On 18 July 2017 Her Majesty’s Inspectorate of Constabulary (HMIC), the body that independently assesses and reports on the efficiency and effectiveness of the police published a report: ‘Making it fair – a joint inspection of the disclosure of unused material in volume Crown Court cases’. The report followed a three-month inspection into the police and Crown Prosecution Service (CPS) compliance with the disclosure of unused material provisions.
On the same day as the HMIC published its findings, a report was published into the failings surrounding the collapse of ‘Mouncher and others’, the trial of eight police officers in 2011, for perverting the course of justice, for their role in the arrest and prosecution of five men for the murder of Lynette White on Valentine’s Day, 1988. In the report, Richard Horwell QC made a number of recommendations in relation to disclosure, commenting that, ‘disclosure is a specialism: not an exercise in reading material and drawing up lists. Appropriate recognition of that fact is necessary and minimum standards and accreditation are necessary to ensure a raising of standards nationally.’
In every criminal investigation the police (and other authorities with criminal investigation powers such as the Serious Fraud Office, National Crime Agency or Financial Conduct Authority) are required to record, retain and reveal to the prosecutor all material obtained during the investigation, which may be relevant to it. When criminal charges are brought, there will be material which the prosecution relies on as evidence and material which it does not rely on, known as ‘unused material’.
The HMIC report acknowledges that disclosure of unused material is a key factor in the prosecution process. It should be considered at the point where a criminal investigation starts, continue at the point of charge, and be at the forefront as the case progresses. Every unused item that is retained by police and considered relevant to an investigation should be reviewed to establish whether its existence is capable of undermining the prosecution or assisting the defence case.
Following the inspection, HMIC concluded that police and prosecutors are causing delays and undermining justice in criminal trials by failing to follow basic rules about disclosing evidence to the defence.
The HMIC report makes a number of recommendations designed to ensure that the process is substantially improved, including:
- The police or CPS must correctly identify all disclosure issues relating to unused material at the charging stage.
- The CPS should comply with the Attorney General’s Guidelines on Disclosure to 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 on training that is of sufficient depth to enable police forces to provide effective training on disclosure to all staff involved in the investigation process.
- Police forces should establish the role of dedicated disclosure champion and ensure that the role holder is of sufficient seniority to ensure they are able to work closely with the CPS.
- The police and the CPS should review their respective digital case management systems to ensure all digital unused material provided by the police to the CPS.
The report on Mouncher makes numerous recommendations which echo the HMIC report, including:
- Introducing a minimum standard and national accreditation process for disclosure officers;
- A national training programme for disclosure;
- Introducing a national standard and guidance regarding quality reviews of a disclosure officer’s work;
- A review of the manner in which quality assurance exercises are conducted by the CPS.
Mr Horwell QC comments in his conclusion, ‘if some of the recommendations I have made appear basic or straightforward that is because they are; the experience of Mouncher shows that disclosure failings, and in particular the most damaging failings, need not be complex.’
The HMIC report reinforces the premise that disclosure can be simple: ‘Whilst the disclosure regime is not complicated or difficult, this inspection has identified a number of issues which demonstrate non-adherence to the disclosure process. Rather than addressing non-compliance, our inspection has found a continuing decision by the police and CPS to accept the risk associated with poor disclosure practices and procedures in respect of disclosure handling...’
The HMIC report concludes: ‘Non-compliance with the disclosure process is not new and has been common knowledge amongst those engaged within the criminal justice system for many years and it is difficult to justify why progress has not previously been made... Until the police and CPS take their responsibilities in dealing with disclosure in…more seriously, no improvement will result and the likelihood of a fair trial can be jeopardised.’
It is hoped that these recommendations in two separate reports will be acted on, to ensure that all those individuals subjected to the criminal justice system, whether defendant or victim, receive justice.