Disclosure of Evidence: no room for complacency

Failings in relation to disclosure of evidence by the Crown Prosecution Service (CPS) in serious cases has led to a drip of negative headlines about the CPS and the police over recent times. So it’s no surprise that recent figures reveal any recent CPS improvements still have a long way to go.

According to HM Crown Prosecution Service Inspectorate (the inspectorate), CPS disclosure remains below par with a “very low” baseline performance, even though there have been early signs of improvement. The inspectorate, which inspects the work of the CPS, the Serious Fraud Office and other prosecuting agencies, recently examined how well the CPS is complying with its duty to disclose evidence not relied on by the prosecution.

The report, Disclosure of unused material in the crown court, sounds a positive note that the “overall direction of travel is positive” but lack of resources is proving an obstacle.

Last October, it was reported that according to CPS figures – disclosed to the Times after a freedom of information request – an average of two criminal cases every day were dropped in 2018 following an abuse of process or delays in bringing them to court, compared to one a day four years previously.

The rules (mainly the Criminal Procedure and Investigations Act 1996 (CPIA)) require the CPS to provide the defence with schedules of all unused material (ie. that which will be relevant to the investigation but is not part of the case) and give the defence any material that undermines the prosecution case or assists the case for the accused.

The figures reveal 1,078 cases were discontinued because of disclosure failures between January and September 2018. There were 567 in the whole of 2014.

A significant number of collapsed cases followed rape charges, but in one case – involving alleged VAT fraud – the judge warned of "systemic failures" in disclosing evidence. The defendant in that case was charged with conspiracy to evade VAT by selling nearly £500,000 of laundered ‘red diesel’ fuel, but he denied any wrongdoing.

A four-year HMRC investigation ensued, but one month into the trial itself, it was discovered that a huge amount of information, held on the laptop of the HMRC investigating officer, had not been disclosed on a schedule of unused material. The judge refused an application for an adjournment and the case collapsed.

HHJ Trevor-Jones said in his ruling that the failure to disclose was “negligence to a lamentable degree” and “indicative of a more systemic failure going beyond the omissions of just one officer”. The outcome also led to a linked trial being abandoned before it had begun.

What do the figures show?

The inspectorate examined 555 live cases two weeks before the trial start dates and 560 cases at the charging stage, across all 14 CPS areas. Though it found signs of improvement, the improvements came from “a low baseline of performance”, it said performance must be improved to reach an acceptable standard.

Notable improvements highlighted by the inspectorate include a 20 per cent increase in the number of cases in which “the CPS charging advice dealt properly with disclosable and non-disclosable unused material being assessed by inspectors of fully meeting the required standard”.

However, of major concern is that though an improvement was identified in relation to pre-charge cases of the CPS identifying police failings in handling of unused material (and feeding that back to the police) there is still very poor performance - with police not fully completing the correct forms for evidence in 80 per cent of cases.

The inspectorate makes clear that performance needs to improve significantly with effective training and supervision a priority. It did not make any specific recommendations on the basis it would be “counterproductive”.

But improvements could stall without more effective training. The chief inspectorate stated: “What is of greater concern is that, however good the training of the police, unless those tasked with putting files together get regular and frequent exposure to disclosure issues the training will not bed in and improvements may not materialise.”

In response to the report, Caroline Goodwin QC, chair of the Criminal Bar Association, said: “If this report had given the equivalent of an Ofsted grading for a school it would still, tragically, not move out of the bottom ranked ‘failing’ for the key areas relating to the collation and disclosure of evidence across what the Inspectorate categorises as volume Crown Court work.”

She added: “Criminal defence barristers are still not paid for the many hours spent examining unused material…It is this task, within what the inspectorate reveals as a still failing system due to starved and inadequately trained professionals at both police and CPS, that is often the difference between liberty and imprisonment.”

She said the inspectorate’s message is clear: “We need immediate, substantial and crucially sustained reinvestment across both the police and CPS – and indeed by the MOJ back into criminal legal aid – to ensure the job of properly investigating and prosecuting reported crime gets done.”

As noted in the report, the failure to deal effectively with disclosure has a corrosive effect on the criminal justice system; and its poor handling undermines the principles of a fair trial and could result in miscarriages of justice.

In his foreword, the chief inspector said: “It is in the day to day work in the Crown Court that disclosure problems arise. This work … suffers from the impact of stretched police resources and the lack of understanding of criminal justice matters by large numbers of inexperienced police officers who are only infrequently required to compile a prosecution file.”

He also referred to the problem of lack of resources including under-resourced CPS staff struggling to cope with the sheer volume of work. The slow signs of improvement are undoubtedly a start, but there is clearly a long way to go to reduce, in any meaningful way, the risk of future trials collapsing or being abandoned.

The report’s remark that there is “no room for complacency” is quite an understatement.



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