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“It was with wry amusement that I read of the new-found concern for the criminal justice system from the right-wing press.”

A non-lawyer friend once enquired of me as to whether I had proclaimed the end of the criminal justice system for the fourth or fifth time that year – the point being that I cried wolf too often. Despite the difficulties multiplying over the past few years, I have heeded the lesson. The nature of this job means you need a fighting spirit. We have to fight for our clients, for our profession and for the wider public interest. Lament is not an option. It was with wry amusement, therefore, that I read of the new-found concern for the criminal justice system from the right-wing press (and former Labour ministers) as a number of rape trials collapsed after disclosure issues.

The failure to disclose appropriate evidence has been blamed on savage cuts that the CPS has suffered in recent years. Don’t get me wrong, austerity has killed the criminal justice system in the same way as many public services. However, funding is not the only issue. Disclosure has long been a concern and was flagged in the July 2017 HM Crown Prosecution Service Inspectorate/HM Inspectorate of Constabulary report, Making it fair: a joint inspection of the disclosure of unused material in volume Crown Court cases.

The common factor in many of the recent cases was the failure to properly investigate digital evidence in the context of rape cases. Indeed, the CPS has been reviewing how disclosure has been handled in all current sex cases. However, it is far from clear why this review should only take place for sex cases; many others, including fraud or conspiracy, will face similar factors of digital evidence not being properly interrogated by the state when previous contact between different parties is key. Why not review these cases as well?

Beyond funding, there are issues about training and culture. I know of one case where the investigating officer received the defence statement from the defendant’s lawyers, which, as required, summarised the defence case and the issues in dispute. The statement should trigger a further review by the police/CPS about whether they should disclose any further material (indeed, the police are under a duty to consider the information and whether there are reasonable lines of investigation that assist the defence). Instead, the officer emailed the complainant to say that he would ‘address whatever they are contesting and provide evidence against each point’! In other words, the sole purpose for the officer was to get advance notice of the defence case and work out how he could undermine it – rather than conducting an independent and impartial investigation. This is not just about training officers on their duties under the Criminal Procedure and Investigations Act 1996 (CPIA) – it is about the culture that exists within the police and CPS. This cultural problem has at last been acknowledged (Matthew Weaver and Jamie Grierson, ‘Police chief admits “cultural problem” with evidence disclosure’, Guardian, 24 January 2018).

Too often, seek evidence to back up their initial theory on the case. They do not have an open mind as to where evidence may lead them and the investigation seems far from fair and impartial. In my view, there is an increased antagonism between prosecution and defence. Whether that is due to a target-driven approach in the CPS, work pressures or other factors, I do not know; it just feels more adversarial than it did 10 years ago.

The framework of the CPIA may need to be reviewed. It was conceived in an era when the nature of digital evidence was very different. However, technology could also assist in providing a solution. Electronic files should mean that the burden and cost of allowing the defence access to the unused material will not be a factor in the same way. Why not allow the defence access to all of it?

That brings us full circle to the defence. Any disclosure regime, with its consequences for a fair trial, can only work if there are committed, tenacious and persistent defence lawyers who can hold the investigators to account. That of course requires proper funding, but also means retaining our desire to keep fighting. Many of us are up for that!

This article was first published on Legal Action Group, February 2018