Adrian Farrow comments on disclosure problems in criminal cases

February 2, 2018

The current furore about failures in the disclosure process in criminal cases should not be a surprise. The statutory regime under the Criminal Procedure and Investigations Act 1994 (“CPIA”) was a response to what had been perceived to be large-scale problems. In opening the second reading debate on the Bill in the House of Lords in February 1996[1], the then Home Secretary, Michael Howard said:

“The current law has given rise to serious problems. The accused can request the disclosure of reams of material, whether or not it has any relevance to the defence that he proposes to advance at trial. That places heavy burdens on the police in particular.”

The CPIA placed the primary obligation of recording, retaining and assessing unused material on the police. So far so good – the police gather information during any investigation and sift out what is to be used to bring forward a criminal charge.

However, the Disclosure Code places a parallel duty on the police to ‘follow all reasonable lines of enquiry whether they point towards or away from a suspect’.

The intention was that the police disclosure officer should exercise an assessment independent from the officers investigating the crime, but in practice, the disclosure officer will often be an integral part of the investigation team, more often than not the investigating officer him or herself.

So it is that the person whose job it is to investigate the crime, to have the rights and interests of the victim of the crime in mind and to put a file of evidence before the Crown Prosecution Service (“CPS”) to justify charging the person they believe to be the offender, is the very same person who has the duty to investigate and to provide to the offender material which either undermines the case the officer is putting forward or which might assist the offender in his defence (‘the disclosure test’).

It is not difficult to see how those parallel duties of building a case and disclosing unused material create a conflict. That conflict is well illustrated by the remarks of the chairman of the Police Federation in 1996, quoted by Michael Howard:

“This is a black day for the Lawyers’ Angling Society. This Bill should end the farce of the gigantic fishing expedition which has become a notorious tactic amounting, in plain English, to blatant attempts to obstruct and delay justice.”

The CPS has a duty to review and assess the unused material which the police identify to them and to disclose to the defence any item which fulfils either part of the disclosure test. But the prosecutor can only undertake that process on the basis of what is disclosed by the police.

That assessment is made on the basis of a schedule of unused material which is intended to describe in sufficient detail  the material gathered during the investigation but not used in evidence so that the prosecutor can assess the significance of it – first at an early stage, based on what is known of the defence case from interview, but as a continuing process through the trial process, as the defence is set out more explicitly through the Defence Statement.

The requirement of a defendant to set out his defence in general terms in a Defence Statement was a counterpart of the disclosure regime brought in by the CPIA.

Of course, prosecutors can and do go beyond the schedule of unused material and look at some or all of the material themselves, but in an age of increasingly stretched resources, the perception is that a greater and greater reliance is placed by the CPS on what is identified by the police as being potentially disclosable material.

So why are the problems now appearing? There has a great deal of publicity attached to a number of rape cases, which have given rise to public apologies from senior police officers and the DPP herself. The volume of material which has to be considered was one factor identified in one of the recent cases.  Ironically, against that background, the president of the Association of Chief Police Officers commented on the CPI Bill in 1996:

“The proposals should help to reduce problems arising out of the bulk of material the prosecution currently has to disclose. It will introduce a more systematic and therefore more accountable system.”

Certainly, the advance of the digital age has given rise to massive volumes of material on computers, tablets and smart phones, all of which require review and analysis and present significant practical challenges to the police and CPS. But criminal practitioners know that fundamental problems begin with the ultimate reliance on the person who is responsible for gathering together and reviewing the mass of material from any criminal investigation – not just rapes, which make for attention-grabbing headlines, but in every case.

Until there is a method of ensuring that there is true and open-minded approach to the gathering and review of unused material at the investigation stage, the CPS will remain in the position in which they unable to say that they can be confident that they have properly disclosed everything that either undermines the case presented to them by the police or which might assist the defence case.

The Joint National Disclosure Improvement Plan, published in January 2018 by the CPS, the National Police Chief’s Council and the College of Policing seeks to provide a pathway of training and improvement of the current process. But how long will it be before we see another series of miscarriages of justice with convictions overturned because of failures discovered in operation of the present disclosure process? Isn’t it time for a fundamental re-think of the whole regime?




Adrian Farrow is a member of the criminal department at Exchange Chambers.