness of the failures of disclosure by police and the CPS that have been highlighted by evidence given to us and, as we have noted in paragraph 81, have been recognised over a number of years. It is surprising and concerning that the Director of Public Prosecutions did not know that the case against Liam Allan had not been recorded as a disclosure error at the point that it was stopped. The Director has not acted as quickly and proactively as required and this, it appears to us, has permeated throughout the organisation. (Paragraph 94)

16.Data collected by the Crown Prosecution Service did not enable the DPP or the then Attorney General to know if their prosecutors were getting decisions right or wrong. We believe that this might have allowed disclosure errors to prevail and that miscarriages might have resulted. The DPP has said to us, in writing, that it is not the role of the CPS to pursue convictions at all costs, but it is of note that the CPS use conviction rate and number of hearings to measure their performance. The Code for Crown Prosecutors is clear “Prosecutors must be fair, independent and objective… Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction”. The fact that performance metrics do not fully reflect the purpose of the CPS is compounded by a significant underestimation of the number of cases that stopped due to disclosure errors in the CPS’ internal data. The RASSO review indicates that data the CPS did collect on cases that failed due to disclosure might have underestimated the number with disclosure errors by around 90%. Data the CPS did collect did not include cases which proceeded with disclosure errors. We welcomed the commitment by the Director of Public Prosecutions and the then Attorney General to improving their performance measures so that they can be held to account in future, and we expect that the incoming Attorney General will uphold this commitment. It remains disappointing, however, that this poor data collection regime was allowed to continue for so long in spite of reports suggesting that disclosure errors were widespread. (Paragraph 95)

17.The new Attorney General should make it clear, in the review, that the duty to ensure “the right person is prosecuted for the right offence” is paramount, even if this is at the expense of timeliness or conviction rate. The Director of Public Prosecutions should set measures that enable her (and her successor) to report against this objective. We expect this to include improving data on cases that fail to ensure that the CPS are capturing and reporting on a true number of cases where errors have played a part. Although we welcome the National Disclosure Improvement Plan, we also think a more thorough review of the data, that goes beyond just rape and sexual assault cases, is required. The CPS should also consider what data they can capture on cases which proceed with disclosure errors but are not stopped. We expect Crown Prosecution Service performance measures to be updated before the end of the 2018–19 financial year so they can be outlined in the 2018–19 Annual Report and Accounts and reported against in the Annual Report and Accounts from 2019–20 (the first year that full data will be available). (Paragraph 96)

18.We consider that, on balance, most police forces and their officers recognise their duty as a search for the truth but that this has not been, and is still not, universal. We were encouraged by the commitment of the NPCC, outlined in their written evidence and in oral evidence from Chief Constable Nick Ephgrave, to work to ensure that officers understand their duties properly. It is fundamentally important that all police officers recognise both that they are searching for the truth; and that they have core disclosure duties which are central to the criminal justice process and are not merely an administrative add-on. Nevertheless, we believe that there is more work to do to ensure that this mindset is embedded across all police forces, and public confidence is improved. It is vital that disclosure is embedded at every stage in the process and not delegated to the most junior person as has all too often been the case in the past. (Paragraph 106)

19.We welcome the code of ethics from the College of Policing and recommend that the College consider a revision to ensure it is clear that police have a duty to follow all lines of inquiry, even when they point away from the suspect. We would like the head of the College to write to us to outline if and by when he considers this practicably possible. (Paragraph 107)

20.We consider that problems with disclosure have impacted on confidence in the justice system to such an extent that it is now an issue of national importance for the police. The recorded failures of police to disclose evidence in their possession to the defence, and the miscarriages of justice that might have resulted, could undermine confidence in policing. (Paragraph 110)

21.The Minister for Policing told us that the Home Office were reviewing the Strategic Policing requirement, and we recommend that the Minister and the Home Office should consider whether capability to execute core criminal justice duties, including disclosure, should be included. (Paragraph 111)

Knowledge and capability

22.There are clearly different perspectives held by defence practitioners and victim support groups on what might constitute sensitive information in the context of disclosure and how this should be handled. It is important that those who come forward to report serious offences, particularly those of a sexual or otherwise sensitive nature, are treated by investigators with respect and sensitivity. Their personal information should be handled in the same way and in accordance with their rights to privacy, where that is consistent with the interest of justice. The law is clear in that the right to a fair trial is an absolute right which cannot be violated to protect the right to privacy. We heard differing views on whether disclosing certain private information was always necessary to uphold the right to a fair trial, and this emphasises the need for clear guidance on this point. Guidance should also include directions on where relevant material can be appropriately redacted of personal information, and should make police and prosecutors aware of the separate but important role of the Information Commissioner. (Paragraph 127)

23.We do not consider that there needs to be fundamental change to the legislation governing disclosure but that the new Attorney General and Director of Public Prosecutions should consider clarifications to guidance to better support police and prosecutors in fulfilling their duties. The principles of the CPIA 1996 are quite simple: that material is reviewed by police and, if relevant to the case, is disclosed by the CPS to the defence. Changes since 1996, including the extraordinary advancements in technology, do not move us away from those basic building blocks. However, the volume and complexity of material now means that it is harder for police and prosecutors to undertake their duties as envisaged. This highlights the need for clear guidance on how best to apply the principles to the modern world, and appropriate resources. We echo points made by Richard Horwell QC that guidance should not be over-complicated, but that it should be simplified and clarified. (Paragraph 134)

24.The Attorney General’s review should consider whether guidelines on large volumes of material remain appropriate in light of changes to the nature and volume of digital evidence collected by police in the course of routine and complex investigations. The Attorney General should also consider providing greater clarity on the handling of sensitive material and personal data, in light of evidence about the impact on complainants, and breaches of data protection rules raised by the Information Commissioner. (Paragraph 135)

25.We welcome the efforts by the College of Policing to roll out training to police officers on disclosure and on fair trials but in order for their investment in training to be effective the College need to know that officers are completing it. We recognise that police forces are operationally independent, but we expect that all police officers will do the training required to fulfil their duties and this must include their duty to follow all lines of inquiry and disclose all relevant material. (Paragraph 144)

26.The College should start to collect data on the number of police officers who have undertaken their training on disclosure, and should report it to Ministers and publish it so it can be reviewed by this Committee. This data should include information on the rank or role of officer undertaking training, and which force they work in. This should start immediately. (Paragraph 145)

27.It is understandable that the CPS and police have focussed their efforts on Complex Crown Court cases, given the nature of the cases which have caught the public attention, but we know that there are also problems in Magistrates’ Courts which need urgent attention. We do not agree with the DPP’s assertion that disclosure in the Magistrates’ Courts is not an issue and we are concerned that disclosure errors in the Magistrates’ Courts will be left to continue if effort is not also focussed there. (Paragraph 150)

28.The new Attorney General, Crown Prosecution Service, National Police Chiefs’ Council and College of Policing should ensure that their efforts to resolve issues with disclosure, including their recommendations, are also applicable in the Magistrates’ Courts. The joint inspectorate should consider a review of disclosure in the Magistrates’ Courts, much as it did in the Crown Court. (Paragraph 151)

Published: 20 July 2018