Practical Law

This week saw the publication of two reports: a joint report from HM Crown Prosecution Service Inspectorate and HM Inspector of Constabulary, and The Mouncher Investigation Report by Richard Horwell QC, both highly critical of the way the police and the CPS handle disclosure, and calling for significant change.

Many criminal practitioners will feel a strong sense of déjà vu when reading another report detailing the various failings of the disclosure process. In 2013, the DPP published a report by HMCPSI into serious failings in the disclosure process that led to a miscarriage of justice in R v Mouncher. A decade earlier, a number of prosecutions brought by HM Customs & Excise were overturned when customs officers deliberately withheld information that a critical prosecution witness was a registered informant in the infamous LCB prosecutions.  A common theme in the failings seems to be some police officers and prosecutors treating the disclosure process as some form of side issue, rather than a vital part of the criminal justice system.

The purpose of disclosure:

Disclosure is the process in which material obtained by the prosecution in a criminal investigation, but not used in the prosecution, is provided to the defence as meeting the criterion for disclosure under section 3 of the Criminal Procedure and Investigations Act 1996. The CPIA 1996 imposes two general obligations on the Prosecution:

• The obligation on the prosecution to notify the accused of and disclose to them all the evidence on which they intend to rely.
• The obligation on the prosecution to make available to the defence any material which meets the disclosure test but which they do not intend to use. This material is often referred to as unused material.

This is normally done by the police and prosecutors preparing a schedule of material, and periodically reviewing any material gathered in the course of an investigation that isn’t served as evidence.  For more information see Practice note, Disclosure in the Crown Court.

Although disclosure can seem like a dull, administrative process, an unnecessary addition to already strained workloads, it is a vital part of ensuring fair trials and due process. The CPIA 1996 section 23(1) Code of Practice requires investigators to pursue lines of enquiry that may point away from the guilt of the principle suspects, and consequently helpful exculpatory material can often be found. In fraud cases, this can of course include evidence pointing to the consent or connivance of the offence by senior managers.

The consequences of a failure of disclosure can be stark: it will often cause delays to trials, which wastes resources and causes unnecessary distress to victims and witnesses. In more serious failings, it can lead to innocent people being convicted, or the staying of otherwise viable prosecutions as an abuse of process. It is therefore vital that the various parties involved in disclosure take the various reports seriously and ensure the recommendations are implemented. For more information see Practice note, Dealing with failures in disclosure.

The joint report:

HM Crown Prosecution Service Inspectorate and HM Inspector of Constabulary have published a joint report on the disclosure of unused material in volume Crown Court cases. The report has identified a number of aspects of concern regarding how Crown Court trials are handled by the prosecution, and how police and the Crown Prosecution Service (CPS) manage unused material.

The inspection found a number of flaws with the disclosure process, including:

• That police scheduling (the process of recording details of both sensitive and non-sensitive material) is routinely poor.
• Revelation by the police to the prosecutor of material that may undermine the prosecution case or assist the defence case is rare.
• Prosecutors fail to challenge poor quality schedules and in turn provide little or no input to the police.
• Neither party is managing sensitive material effectively and prosecutors are failing to manage ongoing disclosure.
• The auditing process surrounding disclosure decision-making falls far below any acceptable standard of performance.
• The failure to grip disclosure issues early often leads to chaotic scenes later outside the courtroom, where last minute and often unauthorised disclosure between counsel, unnecessary adjournments and – ultimately – discontinued cases, are common occurrences.

Some particularly stark figures emerged in the joint report. Of a total of 146 files reviewed to assess the overall quality of handling of unused material by the police, not a single one was rated “excellent”, and 42% of files were rated “poor”. Of the 56 cases reviewed that were identified on the CPS computer system as “unsuccessful outcomes or ineffective trials due to prosecution disclosure failings”, 62.5% were rated as “poor”. The CPS fared little better: no cases were rated “excellent” and 33% were “poor”.

The inspection has identified a number of reasons for failures in the process of disclosure which form the basis of recommendations:

• There needs to be improvement in the training provided to police and in the supervision provided to both police and prosecutors.
• There must be better communication between the two parties and in the information and communications technology (ICT) systems used to support the transfer of information.
• There needs to be a greater level of importance given to disclosure by those in key strategic roles in both agencies, especially for non-complex cases which form the majority of cases going to court.
• There needs to be a cultural shift that approaches the concept of disclosure differently, that sees it as key to the prosecution process where both agencies add value, rather than an administrative function.

The report made the following specific recommendations:

Immediately:

• Police or CPS must correctly identify all disclosure issues relating to unused material at the charging stage and this must be reflected fully in an action plan.

Within six months:

• The CPS should comply with the Attorney General’s Guidelines on Disclosure requirement and ensure that every defence statement is reviewed by the allocated prosecutor prior to sending to the police and that prompt guidance is given to the police on what further actions should be taken or material provided.
• Police forces should improve their supervision of case files, with regard to the handling of unused material. This process should be supported by the requirement for supervisors to sign the Disclosure Officer’s Report each time this is completed.
• The CPS Compliance and Assurance Team should commence six monthly disclosure dip samples of volume Crown Court files from each CPS Area, with the findings included in the CPS Area Quarterly Performance Review process.
• All police forces should establish the role of dedicated disclosure champion and ensure that the role holder is of sufficient seniority to ensure they are able to work closely with the CPS Area Disclosure Champions using the existing meetings structure to ensure that disclosure failures are closely monitored and good practice promulgated on a regular basis.
• The CPS should provide a system of information sharing between the Areas and Headquarters that enables the effective analysis of Area performance on disclosure.
• The CPS and police should develop effective communication processes that enable officers in charge of investigations and the allocated prosecutor to resolve unused material disclosure issues in a timely and effective manner.

Within 12 months:

• The College of Policing should produce guidance on training that is of sufficient depth to enable police forces to provide effective training on the disclosure of unused material to all staff involved in the investigation process. The guidance, which may best be served by the use of classroom based or a similar form of interactive training, should concentrate on ensuring that staff fully understand their responsibilities in relation to the revelation of both sensitive and non-sensitive material and how to schedule material correctly.
• The police and the CPS should review their respective digital case management systems to ensure all digital unused material provided by the police to the CPS is stored within one central location on the CPS system and one disclosure recording document is available to prosecutors in the same location.

The Mouncher Investigation Report by Richard Horwell QC

In 1988, a woman was murdered in Cardiff. Five men, later referred to as the “Cardiff Five”, were convicted of her murder. Their convictions were quashed in 1992 as some evidence was obtained by oppression. Later, in 2003, DNA evidence revealed the murderer to be an individual entirely unconnected with the Cardiff Five. He subsequently pleaded guilty.

An investigation commenced into how and why civilian witnesses had lied and, in particular, into the police officers who had taken their witness statements. In 2009, 13 police officers and two civilians were charged with offences of conspiracy to pervert the course of justice and perjury. The case against the police officers was that they had “moulded, manipulated, influenced and fabricated” the evidence against the five innocent men.

There were to be two trials, the first of which commenced in July 2011 at Swansea Crown Court against eight of the police officers and the two civilians. The trial was beset by disclosure problems and on 1 December 2011 the prosecution offered no further evidence and the police officers in that and the following case were acquitted.

This investigation by Richard Horwell QC commenced in March 2015, was directed at discovering what had caused the trial to collapse and at investigating many related issues, principally involving the conduct of police officers and prosecution lawyers in the disclosure process.

The report is 327 pages long and makes a number of specific comments about the case handling, in general that:

• Bad faith played no part in the errors of either the police officers or the prosecution lawyers. It was human failings that brought about the collapse of the trial.
• The evidence reveals a rather chaotic trail of poor management by police officers and the prosecution lawyers, particularly the CPS.

The report makes the following observations on the disclosure process:

• The CPS Disclosure Manual is too long, running to more than 100 pages and comprising 37 chapters and 11 annexes.
• The Lord Justice Gross: Review of Disclosure in Criminal Proceedings of September 2011 stated the CPS Disclosure Manual “would greatly benefit from substantial shortening”. It was frustrating that this recommendation had been ignored.
• The use of the word “strict” is inappropriate as a description of or a qualification to the disclosure test.
• Disclosure counsel has to make an assessment of unused material and if it is thought that it “might reasonably be considered capable” of undermining the prosecution or assisting the defence, then it “must” be disclosed. Disclosure counsel does not have to be “sure” that material is disclosable, the test requires a lower standard, and descriptions of arguments over disclosure and concern that decisions to disclose would constantly have to be justified, are anathema to disclosure where one simple principle should dominate namely, “if in doubt, disclose”.
• Disclosure is not performed in timeless academia; it is performed often in police stations under significant pressures of time and weight of work. If the principles of openness and generosity are employed, disclosure errors should be rare.
• There must be a significant change in attitude, emphasis and approach from prosecuting authorities to build the confidence necessary for the criminal justice system to work efficiently. Our system may be adversarial but disclosure must not be.
• The failures in Mouncher should not be met by a change in the law but by a change in the approach and commitment of prosecuting authorities to the discharge of their disclosure obligations in complex cases.
• In the triumvirate of prosecution, defence and judge, however, there can be no doubt that the principal responsibility lies with the prosecution; only if it is discharging its obligations comprehensively and properly can the defence and especially the judge be fully engaged.

The way forward:

The two documents have much in common. Both documents call for a change in the approach of the prosecution: the HMCPSI and HMIC joint inspection calls for a “change in attitude to ensure that disclosure is recognised as a crucial part of the criminal justice process and that it must be carried out to the appropriate standards”. The Mouncher Investigation Report, states “the failures in Mouncher should not be met by a change in the law but by a change in the approach and commitment of prosecuting authorities to the discharge of their disclosure obligations in complex cases”.

Many criminal practitioners will feel a strong sense of frustration that this issue has not been dealt with before. A review of disclosure in criminal proceedings, by the Rt Hon Lord Justice Gross, was published in September 2011. The report stated that:

“Improvements in disclosure must – and can only – be prosecution led or driven. To achieve such improvements, it is essential that the prosecution takes a grip on the case and its disclosure requirements from the very outset of the investigation”.

There is clearly a need to make considerable improvements in the process. The joint report recognises that the consequences of matters failing to improve include more cases referred to the Criminal Cases Review Commission and subsequently appeal, the potential for miscarriage of justice and a waste of court time, particularly as matters are dealt with at the last minute.

However, the report does not consider the key aspect of funding in ensuring the disclosure process runs efficiently. Both the police and the CPS have experienced funding cuts over the past few years, with no commensurate fall in their workload. The recommendations proposed are all very welcome, but as the report states:

“Inspectors were informed during interviews with both police and CPS staff that they believed the main causes for poor disclosure practices were down to limited resources and lack of time. Given some of the files examined pre-dated the BCM (better case management) process, it is clear that these issues are long standing and predate recent budget restrictions”.

This significant and crucial deficiency in the justice system cannot be resolved without the issue of resources being addressed.

In addition to adequate resourcing, the following should be considered:

• Disclosure must be treated as an integral part of the prosecution process, as significant as conducting a lawful arrest, search or obtaining a witness statement, and not as a tedious process to go through at the conclusion of the investigation.
• Disclosure is easiest if the process is integrated into the investigation, rather than undertaken at the conclusion (although not without its historic problems, the SFO seems to suffer less disclosure problems despite handling some of the most material-heavy cases). The starting point is ensuring every item is entered onto a schedule at the time it is obtained, which is then subject to regular review.
• In order to improve the understanding of “assists the defence” and “undermines the prosecution”, both the CPS and police forces should consider using defence practitioners for training purposes and to audit their own processes.
• Although the return to a “keys to the warehouse” approach would be unhelpful, those conducting the process must operate a non-adversarial policy and if in doubt disclose, rather than entering into sometimes lengthy and repeated arguments as to whether such material meets the CPIA criteria.

Both the joint report and the Mouncher report should be the incentive for all parties to finally resolve the long-standing disclosure failures. It is in the interest of all parties, especially the prosecution, to create a sea change in this simple yet highly problematical part of the criminal justice system.