Criminal Prosecutions and the Prosecution Disclosure of Evidence
Why disclosure of evidence in the news?
There has never been a time when the disclosure of evidence in criminal trials has so much adverse media attention. The arrest, prosecution and in some cases conviction of men and women who had been falsely accused but later exonerated has put the disclosure of evidence very much in the spotlight. Whether or not the obvious failings in the disclosure process in these tragic cases, and no doubt countless other undetected cases, can be considered deliberate, inadvertent or down to simple incompetence or inexperience is not the important issue; what is important is that there is a major and urgent review of the disclosure process to ensure that cases of this type simply do not happen.
What is Disclosure?
The prosecution, usually being the Crown Prosecution Service (CPS), in any criminal case where a case is listed for trial must disclose ALL the evidence upon which it seeks to rely. That is called initial, or primary, disclosure. This will include witness statements, CCTV, forensic evidence and everything which the prosecution feels demonstrates guilt. Initial primary disclosure will also include the disclosure of all exhibits which are to be relied upon as well.
During any criminal investigation, the police are under a duty to properly investigate the case. They are under a statutory duty to pursue all appropriate lines of enquiry in an investigation, meaning that they should pursue investigative lines of enquiry which can support guilt, as well as investigating matters which are capable of supporting innocence. This is a common failure in police investigations, and it is not uncommon for the police simply to focus on proving a suspect’s guilt rather than considering or investigating the prospect that a suspect might in fact be innocent, which may often relate to matters the suspect has raised in interview. With this in mind, it is hardly surprising that the police face enormous difficulties when it comes to issues of disclosure.
Prior to the trial, the CPS are under a duty to serve a schedule of unused material. This document should detail all the material which the police have gathered and the prosecution have reviewed and upon which no reliance is placed. This is known as ‘unused material’, and only material listed in that document which passes the ‘disclosure test’ will be disclosed.
What is the disclosure test?
Material on the unused schedule will be disclosed if it is considered as being either reasonably capable of undermining the case for the prosecution against the defendant, or capable of assisting the defence if disclosed.
It is the prosecution who apply the disclosure test and not the police, and the prosecution can only apply the test to the material the police have gathered during the investigation and passed on to the prosecution. Although the prosecution can and occasionally do instruct the police to carry out further enquiries, it is not uncommon for the prosecution to rely on the integrity and efficiency of the police to have carried out the investigation effectively and impartially by doing everything possible to investigate every all reasonable lines of enquiry.
In some cases, there can be a schedule containing sensitive material which the defence do not get the opportunity to see. It contains sensitive material not to be disclosed because it is considered that to do so would create a real risk of serious prejudice to an important public interest. If material referred to in the schedule on the face of it falls within the disclosure test – undermines the prosecution case or assists the defence – the prosecution can make an application to the court to prevent its disclosure. This is known as a public Interest Immunity application. Such applications are heard by a judge in chambers and not in open court, and can be challenged by the defence.
The on-going duty of disclosure and the defence case statement
The duty of the prosecution to disclose material which undermines its case or is capable of assisting the defence is an ongoing one, meaning that if at any stage during the trial process the prosecution recognise that it possesses material which meets the disclosure test, then it should be disclosed.
What can assist with disclosure is a document called the defence case statement. This document is compulsory in trials in the Crown Court, and discretionary during trials in the Magistrate’s Court. It is a document which alerts the prosecution as to what the accused’s defence is, how the accused takes issue with the prosecution case and why. The document commonly sets out a number of disclosure requests and invites the prosecution to carry out enquiries so that material can be disclosed.
Once that document is received, the prosecution will review the material set out in the schedule of unused material and see if any material meets the disclosure test.
If the prosecution then fail to disclose material requested by the defence, the defence can make an application to the court to ask a Judge to review and decide upon the validity of the request.
The need for a review of the disclosure process
In March of this year (2018) an inquiry into the disclosure procedures for criminal prosecutions was commenced by the Justice Select Committee. On day one, the Chief Inspector of the Crown Prosecution Service acknowledged that when it comes to miscarriages of justice, concerns over disclosure and failings in the disclosure process were the single most concern.
Away from the Select Committee, it comes of no surprise to the profession itself that injustices regularly occur. Funding cuts to the police and prosecution, access to legal aid continually reduced, and a police force driven by the desire to convict rather than achieve the right result have all contributed to a system in utter chaos, as the recent media attention of certain cases have demonstrated. Moreover, a frequent police mindset that the complainant in an allegation ‘must be telling the truth’ prevents fair and impartial investigations. There is a real perception nowadays that the burden of proof in criminal proceedings is on the defence and that a series of Acts of Parliament have made it all too easy to secure a conviction.
The way in which the disclosure process works is directly linked to how the police and investigators understand how the trial process works. The police need to be re-educated, and reminded of their duties as investigators to investigate cases fairly and impartially.