Martin Partington: Spotlight on the Justice System

In July 2017,  HM Crown Prosecution Service Inspectorate and HM Inspectorate for Constabulary published a joint report on the disclosure of unused evidence. Based on the analysis of a number of sets of court papers, the report reveals very poor compliance with the relevant rules.

The report states: “Disclosure is one of the cornerstones of the criminal justice system and disclosure of unused material is a key component of the investigative and prosecution process. …Every unused item that is retained by police and considered relevant to an investigation should be 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.’

This inspection by HMCPSI and HMIC identified a number of issues which are contributing to widespread failures across the board by both police and prosecutors.

• Police scheduling (the process of recording details of sensitive and non-sensitive material) is poor and this, in turn, is not being challenged by prosecutors.
• Police are routinely failing to comply with guidance and requirements when completing and recording data, such as the non-sensitive disclosure schedule (known as MG6C).
• The College of Policing is supposed to provide training on disclosure. [But] Many officers admitted they lacked confidence in their role and responsibilities as disclosure officer.
• Prosecutors are expected to reject substandard schedules and there was little evidence of such challenge occurring, with a culture of acceptance prevailing.
• There was also poor decision-making by prosecutors on the Criminal Procedure and Investigations Act (CPIA) test for disclosure. In 54% of cases prosecutors simply endorsed schedules without recording their reasoning.
• There were further failings in maintaining a complete audit trail of actions and decisions setting out the prosecution disclosure process.
• There was poor supervision of standards, although where police forces have introduced quality control mechanisms this was found to improve the quality of data.
• The exchange of information and documents between the police and CPS is often hindered rather than helped by technology, with a number of police systems presenting problems.

The report set out a strict timetable for change.

Immediately:

all disclosure issues relating to unused material to be identified at the charging stage.

Within six months:

the CPS to comply with the Attorney General’s Guidelines on Disclosure, with an allocated prosecutor reviewing every defence statement and giving prompt guidance to police;

police forces to improve supervision of unused material;

CPS Compliance and Assurance Team to begin dip sampling;

all police forces to establish role of dedicated disclosure champion of senior rank;

a system of sharing information between CPS Areas and Headquarters to monitor performance;

CPS and police to develop effective communications processes.

Within 12 months:

the College of Policing to introduce a disclosure training package;

the CPS and police to review digital case management systems.

The full report is available at http://www.justiceinspectorates.gov.uk/cjji/inspections/making-it-fair-the-disclosure-of-unused-material-in-volume-crown-court-cases/