Now we have finally woken up to the reality of disclosure failures, what next?

There has rightly been anger at recent failures of police and prosecutors to disclose evidence to the defence, including in the cases of Liam Allan and Oliver Mears, wrongly accused of sexual assault. Recent interviews with Allen, who this week received an apology from police and the Crown Prosecution Service, give a good insight into what impact the proceedings, stretched out over two years, have had on his life – ‘a living hell’.

And it’s not only the defendant that suffers. Think of the time, effort and money that is wasted when a case is dropped so late in the day. Think of the ordeal suffered by witnesses and by families and friends.

While acknowledging fault in the case of Allan, who this week received an apology from the CPS and police, Claire Lindley, crown prosecutor for South London, suggested that the matter was as simple as defendants ‘appealing in the normal way’ if they feel they are wrongly convicted.

This is scant comfort for an innocent person in prison, and not very reassuring for those interested in seeing that justice is served at all stages, from arrest to conviction, or acquittal.

But Lindley did also acknowledge that Allan’s case, in which police failed to disclose crucial evidence, ‘highlighted some systemic and deep-rooted issues that have been apparent to those working in the criminal justice system for some time’.

Unfortunately, disclosure failures are not a new phenomenon: they have been a running sore in our justice system for decades.

Failures to disclose evidence to the defence was, for example, core to many of the high-profile miscarriage of justice cases of the 1970s – including the cases of the Guildford Four. Amidst a litany of injustice in that case was the failure to disclose a witness statement that showed that one of the defendants (Gerry Conlon) was asleep on a bench in a London park when he was supposed to be in Guildford planting bombs. As a result four wrongly convicted people spent 15 years behind bars.

The public outrage over these and similar cases sent shockwaves through the justice system. The Criminal Cases Review Commission was created to investigate miscarriages of justice and a new law was passed on disclosure: it required the defence to make disclosure easier for the prosecution by giving an outline of their defence.

But the problem was never solved. Over the following decades, numerous reports were commissioned on the question of disclosure by inspectorates for the police and prosecution service, including the most recent report in July 2017. All identified extensive failures. The CPS now admits: ‘There are systemic disclosure issues across the criminal justice system, and it will take a collective effort from all participants for improvements to be made.’

Despite such clear warnings over so many decades, it took further high-profile miscarriages of justice to focus people’s minds. So, we are now awake to the problem, How do we make sure that this time we fix it?

We need to start by remedying ongoing miscarriages of justice. I welcome the decision to review all ongoing rape cases but, although rape cases present particular challenges in this area, disclosure issues are not unique to these cases. We also need to recognise that people are currently serving prison sentences who would not have been convicted if they’d been given proper disclosure. At the very least we need to ensure the Criminal Cases Review Commission is properly resourced to review cases that are brought to its attention. Instead, it has faced repeated and severe cuts to its funding.

We may also need to look to the US practice of creating ‘conviction integrity units’ to review the safety of convictions where particular patterns of failure are identified.

Crucially, we need to be honest about the complexity of the challenge. It has never been an easy job for the police and prosecution to identify all of the evidence they are holding that could be of use to the defence. New technology compounds this: just think of the quantity of electronic information sitting on your own computer or phone. Numerous proposals are already being made, including reviewing the training that police and prosecutors receive, having specialist disclosure experts in every police force, and providing multimedia evidence to the defence digitally.

But, more broadly, we need to recognise that we can only stretch our justice system so far before it reaches breaking point.

Continued cuts to Ministry of Justice funding add up to a ‘real-terms cumulative decrease’ of 40% (or £9.3bn) in the period 2010-2020.

The effect is obvious. if you are an overworked and underpaid police officer, prosecutor or defence lawyer, due process safeguards can too easily grow to feel like “legal technicalities”, an administrative inconvenience you don’t really have the time to deal with.

Everyone – victims, defendants, police, and prosecutors alike – deserves a better justice system than that.

This article was first published on February 5, 2018