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Disclosure – take nothing at face value

Posted on 24th June 2016

It is widely acknowledged that “disclosure” is one of the most important and fundamental issues in the criminal justice system.

The Crown Prosecution Service agree that the application of proper and fair disclosure is a vital component which should ensure fairness in the criminal justice system.

In fact, their own website hosts an entire page dedicated to the issue of disclosure.

This blog therefore refers to many quotes from their very own website, in addition to a very recent case of mine.

The “golden rule”; – the CPS say that fairness requires full disclosure, which should be made of all material held by the prosecution that weakens its case or strengthens that of the defence.

Putting aside the notion of the “golden rule”, which they say ensures fairness, I recently experienced something which has made me seriously consider such soundbites and catchphrases with suspicion.

The golden rule is not merely a principle. It is a statutory obligation. Indeed, they know this, and the website refers to the statute which governs disclosure. My unease however is the way in which some cases are reviewed (or in some cases not). I have over the years formed an impression that in some cases the CPS seem to neglect their duties and responsibilities.

In extreme situations, such neglect could expose risk to potential miscarriages of justices taking place.

History (home and abroad) demonstrates examples where miscarriages are malicious. In other cases negligent. In some cases they just happen. Regardless of intention or recklessness for the reasons which cause potential injustices, it is important that the foundations, principles and statutory obligations encompassing disclosure remain solid.

That might sound good, but is that enough?

Foundations may remain solid, but the constructions above the foundations need to be constructed in a competent manner.

In this way, I draw a physical parallel between the Crown Prosecution Service (the reviewing lawyers) as the bricks and mortar of the construction. Supposedly they’ve been metaphorically designed by an architect to be fit for purpose. This is where my recent experience caused me some alarm.

Multi-handed trafficking trial

I recently represented several defendants within a multi-handed human trafficking trial at a major court in London.

The investigation was protracted. These defendants were being investigated for many years. Criminal proceedings lasted for six months.

After six months of ongoing criminal proceedings, we, the defence (and those who represented our co-defendants) complied with our disclosure obligations. A defendant who faces trial in the crown court must serve a document known as a defence statement. It gives the defence an opportunity to make specific disclosure requests. Once such requests have been made the CPS must review each item, and consider whether they must hand it over to the defence. In essence, as a general rule, they must do so if the item/evidence helps the defence case, or if it undermines the Crown’s. Nothing of significance was disclosed, and we were ready for trial.

The trial began.

The first witness, a police officer, gave his evidence in front of the jury.

Whilst giving evidence, he was permitted to use his witness statement to help him refresh his memory.

Shocking revelations then unfolded.

His evidence revealed that:

(1) The police officer based his witness statement on an intelligence document. He had therefore included “evidence” from an intelligence document as if it were his own evidence, despite the fact that he had not seen, or participated in witnessing the purported evidence.

(2) His statement which he apparently tried to refresh his memory from was different to the statement which the prosecution served on the defence. Yes, you read it correctly – there was more than one version!

(3) In fact, when compared, the suspects’ names had been altered. They were altered in order to reflect the names of the defendants who stood trial.

It got worse.

Upon further investigation (pushed for by the defence) it became apparent that this “witness” had sent his original statement to the police officer in charge of the case, who did not believe that it was sufficient for the prosecution case and so he amended it, in order to improve his colleagues witness statement.

I am not accusing anyone of any malicious intent. Indeed, upon cross-examination, the officer did not believe that he had done anything wrong. Perhaps it was pure and simple ignorance.

Was this ignorance of his disclosure duties, and therefore perhaps vicarious ignorance by the crown prosecutor? Should the reviewing lawyer have reviewed these specific issues in light of his/her disclosure obligations? The CPS might say that they were unaware of this original and modified statement.

My concern is they do not take an active role in scrutinising the police to make sure that they are aware of what exists. If they don’t know what material exists in its entirety, how can they say they’ve properly reviewed the case?

The investigation had no integrity.

The foundations underpinning the prosecution case were removed from under its own feet, and the proceedings quickly collapsed.

The Crown offered no evidence against my clients.

Safeguards – what are they?

As correctly cited by the CPS we are should be safeguarded by the Criminal Procedure and Investigations Act 1996 (the CPIA 1996), as amended by the Criminal Justice Act 2003 and the revised code of practice issued under it (the Code of Practice). The CPS must serve all material held by the prosecution that weakens its case or strengthens that of the defence.

The CPS are very much aware of their statutory duties but how alive are they in reality? They refer to quotes from John Stuart Mill in order to show the public how serious they take their disclosure duties;

“He who knows only his side of the case knows little of that”.

John Stuart Mill was right. But what does his quote mean if there is no effective human intelligence to ensure that we have the ability to discover what we ought to discover about our case.

Their website continues to share quotes for the benefit of their audience. They refer to Lord Bingham (R v H and C, 2004) “[There is a] need for very great care in handling the whole process of disclosure”.

Lord Bingham’s assertion is indeed the crux, and is perhaps where there might be systematic fatigue within the Crown Prosecution Service.

And so have any lessons been learned? Certainly by the defence. We cannot take what the prosecution say at face value.

Should we ever be, and can we ever be satisfied with their responses to our disclosure requests? Possibly not.

And so it seems to be our duty to ensure that every crown prosecutor takes ownership of their case, and that we constantly review them, as they review themselves.

We must assume that our opponent sitting in his CPS office might be ignorant to issues unknown to him, and so it rests with us, the defence, to ensure that a reviewing lawyer must not take what an investigating officer says at face value.


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