Blog: MPs have failed to get to grips with the disclosure crisis

by James Burley

FIRST PUBLISHED ON THE JUSTICE GAP: http://www.thejusticegap.com/2018/07/mps-have-failed-to-get-to-grips-with-the-disclosure-crisis/

The House of Commons’ Justice Select Committee’s report on disclosure in criminal cases, published today, could have marked a turning point for our criminal justice system. MPs could have recommended bold reforms that would put an end to the routine failures by police and prosecutors to hand over crucial evidence – failures which are resulting in collapsed trials and wrongful convictions.

Instead, once again, the report’s recommendations amount to tinkering with a system that has time and time again proved inadequate. Clearer guidelines, improved skills and a culture shift have all been recommended before – and they haven’t worked.

In refusing to call for fundamental reforms, MPs quoted the views of Lord Justice Gross, who said he was ‘strongly opposed’ to the defence being given greater access to the results of police investigations. His reasoning was this ‘would increase the pressures on limited resources and result in the duplication of effort… The ‘keys to the warehouse’ in an overstretched system is simply not viable. At most, it transfers the problem without solving it.’

Lord Justice Gross is right that if the defence are given greater access to material they will need to be given sufficient resources to properly review it. However, his argument about resources ignores the vast amount of duplication already inherent in our disclosure system.

First, non-legally qualified police officers are tasked with deciding what material undermines the prosecution case or assists the defence, something which in 33% of cases is either not done or carried out in a ‘wholly inadequate‘ way. Then prosecutors do the same, though an inspection last year found ‘evidence of poor-decision making‘ by them as well. Finally, the defence get the chance to assess what material might assist them – except they are forced to rely on lists of material drawn up by police, of which 81% are either wholly or partially inadequate.

This process defies common sense. As Dr Hannah Quirk puts it, the current framework ‘require[s] the police and CPS to consider material from the perspective of a defence lawyer… a task for which they are culturally unsuited and ill-equipped’.

As the Centre for Criminal Appeals and Cardiff Law School Innocence Project suggested in written evidence, it would be simpler to have a new Independent Disclosure Agency strip out all genuinely sensitive material in a case and provide the rest for the defence to review, and relieve the police and CPS of the burden. Some have privacy concerns about this approach, but section 18 of the Criminal Procedure and Investigations Act 1996 makes it an offence to make unauthorised disclosure of such material – and the right to a fair trial must come first.

Perhaps the biggest flaw with the Justice Committee’s report, though, is that it ignores the situation of those who have already been wrongly convicted due to disclosure failings. Currently, they have no reliable means of learning about the existence of material wrongly withheld from them at trial.

As Dr Dennis Eady puts it in issue 2 of Proof magazine, the current law on post-conviction disclosure places the wrongly convicted in a Catch-22 whereby prisoners can only access exculpatory material by specifically requesting it and showing how it affects the safety of their conviction. This is a near impossible task if you don’t know of the material’s existence, let alone what it shows. In theory, the Criminal Cases Review Commission could bring to light undisclosed evidence in cases by using its statutory powers to access and review the complete police and CPS files on cases. However, the CCRC deems this too speculative, despite concrete evidence that disclosure failings are a common occurrence.

The Justice Select Committee's report missed an opportunity to address these issues and advocate for real change – and in so doing relieve overstretched police forces and prosecutors from their fraught role in the disclosure process. Instead, they have failed to get to grips with the disclosure crisis.