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THE JOYS OF DISCLOSURE

You may have noticed in the last couple of weeks the papers, radio and TV becoming a little bit excited about failures in Disclosure in criminal cases.  I set out below what the fuss is all about.

You may have heard of the injustices perpetrated upon a number of Irish people arrested for alleged terrorist bombings in Guildford and Birmingham.

They were eventually released after it was found that they had not had a fair Trial because items of evidence which would have gone some way towards exonerating them were withheld from the Defence.

Accordingly, a new system for Disclosure was set up. It was intended to ensure that the Prosecution shared with the Defence any evidence which was in the hands of the Police/Prosecution which might undermine the Prosecution case or support the Defence case.

In almost every case there is a substantial amount of what is called Unused Material and that Unused Material was something that the Defence was originally able to visit the Police Station and go through in the hope of finding anything which might undermine the Prosecution or support the Defence case.

The system was revised so that in any case a Police Officer is appointed Disclosure Officer. It is his/her job to make a Schedule of all evidence and to disclose, through the Crown Prosecution Service, anything which might either serve to undermine the Prosecution case or support the Defence case as it is known to the Police/Prosecution.

In order for the system to work to its fullest potential the Defence are required in the Crown Court, and able in the Magistrates’ Court, to serve a Defence Statement setting out the Defence case. 

The Prosecution are under a continuing duty to review the evidence and consider whether in the light of any new evidence there are items which should be disclosed which either undermine the Prosecution case or support the Defence case.

The problem is that in a lot of cases the system isn’t working, or at best is working too late.

You will have read in the papers of a number “near misses” where people have got as far as rape trials and only at the last minute has sufficient evidence been released by the Prosecution which would enable the Defence to place documents before a Court which resulted in no evidence being offered.

The question is why it is not working.

In our opinion there are a number of answers.

We will start with the Police.   The Police are tasked with investigating crimes. In theory they should be investigating fairly, looking for evidence which may point towards a suspect and evidence which may point away from a suspect.

Our own experience is that they have a tendency to work on a theory as to what has happened and who is responsible and search for evidence which supports it and very often blatantly ignore any evidence to the contrary.

This is particularly the case when dealing with assault matters where the first person to get on the phone to the Police gets to  make a Statement and the second person gets arrested.

As part of this general cultural approach to investigation there then comes a reluctance to then disclose anything which might reduce the chances of charge and later conviction.

The College of Policing have recently accepted that Police Officers probably do not have sufficient training in the question of Disclosure and their Supervisors probably do not have the confidence that they know enough to be able to train properly.

In addition to that, the CPS, being under pressure themselves, do not always adequately consider the Schedules placed before them.

Add to that the fact that, with the desire to push on Trials quicker and quicker, but the lack of resources available to the CPS, Disclosure is very often made just before, if not on the day of, the Trial. That of course puts the Defendant at a terrible disadvantage in being able to consider long Schedules in which the odd nugget of good defence evidence might be hiding.

The Director or Public Prosecutions and the Head of the College of Policing have now come to the conclusion that it would be better if Disclosure were to be dealt with at an earlier part of the proceedings.   That would be wonderful, but we can’t help thinking that the fact that the Disclosure Officer has complete control as to what goes in the Schedules still leaves the fox in charge of the hen house and nothing much is going to change  until there is a change of culture and the way that the Police investigate crimes.   We are not holding our breaths