Hundreds of cases dropped over evidence disclosure failings[1]; ‘All current rape cases to be ‘urgently’ reviewed over disclosure fears[2]; ‘Police chief admits ‘culture problem’ with evidence disclosure[3]; these are all headlines which have featured in the media recently following the collapse of several high profile rape trials in quick succession. It goes without saying that the disclosure process is one of the fundamental cornerstones in the criminal justice system. Ensuring the availability of all relevant information is key to safe and fair prosecutions and to proper convictions. The current crisis in disclosure is therefore a worrying one striking at the heart of public confidence in our justice system

What is being done to address the problem?

Although the CPS has said it believes ‘the number of unsuccessful outcomes due to disclosure issues last year was just 0.15% of all prosecutions’ it has also admitted it is, ‘clear that there are systemic disclosure issues across the criminal justice system, which will require a collective effort in order to bring about improvement.’[4]

Attorney General Jeremy Wright has highlighted the need for police and prosecutors to get to grips with the way they handle electronic evidence in particular[5]

Chief Constable Nick Ephgrave of Surrey Police, the force responsible for the Oliver Mears rape case and the lead on criminal justice for the National Police Chiefs’ Council (‘NPCC’), has tellingly commented, For too long disclosure has been seen by many officers as something that is subsequent to an investigation, i.e. an administrative process at the end, rather than something that should be integral.’[6]

As well as Alison Saunders announcing the review of evidence in all current rape and serious sexual assault cases in England and Wales, the CPS, the NPCC and the College of Policing have recently launched an ‘improvement plan’ to tackle the disclosure issue.[7] The plan will include reviewing training, developing specialist disclosure experts in every police force, 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, and providing all multimedia evidence to the defence digitally.[8]

Time will tell whether the plan brings about the positive results intended.

Best practice criminal disclosure

The Criminal Procedure and Investigations Act 1996 as amended by Part V of the Criminal Justice Act 2003 (‘CPIA’) sets out the test for disclosure in criminal proceedings, namely that the prosecutor must disclose to the defence any prosecution material which has not previously been disclosed and which might reasonably be considered capable of undermining the case for the prosecution against the accused or assisting the case for the accused.

CPIA is supported by the Code of Practice issued under section 23(1) of CPIA (‘the Code’). The Attorney General’s Guidelines for Disclosure for Investigators, Prosecutors and Defence Practitioners provide further guidance on the considerations applicable to criminal disclosure.

Once a decision to open a criminal investigation has been made then a decision should be made as to who will be on the investigation team and who will hold the designated roles and responsibilities in respect of disclosure duties.

The information obtained and reviewed during the course of an investigation should be categorised into one of the following categories:

  • evidence
  • unused material (sensitive and non sensitive material)
  • irrelevant material
  • material subject to legal professional privilege (‘LPP’).

Once the material has been categorised and recorded, the disclosure officer must send the prosecutor a copy of the schedules recording unused material together with a report. Potentially disclosable material should be sent to the prosecutor at the same time. The prosecutor will then decide whether this material should be disclosed to the defence.

There is an obligation on the prosecution to disclose its evidence in advance of trial. This is evidence which it intends to rely upon to prove its case and discharge its evidential burden at the trial of the accused. The common law has held that the right to a fair trial is intertwined with a defendant’s right to advance disclosure of relevant evidence to be relied on against him or her.

From the start of criminal proceedings, as well as considering what evidence should be served on the defendant, the prosecutor should consider what (if any) immediate disclosure should be made in the interests of justice and fairness in the particular circumstance of the case.

The CPIA sets out that primary disclosure of unused material should be served as soon as is reasonably practicable after the evidence for the charge(s) is served on the defence.[9] This will allow the defence to consider, at the earlier stage, how strong a defence they may have.

The CPIA imposes a continuing duty on the prosecutor, for the duration of the criminal proceedings, including any appeal, to disclose material which satisfies the test for disclosure.[10] Accordingly, if new material comes to light in the course of the criminal investigation and after the non-sensitive schedule has been served on the accused, then it will need to be treated in the same way as the material obtained earlier in the proceedings and any disclosable documents disclosed to the accused as soon as reasonably practicable.[11]

Proper disclosure is fundamental to ensuring fairness in criminal proceedings and failure to ensure disclosure obligations are discharged may have the following serious consequences:

  • the accused may raise a successful abuse of process argument at the trial;
  • costs may be awarded against the prosecution for any time wasted if prosecution disclosure is delayed;
  • the court may decide to exclude evidence and the accused may be acquitted as a result;
  • the appellate courts may find that a conviction is unsafe on account of a breach of the prosecutor’s disclosure obligations.

What does all this mean for Private Prosecutions?

It is not unreasonable to wonder if one possible consequence of the current disclosure crisis in public prosecutions could be a trend for more victims to choose to take matters in their own hands, lacking confidence in the state to get it right.

In England and Wales most criminal trials are prosecuted by the CPS, but private prosecutions are on the rise. A criminal private prosecution can be started by any person or organisation under the powers afforded in section 6(1) of the Prosecution of Offences Act 1985. Private prosecutions are proving to be a particularly effective route to justice in cases where the CPS is unwilling or unable to assist.

To all intents and purposes a private prosecution will be identical to a public prosecution except the conduct and motive of the private prosecutor will commonly be subject to greater scrutiny by the courts than the CPS would normally encounter. For that reason it is particularly important that those with the conduct of private prosecutions maintain the very high standards of conduct that would be expected of a public prosecutor.

A private prosecutor, just like a public prosecutor, is required to comply with the statutory disclosure regime which is complicated and onerous. Furthermore, there are issues that are unique to disclosure for the private prosecutor, such as the tension between material that meets the test for LPP but also the test for disclosure, which require handling with the greatest care. It is therefore most important that private prosecutor understands their disclosure obligations at the outset and conducts themselves in such a way throughout proceedings to avoid giving rise to the type of criticism that has recently been levelled at the CPS.

The recent media headlines serve to highlight the resource constraints that the CPS are operating under. We do not expect to see that picture improving anytime soon. In fact, we think as state resources get tighter it is far more likely that that charities, businesses and others will opt for the private prosecution route to secure the justice they seek.

For those contemplating taking on a private prosecution, whether that be a victim of crime, a charity prosecuting to further its charitable objectives or a company prosecuting to protect their intellectual property, there are some basic steps that can be taken to ensure that you are meeting your disclosure obligations in fair and effective way:

  1. Always take legal advice on whether you will be able to meet your disclosure obligations. The private prosecutor does not have the same powers available to them that public prosecutors do to obtain information that is not already in the possession of the prosecutor. It may e necessary to engage the services of a qualified investigator at the outset in order to lawfully obtain such information. In short, if you cannot meet your disclosure duties you should not commence a private prosecution.
  2. If you decide to proceed then make sure that you have trusted advisers on-board from the outset to assist you with disclosure. Criminal disclosure is complicated process and a concept that is foreign to many lawyers. It is essential to have the right team in place to assist with this task. If the case gives rise to particularly difficult disclosure issues it may be advisable to secure the services of independent counsel to ensure that the appropriate degree of independence can be achieved.
  3. Define the roles and responsibilities for those undertaking disclosure at the outset of the case. This is important to ensure that clear lines of responsibility can be maintained throughout the case.
  4. Ensure you prepare a disclosure management policy at the outset of your prosecution which clearly and accurately states the approach you have taken to all aspects of disclosure. This policy will be invaluable in explaining the process undertaken and defending any future challenges around whether the exercise has been performed to the required standard.
  5. Finally remember, disclosure is an on-going duty. If new material comes to light in the course of the investigation ensure that it is treated in exactly the same way as the material obtained at an earlier stage in proceedings.

These steps are best practice the conduct of criminal proceedings. Private prosecutors have no less of a high bar to be watertight on disclosure and presumably judges will be probing disclosure standards all the more in light of recent headlines.