In 2017 HM Crown Prosecution Service Inspectorate published a report criticising the police and the prosecution concerning the disclosure process to the defence.
The process of disclosure requires the police to identify non-sensitive unused material. The officer in charge of the investigation tasked with this is the “disclosure officer.” At the time of writing 46.3% of prosecutors and defence practitioners believed schedules were poorly prepared:
“Our findings show that the police do not understand what constitutes sensitive material and are routinely not scheduling sensitive material correctly.”
Inspectorate report robbery case study;
“A defendant[…]refuted his guilt[…]claiming that the victim was a violent drug dealer who had actually robbed him. Neither at the point of charge nor upon receipt of the defence statement did the police or CPS make any enquiries to ascertain whether any intelligence existed to support his claim. The Crown Advocate subsequently reviewed the case[…], contacted police and received intelligence that confirmed the claims[…]. As a result, the prosecution offered no evidence at court and the case was dismissed. The defendant had been remanded in custody for over six months and the defence subsequently submitted a formal complaint to the directorate of professional standards of the relevant force, on the grounds that crucial disclosure […] had not been forthcoming.”
Liam Allan, a student accused of rape, had his case dropped after 40,000 messages disclosed saw the victim request meetings of casual sex, according to reports. The BBC reported that a case, involving a man accused of raping a minor, was also discontinued on the basis of disclosure.
Some insist that the police are under pressure due to funding cuts, causing failings. Whether that is true or not, the Inspectorate report identifies issues with training that need to be addressed.
The report’s recommendations mostly involved the CPS and police. The CPS reported incidents in the media, attempting to distance themselves from the police, despite lacking compliance with recommendations. It is then left to the defence to force issues of disclosure, which can prove impossible, without any notion of their existence.
The laws which preceded the disclosure rules were placed due to historic miscarriages. If these are not followed by the police or CPS, we may return to those days.
Author Rubin Italia, Duncan Lewis’ Crime Director, is ranked in Chambers and Partners 2017/18 and a Recommended Lawyer in Legal 500 2017. He has experience in a wealth of criminal areas, including counter-terrorism, the London Riots and serious drug offences.
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