Disclosure is an essential feature of the criminal justice process. If not done correctly, it can cause issues for both prosecutors and accused and can jeopardise the successful prosecution of a case.
HM Inspectorate of Constabulary recently released a Report which considered issues with the disclosure process in UK criminal proceedings. While the Report applies to proceedings in the UK, in light of similar rules on disclosure between the UK and Ireland (aside from the additional constitutional protections in Ireland), the issues raised in the Report may equally apply in this jurisdiction.
THE IMPORTANCE OF DISCLOSURE
The Report, which was commissioned following a number of critical Court of Appeal rulings surrounding the issue of disclosure in criminal cases, highlights the importance of getting disclosure right and specifically refers to the high financial cost as well as the emotional cost to victims, witnesses and defendants of inadequate disclosure and the impact a failure to disclose material can have on the case itself.
The report noted that in 2015/2016 the single most frequent cause of miscarriages of justice in the UK was the failure to disclose evidence which could have assisted the accused.
In each criminal investigation the police are required to record, retain and make known to the prosecutor all material obtained during the investigation which may be of relevance to the prosecution. Every unused item or piece of material obtained during the investigation which is retained by the police and considered relevant should be reviewed to assess whether it is capable of undermining the prosecution or assisting the defence. If either factor applies, it must be disclosed to the defence.
The Report found that this practice is not adhered to in the vast majority of cases. The effect of this is such that the prosecution is at risk of challenge in respect of inadequate disclosure. The failure to deal with disclosure issues early may also lead to last minute disclosure between counsel. This, in turn, can lead to unnecessary adjournments and discontinued cases which, if disclosure had been dealt with properly earlier, could have been avoided.
The Report makes a number of remedial procedural recommendations that should be implemented within six to twelve months, which include:
» That the police and the Crown Prosecution Service (“CPS”) identify all disclosure issues relating to unused material at the charging stage;
» The CPS should comply with the Attorney General’s Guidelines on Disclosure and ensure that every defence statement is reviewed by the allocated prosecutor before sending to the police and that prompt guidance is given to the police on what further actions should be taken;
» The College of Policing should produce guidance to enable police forces to provide effective training on the disclosure of unused material to all staff involved in the investigation process;
» Police forces should improve their supervision of case files;
» All police forces should establish the role of dedicated disclosure champion and make sure that the role holder is of sufficient seniority to ensure he/she is able to work closely with the CPS; » The police and the CPS should review their respective digital case management systems.
» The police and CPS should develop effective communication processes to resolve unused material disclosure issues in a timely and effective manner.
As is evident from the above, the Report highlights the requirements on law enforcement authorities to fulfil their obligations in respect of disclosure material. These principles could be said to apply equally to all criminal proceedings and investigations, including those initiated by regulators.
In Ireland, there is an obligation to disclose material not intended to be used by the prosecution at trial (or by an investigator) if such material may undermine an aspect of the case or investigation or assist the defence in some other way. This material is known as “relevant unused material”. The DPP’s Guidelines for Prosecutors states that where it is feasible to do so, the defence should be provided with copies of relevant unused material. Where this is not feasible, the defence should be provided with an opportunity to inspect the evidence. Either way, it appears clear that appropriate access ought to be provided.
It is important also to remember that prosecutors and regulators also have obligations to victims pursuant to the European Union Directive 2012/29/EU which includes an inherent obligation to ensure that prosecutions are conducted appropriately.
In light of the similar rules on disclosure in this jurisdiction, prosecutors, regulators and investigators ought to place renewed emphasis on proper procedures such as those being adopted in the UK. For those facing prosecution or investigation, it will be increasingly important to ensure that thorough enquiries are made in respect of the disclosure process such that any errors or omissions on the part of the prosecutor, regulator or investigator can be explored.
The consequences of a failure to make proper disclosure have been evidenced in recent times in proceedings such as the case of DPP v Fitzpatrick and the Tribunal of Inquiry into Certain Planning Matters and Payments (“The Mahon Tribunal”) and it is likely that identification of failures to disclose evidence in the context of proceedings or an investigation will face further scrutiny going forward. Prosecutors, regulators and investigators should ensure they have proper procedures in place to deal with such emerging issues.