Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘disclosure of evidence

Disclosure of Evidence: Justice Committee report

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It is a fundamental principle of the criminal justice system in England and Wales that the prosecution must disclose unused evidence to the defence. Following considerable press publicity given to criminal trials  in which this principle has not been observed – leading to lengthy delays in a case being brough to trial, in some cases leading to a defendant being sent to prison for a crime he did not commit – the Justice Committee in the House of Commons took a look at the issue.

In July 2018 they published their report. In it they make no recommendations to change the law. Indeed, the confirm that the principle of disclosure is an important one to ensure a fair trial. What they do say is that those working in the criminal justice system must take their responsibilities in relation to disclosure more seriously.

The Committee notes that in early December 2017 the Government announced that the then Attorney General would conduct a review of disclosure. While the Attorney General has since changed, the Committee expects that this review will conclude.

The Committee also notes that the Crown Prosecution Service, National Police Chiefs’ Council and College of Policing  published a “National Disclosure Improvement Plan” in January 2018. (Noted in this blog 1 Feb 2018)

The Justice Committee’s recent report in effect builds on these initiatives. It states, in summary that there needs to be:

  • a shift in culture towards viewing disclosure as a core justice duty, and not an administrative add-on;
  • the right skills and technology to review large volumes of material that are now routinely collected by the police; and
  • clear guidelines on handling sensitive material.

Finally, the Government must consider whether funding across the system is sufficient to ensure a good disclosure regime. The Committee notes that delayed and collapsed trails that result from disclosure errors only serve to put further strain on already tight resources.

The Committee plans to return to this issue both when the Government publishes its response to the report, and when the Attorney General’s review is completed.

The report can be seen at https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/859/85902.htm

 

 

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Written by lwtmp

October 2, 2018 at 10:48 am

Disclosure of evidence: planning for change – first steps

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In July 2017, the Inspectorates of the Crown Prosecution Service and Constabulary published a very critical report on the failure of police and prosecution services to apply the rules relating to the disclosure of evidence held by police/prosecutors to defence teams. (I noted the report here in November 2017).

Since then, it seems that the issue of the failure of the police and prosecution to disclose evidence to defence lawyers which might undermine or weaken the prosecution case has received almost daily attention in the mass media. A number of well publicised cases have emerged in which those accused of serious crimes (in particular rape) have found out only at a late stage that evidence which undermines the case against them is available.

A number of reasons have been advanced for these failures. For example, it is argued that the current law was put in place before the arrival of mobile phones and the vast amounts of electronic data that is generated on phones and tablet.

It is also argued that police and prosecutors lack the resources to comb through all this information to see what might by relevant.

This is an extremely serious issue which goes to the heart of the criminal justice system. People must feel that the system is fair and that those who run it are complying with the rules.

Clearly both the police and CPS are taking this issue seriously. The first tangible step has recently been taken. At the end of January 2018, a plan was published  by the Crown Prosecution Service (CPS), the National Police Chiefs’ Council (NPCC) and the College of Policing.  This sets out measures designed to improve practice in this area.

These first steps include:

  • Reviewing disclosure training with the College of Policing
  • Developing a cadre of specialist and experienced disclosure experts in every force
  • Providing all multimedia evidence from the CPS to the defence digitally
  • Putting in place specific improvement plans for each force and CPS area
  • Setting up a system for the CPS and police to better identify and deal with cases with significant and complex disclosure issues.

This will not be the last word on this subject. Much work has to be done to ensure that all those engaged in the criminal justice system actually act in accordance with the statutory rules on disclosure. But it is an important first step.

The text of the plan can be found at http://www.npcc.police.uk/Publication/National%20Disclosure%20Improvement%20Plan%20January%202018.pdf

Written by lwtmp

February 1, 2018 at 11:12 am

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

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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/

Written by lwtmp

November 6, 2017 at 3:00 pm

Disclosure of unused evidence in a criminal trial

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Part 2 of the Criminal Procedure and Investigations Act 1996 makes provision for the publication of a Code of Practice which sets out how police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation. A previous version of the code was published in 2005.

In May 2014 the Magistrates’ Court Disclosure Review recommended a streamlined procedure in summary cases that are expected to end in a guilty plea, so that a schedule of unused material need not be served in such cases. To this end it recommended amendments to the code, some of which are incorporated in the revised code.

The revised code was laid in Parliament on 28 January 2015. The Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2015 will bring it into force the day after the Order has been approved by affirmative resolution of both Houses of Parliament.

The Code, in its present unappoved form is available at https://www.gov.uk/government/publications/criminal-procedure-and-investigations-act-code-of-practice

Written by lwtmp

March 3, 2015 at 4:39 pm