Making it fair: Disclosure of unused material in volume Crown Court cases

A joint inspection by HMCPSI and Her Majesty’s Inspectorate of Constabulary (HMIC) found widespread failures across the criminal justice system when it comes to disclosure of evidence.

Disclosure of unused material is a key component of the investigative and prosecution process. When conducting investigations, the police have to retain every unused item which is considered relevant to an investigation. Each item is then reviewed to see whether it is capable of undermining the prosecution case or assisting the defence case. If either factor applies it must be disclosed to the defence.

If this process is not done correctly and in a timely fashion, it may result in cases being discontinued or the trial process being delayed through unnecessary adjournments thereby incurring extra cost for the justice system and causing additional emotional distress to victims, witnesses and defendants. Ultimately, the failure to properly disclose material can lead to miscarriages of justice and the Criminal Cases Review Commission tell us that disclosure failures are the basis for a significant number of cases they consider.

Inspectors found extensive issues in the way unused non-sensitive disclosure material is recorded by the police, with 22% of schedules found to be wholly inadequate. Often officers were just compiling lists, rather than explaining their contents to assist the prosecutor. Prosecutors, in turn, were not requesting a description of the items, preventing them from making any meaningful review. The lack of proper case supervision by the police was a significant cause for concern and 78% of the files examined were marked either poor or fair.

HM Chief Inspector Kevin McGinty said: “A failure to deal effectively with disclosure has a corrosive effect on the criminal justice system. It undermines the principles of a fair trial which is the foundation of our system. It adds delay, cost and increases the stress faced by witnesses, victims and defendants.

“The findings of this inspection will surprise no-one who works within the criminal justice system as there appears to be a culture of defeated acceptance that issues of disclosure will often only be dealt with at the last moment, if at all. If the police and CPS are ever going to comply fully with what the law requires of them by way of disclosure, then there needs to be a determined cultural change. This is too important to be allowed to continue to fail.”

HM Inspector of Constabulary Wendy Williams said:

“The importance of the police and the CPS working together to maintain the integrity of the criminal justice system cannot be overstated. The aim of the police across all its areas of responsibility is to provide, to the best of its ability, the best possible outcome in the interests of justice and for the victims of crime – this extends to how it maintains and provides information for prosecutions.

“We found in this inspection that the police recording of both sensitive and non-sensitive material was lacking, which creates uncertainty and confusion for prosecutors. In turn, this poor practice was not being challenged by the CPS. This has resulted in a lack of confidence in the disclosure process on the part of the judiciary. We urge the police service to address these shortcomings in accordance with guidance and the Code of Practice. We have made recommendations to the police service and governing bodies to help improve these areas.”

The inspection found a number of additional issues including poor IT, poor communication between both agencies and inadequate training. A culture of acceptance appeared to prevail, where the inability to manage disclosure effectively was seen as too difficult to address.

Making it Fair: Disclosure of Unused Material in Volume Crown Court Cases