In November 2018, the Attorney General published the results of his review into the practice and procedures of police and prosecutors relating to the disclosure of evidence held by prosecutors to the defence, where such evidence might undermine or weaken the prosecution’s case.
The importance of ensuring that such disclosure takes place is accepted by all those responsible for criminal justice policy to be at the heard of a fair judicial process.
The Attorney-General’s review found, in common with earlier official reports, that the duty to record, retain and review material collected during the course of the investigation was not routinely complied with by police and prosecutors.
The Review makes clear that disclosure obligations begin at the start of an investigation. Investigators have a duty to conduct a thorough investigation, manage all material appropriately and follow all reasonable lines of inquiry, whether they point towards or away from any suspect. The Review found that this was not happening routinely in all cases. At the least this caused costly delays for the justice system and at worst it meant that cases were being pursued which the evidence did not support. The impact of these failings caused untold damage to those making allegations and those accused of them.
The Review concluded that “to enable lasting change, there must be a ‘zero tolerance’ culture for disclosure failings across the police and the Crown Prosecution Service (CPS)”.
Of course, this is easier said than done. Hard pressed police and prosecutors may well be tempted to take short cuts. In order to counter these temptations, the Government has taken a number of steps.
1. It has welcomed the steps already taken by the police and CPS to address the issues through the National Disclosure Improvement Plan and will work with each to ensure they lead to long-term, effective and sustained change. HM Government intend, through the Attorney General and Home Secretary, to hold police and prosecution leaders personally responsible for this.
2. As the Review found that non-disclosure is a system-wide problem which needs a systematic response, the Criminal Justice Board, which the Attorney General sits on, will take responsibility for strategic oversight of the collective response from all parts of the system – from police, to prosecutors to the judiciary.
3. The Review found that police and other investigators could be better supported by technological advancements when reviewing and capturing digital evidence. To address this, the Government plans to convene a ‘Tech Summit’ in spring 2019 to help all 43 police forces in England and Wales handle the increasing volumes and complexity of this type of evidence. This will build on the work of the police and help to engineer a way forward with the help of private tech companies. Through the Police Transformation Fund, the Government is already investing in national work to support policing in its wider digital transformation.
4. While the underpinning legislation thought to be still fit for purpose, the Government has concluded that the guidelines which support it need to be updated to meet the challenges of the rise of modern technology. This will happen through secondary legislation.
5. Finally, the work already started by the CPS to improve its data collection to capture the extent of the disclosure problems is essential. The Government will oversee the CPS’s delivery of a new data collection regime which is fit for purpose.
Whether or not all these initiatives will have the desired effect remains to be seen. But there is no doubt that at present practice and procedure on the ground has the potential to undermine the integrity of the criminal trial process.
Adapted from https://www.gov.uk/government/news/creating-a-zero-tolerance-culture-for-disclosure-failings-across-the-criminal-justice-system.
The full text of the review is at https://www.gov.uk/government/publications/review-of-the-efficiency-and-effectiveness-of-disclosure-in-the-criminal-justice-system.
The Justice Select Committee’s report on this issue, published in July 2018, is at https://publications.parliament.uk/pa/cm201719/cmselect/cmjust/859/85902.htm
Martin Partington: Introduction to the English Legal System 15th ed 2021
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Martin Partington: Spotlight on the Justice System 