May 18 2022

The Cardiff Five and the disclosure problems that ‘blight our justice system’

The Cardiff Five and the disclosure problems that ‘blight our justice system’

The Cardiff Five and the disclosure problems that ‘blight our justice system’

Richard Horwell QC’s investigation into the collapse of the prosecution in R v Mouncher and Others has made a numbing read for the surviving members of the Cardiff Five, three of whom had been convicted of the 1988 murder of Lynette White in Cardiff. The trial of eight officers and two civilians for perjury and attempting to pervert the course of justice in the original murder trial was halted by the Crown when the disclosure process disintegrated. This saga, spanning almost 25 years, is one of the most significant miscarriages of criminal justice in modern British legal history. Kate Maynard writes

Richard Horwell has concluded that the trial collapsed due to human error by an underfunded and inexperienced prosecution team. He rules out malice or bad faith, but identifies a wholly rushed and inadequate decision making process that led to the trial ending. Sadly, his findings are unlikely to shake the suspicion of foul play held by supporters of the Cardiff Five.

His report, published within days of a damning Joint Inspectorate review of general disclosure failings, has interesting things to say about disclosure processes, but fails to address the larger problems with the 1996 Criminal Procedure and Investigations Act (CPIA) and the scandalous starvation of funds to which the criminal justice system is currently subject.

You can read more on the Cardiff Five case on the Justice Gap here

You can read about the new report jointly published by the Crown Prosecution Service Inspectorate and Her Majesty’s Inspector of Constabulary on the Justice Gap here.

‘Disclosure problems have blighted our criminal justice system for too long and although disclosure guidelines, manuals and policy documents are necessary, it is the mindset and experience of those who do disclosure work that is paramount.’
Richard Horwell QC


 ‘The only way this case will fail is through disclosure’
The Cardiff Three were convicted of murder at a 1990 retrial on a case which rested on a single confession supported by civilian evidence, all of it achieved by gross bullying by the South Wales Police. They were freed by the Court of Appeal in 1992, and DNA tests subsequently identified the true killer as a man named Jeffrey Gafoor, who confessed to the murder and pleaded guilty.

Three days after the Gafoor confession the SWP apologised for the wrongful conviction and imprisonment of Stephen Miller, Yusef Abdulahi and Tony Paris, and announced a criminal investigation into the original case. Det Supt Christopher Coutts was appointed as Senior Investigating Officer. In 2004 the newly created IPCC decided to supervise the investigation. CPS instructed counsel, Nicholas Dean QC with two juniors to advise. As Horwell says, the investigation was vast, covering trial, retrial, appeal and the 10 years of developments since then.

In 2007 three civilian witnesses were convicted of perjury, after admitting that they had complied with the police version of events under ‘extreme pressure’ including lengthy interviews in which they were threatened with murder charges. They each received 18 month prison sentences after the judge described police behaviour as ‘simply unacceptable in a civilised society’.

Finally, in 2009, 13 original investigating officers, including Graham Mouncher, were charged with serious offences, alongside two more civilians. The evidence against them was by all accounts very strong. However, the records of the original investigation, trial and retrial, appeal, and subsequent investigations were estimated at over a million pages. Horwell’s report starts with a prophetic comment early in the case from Det Supt Coutts ‘the only way this case will fail is through disclosure’.

The trial of the first 10 defendants commenced at Swansea Crown Court on 4 July 2011 before Mr Justice Sweeney. The defence case was claiming the Cardiff Five had been guilty despite their successful appeal and pressed constantly for additional disclosure throughout the trial. It became increasingly obvious that the description and disclosure of relevant material was poor. On 28th November, Sweeney J imposed a novel litmus test on the prosecution disclosure regime, ordering the production of certain documents which police had classified as disclosable but counsel had decided not to disclose. D7447 was a box of such documents, which could not be found. An officer claimed it was shredded on Coutts’ instructions, causing leading Counsel for the Crown to conclude that there could no longer be confidence in the disclosure process and to offer no further evidence. The defendants were formally acquitted.

Investigations were established by the IPCC and the HMCPSI. The three survivors of the Cardiff Five, Stephen Miller, Anthony Paris and John Actie sought a public inquiry under the Inquiries Act 2005, which was declined. In 2012 DS Coutts was given supervised access to his office to remove personal property. While there he found boxes containing D7447 and D7448. The surviving victims launched JR proceedings over the decision not to grant a public inquiry. Shortly before a renewed application for leave a further 227 boxes of ‘potentially relevant material’ was found. The JR was settled on terms by which the Home Secretary appointed Richard Horwell QC to investigate.

Human failings – not wickedness
Horwell, a former First Senior Treasury Counsel, takes a benign view of the participants’ motives, even finding as fact (‘the only conclusion that can be reached’) that there was no significance in the box of missing documents being found in Coutts’ office. The 227 boxes were innocent – they contained the microwave, the tea kitty, the paper waste, and other detritus cleared after trial. He criticises the police rather more for arresting their colleagues at 6am.

However, his report offers a detailed factual account of the document handling. It explains why it was thought that D7447 and other documents had been destroyed. That fateful conclusion was criticised by Horwell as over-hasty but it meant no search was made for them before the trial was abandoned. Horwell finds that the trial would have collapsed anyway because of the scale of disclosure failings. Consequently, it was ‘human failings that brought about the collapse of the trial not wickedness’.

The report makes 17 recommendations, 14 for police and three for CPS, avoiding fundamental controversies over the design of the CPIA disclosure process.   Unlike the Gross Review in 2011 Horwell relies not on ‘culture’ or ‘robust judicial management’ but prescribes a series of national standard forms and processes for training staff, quality-assuring work, recording disclosure policy and performance, document destruction and loss. There would be a sequential record of defence requests and responses.

If implemented, his scheme would leave far less wriggle room for either side. That would be particularly so if the Crown pays heed to his final recommendation:

The use of phrases such as ‘strict interpretation of the disclosure rules’ must cease and any support for them actively withdrawn. The abiding principle must be ‘if in doubt disclose’ and nothing must be permitted to qualify or diminish it.

Ironically, this final recommendation, if followed, would return us close to the common law position immediately before the intervention of Parliament with the CPIA 1996. Those hardened by courtroom battles may doubt that such a profound change will occur without Parliament intervening again.

HMCPSI and HMIC have meanwhile been conducting a Criminal Justice Joint Inspection (CJJI) under the Police and Justice Act 2006 into disclosure issues. The CJJI Business Plan 2016/2017 made Mouncher a focus for this inspection. Their joint report Making it Fair was clearly timed to come out in the same week as Horwell’s, and their conclusions dovetail neatly with his.

An important factor in Mouncher identified by Horwell was inexperience and poor training at every level, from police through CPS to junior counsel. The CJII supplements this: ‘The situation has not been helped by an over-prioritisation of the available resource on achieving deadlines under the Crown Court Better Case Management (BCM) process, rather than there being sufficient resource available to ensure disclosure is dealt with to the appropriate standard at the first opportunity.’ Predictably, though, neither report refers to the way that prosecution failings are exacerbated by the scandalous starvation of defence funding needed to combat disclosure problems adequately in individual cases.

The CJJI cast its net rather wider than Horwell, and a random file survey uncovered many other disclosure failures. A common failure is the production of inaccurate schedules of evidence; another is the seriously flawed disclosure decision. As in Mouncher the latter category results in longer or collapsing trials. The CJJI concludes that the problems here are weakness in training, supervision and quality assurance, not the 1996 Act which they (somewhat surprisingly in the circumstances) deem “effective”.

The report calls on the College of Policing to produce guidance and training on disclosure for all staff involved in the investigation process. It recommends ‘dip samples’ to monitor each CPS area and conclude the results in area quarterly performance review. And, importantly, it calls for new lines of effective communication between the CPS and police to resolve unused material disclosure issues.

These reports go to the heart of disclosure decisions. Along with improved management of disclosure processes, genuine co-operation between police and CPS would represent significant progress (in Mouncher, prosecuting Counsel took to holding conferences with police without even inviting CPS).

Home Secretary Amber Rudd has stated in response that ‘the Home Office will write to both the police and CPS to bring the attention to the report’s recommendations and every effort must be made to ensure they are acted upon’. This may seem feeble, but the Inspectorates carry real clout with police and CPS, and these changes are clearly intended to stick. This may be a rare payoff from the much criticised decision to choose a DPP who fits the Tory call for ‘a grizzled, criminal prosecutor rather than a defence, human rights lawyer’ to replace Keir Starmer.

However, these recommendations address the moment of disclosure rather better than the preliminary finding, selecting, retaining and recording of such material.   The 1996 Act was conceived and continues to rest on a quasi-mystical belief in the good faith of sufficient of the police officers who will operate it. As any economist can predict, good faith is hard to guarantee in an adversarial system where promotion, pay and pensions are structured to reward officers who win cases rather than those who give full disclosure.

The Gross review rejected any additional sanctions for non-disclosure, while the CJII and Horwell do not even mention it. Meanwhile in California, a prosecuting lawyer who fails to give proper disclosure will be suspended from practice, sometimes for many years. We need a similar provision here. Until lawmakers and the judiciary get their heads out of the sand on this issue no amount of tinkering with guidelines and reviews into collapsed cases will make the CPIA work properly.