Following recent well publicised disclosure failures by the Crown Prosecution Service (CPS) and Police, it is vital to ensure that miscarriages of justice are prevented.
The fallout from these national disclosure scandals has been significant. In response, the CPS and Metropolitan Police have swiftly published "A joint review of the disclosure process in the case of R v Allan" and the NPCC, College of Policing and CPS have published the "National Disclosure Improvement Plan".
The National Disclosure Improvement Plan highlights issues with capacity, capability, leadership, partnership and governance that affect disclosure. Of course those buzzwords do more to obscure than explain what actual changes the Plan suggests.
In terms of specifics the National Disclosure Improvement Plan states the following will take place, or be encouraged at an operational level:
- The funding of a new digital evidence transfer system
- The creation of a protocol regarding the examination of digital material, requiring officers and prosecutors to agree on reasonable lines of enquiry
- Review whether officers dealing with disclosure requires a relevant licence to deal with disclosure responsibilities
- Encouraging prosecutors to advise police officers to review relevant lines of enquiry if they have not been taken,
- The development of a joint protocol on the identification, handling and disclosure of third party evidence to be published in March 2018
- A planned update to the CPS Disclosure manual for February 2018 accompanied by further training
- The appointment of CPS "disclosure champions" for the Magistrates' court and the Crown Court by February 2018
- The creation of a joint forum including the police, prosecutors, the judiciary and defence solicitors and barristers to discuss practical measures to improve the disclosure system.
- The inclusion of reviews of disclosure failures in local police/prosecution team meetings.
Sadly, many of the recommendations in the wake of the recent disclosure scandals are more of the same. In relation to the suggestion that prosecutors could give guidance to police officers on how to do their job, it seems that little has been learnt from previous reviews of disclosure. For example, Her Majesty's Crown Prosecution Service Inspectorate ("the HMCPSI") produced a report in July of 2017 entitled "Making it fair: The disclosure of unused material in volume Crown Court cases".
That report made it clear that to those working on the ground with disclosure the real issue was a dearth of time and resources - not stubbornness on the part of the investigators, or unwillingness to get involved on the part of prosecutors. It is questionable to what extent the recent suggestions will make an actual difference, as they do not appear to have fully considered the conclusions of previous reviews.
This is illustrated by the proposal that one solution would be the introduction of more protocols on disclosure. The current disclosure regime includes multiple documents on top of the statutory regime, creating a sizeable amount of guidance to read and retain. When one considers the concerns raised in the HMCPSI report, it begs the question whether more paper will really crack the nut of getting disclosure right in the criminal courts.
There does appear to be a genuine attempt by the CPS and Police to review their processes and procedures in light of the many recent cases that have fallen apart due to disclosure. This issue is something that will take time to correct - so the creation of a joint forum involving various participants in the criminal justice system is a welcome development, so long as the forum prioritises learning and reflection rather than preserving the status quo with the gloss of consulting stakeholders.
The new efforts of the CPS to improve how they handle disclosure should not be ignored by other prosecuting authorities, or those prosecuting privately. With heightened awareness of disclosure issues in the criminal justice system, other prosecutors should take a moment to take stock of their work - has disclosure been dealt with efficiently, are the right resources in the right places, and perhaps most importantly, do they have the right expertise in the right roles?
The reason why these questions are important can be seen in the impact of the widely reported decline in police and CPS budgets and staffing levels along with increased workloads for officers and prosecutors which have, it is suggested, been the primary driver for recent failings.
Of course, only time will tell whether the increased supervisory role of disclosure "champions" and the encouragement of individuals to spend more time than ever on disclosure is actually implemented, or results in a repetition of the past: reviews highlighting the real issues of resources and time and the implementation of solutions that fail to deal with those concerns.