‘The courts urgently need to get a grip on disclosure’

Some weeks ago the media picked up on the case of Liam Allan and the prosecution’s failings in that case to disclose not only relevant material but material that proved the defendant’s innocence and, indeed, the fact that he should never  have been charged with any offence.

The evidence was there from the start of the investigation but apparently no one had seen it.  That case was followed by another, then another and more over the next few weeks.

The Crown Prosecution Service was quick to react. They called for a review of all rape cases to check that material which should have been disclosed was disclosed.

No doubt this was done to restore public confidence in the criminal justice system and the director of public prosecutions, Alison Saunders was quick to confirm that she was satisfied (although goodness knows on what she based this conclusion) that no one would have been wrongly convicted.

So the public was therefore reassured.  No possibility of any wrongful convictions before the Liam Allan case, all rape offences being reviewed, no possibility of anything going wrong there, bandage applied, and everything okay. Now let’s get back to work.

In September 2017, long before the Liam Allen case, the Criminal Law Solicitors Association launched a survey aimed particularly at disclosure failings in the Magistrates’ court.  A staggering 90% replied that such failings were commonplace. This was not picked up by the press although it was of considerable interest to the House of Commons’ justice select committee.

Following the Liam Allan case and the reassurance given to the public by the DPP, solicitors and barristers practising criminal law were incensed that the public were being fed the line that these problems only occurred in a few rape and serious sex cases and everything in the disclosure garden was rosy .

Any lawyer involved in police investigations on behalf of a client, working in the Magistrates’ court or in the Crown court knows full well that disclosure problems have been present  on a daily basis and are sadly endemic throughout the criminal justice system – and so we set out to prove just that.

Another survey was launched but this time in conjunction with the London criminal Court Solicitors Association and the Criminal Bar Association.  Quite unbeknown to us, the BBC’s File on 4 team was planning a programme to deal with disclosure issues and potential miscarriages of justice in cases other than the high profile cases which were already receiving media attention. They learned of our survey and indicated they would like to be involved in it and to use it in their programme.

They set impartial questions and restricted access to the survey to those who were either members of the CLSA, LCCSA and CBA or those engaged in criminal work with a current certificate to practice.

There were almost 1,300 responses.  The survey ran for two weeks. The results were, without moving into the realms of hyperbole, utterly shocking, although it is unlikely the results will have shocked any of us in practice. They will be shocking to lawyers who do not practice crime, they will be shocking to members of the public and they will be shocking to those who tried to suggest that the problem was only limited to a handful of serious sex cases.

If you did not hear the programme or see the survey results they are here (here).

The programme did not have the time to focus on another issue which is connected to disclosure issues and troubles the professions in equal measure. That is the general failure of the magistracy and judiciary in tackling disclosure issues. Courts should apply the law and rules properly and the sooner they do so then the sooner the disclosure debacle will halt. I hope that those with power to do so can get an urgent grip on the rules by tightening them and removing any ambiguity. The profession is more than happy to help in this regard .

Another sanction is to change the absurd rule that any wasted costs order is paid by one government body (the CPS) to another (the Legal Aid Agency). It should be paid to the lawyers suffering any loss caused by a disclosure failure triggered adjournment.  Perhaps also there is an argument that there should be fixed compensation paid to those affected (prosecution witnesses who have wasted a journey to court and, of course, the defendant and any defence witnesses).

The role of defence lawyers is crucial in dealing with disclosure because, as the examples in the programme make clear, without them innocent people would be convicted. Given our crucial role, our significance to the proper workings of the CJS and its ultimate aim, justice, why then is the government still cutting legal aid?

I have to say that the reaction of the CPS to the disclosure issues in File on 4 was quite a surprise. They appear to be still in denial as to the extent of the problem but hopefully they will now accept that not only is there a problem but also that it is an extensive one.

It was even suggested by CPS in the programme that it is a problem ‘shared with the defence’. I cannot see any justification for that at all. It is a problem and it is a problem for the CPS and/or the police. It is the defence who overwhelmingly responded to the surveys based upon their experiences of trying to extract evidence from the prosecution. It seems to me the problem is capable of being resolved and relatively easily. There are many reasons for the failings; lack of resources is probably one of them, lack of understanding and training is another, neither is a good excuse and whatever the causes of the problem, they are capable of being resolved for the good of the justice system.

We have said over and over again that the justice system is crumbling, the constant salami slicing of rates has taken its toll. Criminal lawyers are part of an ageing profession and it is becoming ever more difficult to replace criminal lawyers as the old ones retire or leave. The ageing of the profession indicates that youngsters are no longer interested in a career in crime. It is simply no longer attractive from the point of view of prospects and living standards. That however is a completely different topic which I’m happy to address at a later time, but something needs to be done pretty quickly before we see ever larger areas of the country turned into advice deserts.

This article was first published on March 1, 2018