The nature of the work we undertake is such that we have many clients who have suffered life changing injuries or have lost loved ones in a road traffic accident. Often the circumstances of the accident are not entirely clear. Consequently, key information comes from the police accident report and any resulting police investigations. It is often the case that insurers will not provide a substantive response on liability without sight of the police evidence and that can sometimes lead to difficulties, particularly where there is a financial need, notwithstanding rehabilitation needs may be met through the Rehabilitation Code.
Interim payments may be required and it can be difficult to persuade insurers to make significant payments absent clearer evidence on the accident circumstances. Issuing proceedings with a view to making an application for an interim payment can be also be problematic without the police report.
In some cases, the police evidence is forthcoming relatively quickly. However, this tends to be those cases where the police have reached a conclusion that there are no criminal proceedings to bring. The difficult lies when criminal proceedings follow. These proceedings can be lengthy and often final trials do not take place until at least a year after the accident. All too often injured or bereaved people are left in the dark not knowing if liability is to be accepted in their civil claim. Insurers will not generally accept responsibility without the police report and the standard police response has historically been that evidence cannot be provided prior to the conclusion of the criminal trial to avoiding the risk of prejudicing their case.
This is distressing and stressful for injured and bereaved people, who not only are having to come to terms often with life changing injuries or the loss of a loved one, but also often in financial difficulties. So what can be done to put more pressure on police forces to provide disclosure before a criminal trial?
The Crown Prosecution Service have published guidelines to assist police forces around the country when faced with requests for disclosure where criminal proceedings are ongoing. They are useful when faced with a reluctant police force. Under the guidelines, entitled “Disclosure of Material to Third Parties” a sub category considers disclosure in road traffic collisions where a criminal prosecution is pending.
The guidelines recognise that the practice of disclosure varies across constabularies with resulting inconsistencies of approach. The guidelines are an attempt to provide consistency, with the guidelines recognising that the need for information will have an important effect for the party pursuing civil litigation, both in terms of obtaining rehabilitation and also funding for financial assistance. The guidelines recognise the need to balance the need for information against the charged defendant to a fair criminal trial.
The guidance makes clear that it will be rare for disclosure to be refused and only if there are good reasons to show that the criminal trial be will prejudiced. The guidelines go as far as to say that in all cases, the Police Collision Report, the Forensic Collision Investigators Report together with accompanying photographs, plans, CCTV footage and note book entries of reporting officers should be disclosed upon request, subject to editing as required, and that in the majority of cases statements should also be disclosed, subject to permission from the statement provider, with the police encouraging the statement provider to give such permission.
The guidance also sets out time frames with the longest time frame for disclosure of police witness statements, no later than 9 months from the collision, with documentation such as collision reports, investigator reports and some statements no later than 6 months from the collision.
Many police forces are not fully aware of the guidance, and investigating officers may in the first instance refer the matter to their case progression unit who will invariably refuse disclosure on the grounds of prejudice. However, the final decision rests with the Crown Prosecutor, so injured parties should not be put off by an initial refusal. Prosecutors are more alive to the guidance and will in most cases provide the disclosure needed to help press insurers in a civil claim for an admission and funding.