July 14 2024
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Our Kafkaesque courts are complicit in widespread disclosure failures

Our Kafkaesque courts are complicit in widespread disclosure failures

Beyond the Wall, HMP Glenochil, Scotland Gold Award for Watercolour


Beyond the Wall , HMP Glenochil, Scotland Gold Award for WatercolourThe US lawyer and author John W Whitehead in an article headlined Kafka’s America wrote:

‘We now live in a society in which a person can be accused of any number of crimes without knowing what exactly he has done.’

In courts in England and Wales, lawyers are often expected to advise their clients on their plea without sight of any adequate evidence despite the Criminal Procedure Rules requiring this.

What is all the more disturbing is the evident complicity of a court system in assisting prosecutors to side-step their duty under the rules to provide basic information supporting a charge even where this must be available. This is deeply important given the often very poor police summary of evidence that the Crown attempt to pass off as ‘initial information’.

  • Earlier this week, HM chief inspector of the Crown Prosecution Service, Kevin McGinty, told the House of Commons justice select committee that failures by the police and prosecutors to disclose evidence were to be the subject of a joint criminal justice inspection (here).

Time and time again the same courts that will rigorously and selectively enforce rules against the defence somehow feel it is entirely permissible to ignore this institutionalised failure to supply evidence that under the rules the Crown are obliged to provide. This is often material that must be have been supplied to them by the police under file-sharing arrangements.

For example, if the Crown has decided that a charge and prosecution are justified they must usually have had sight of some witness statements before the date of the first hearing. Normally at the very least there is a statement from the complainant. It is – I suggest – not the non-availability of this evidence but a policy decision by the CPS not to disclose this available documentation.

There is a divide in the judiciary between modernisers like Lord Leveson who wish all participants in the criminal justice system to engage with and benefit from the use of Information technology and others who seem to feel it is perfectly reasonable for the defence practitioner to invest their limited resources into IT but to gain no benefit from it (such as early service of evidence). The Criminal Procedure Rules (CrimPR 8.3. (iii)) provide for this – but it does not happen.

The reactionary forces in the judiciary maintain the fiction that, although the rules provide for service of ‘available statements’ and relevant documentary or digitalised exhibits, that if the Crown prosecutor does not possess them in court then that evidence actually residing on a server elsewhere is ‘not available’. That is, I believe, a ridiculous view in this digital age when the advocate is a finger-click away from access to material held by prosecution head office.

In addition to this, those seeking to obstruct fair and fast disclosure call upon judicial comments in old cases relating to disclosure under old disclosure regimes and old rules of procedure which have very little bearing on the present Criminal Procedure Rules 2015, the latter which encourage early disclosure. To be blunt old law and precedents must be read in the context of the modern rules and the latter must prevail.

There would be little point in the new Criminal Procedure Rules if, where inconsistent with older judicial decisions, they were rendered ineffective.

If the courts show partiality by continually permitting inadequate service and nevertheless insisting on a plea being taken, this is an attempt by extra parliamentary means to reverse the burden of proof. To combine this with bullying – such as threatening a loss of discount on subsequent sentencing – is reprehensible, especially as the new sentencing guidelines provide ‘exceptions’ to loss of discount, for example, where it was ‘necessary for him to receive advice and/or to see evidence in order for him to decide whether he should plead guilty’. Without this evidence, the case should be put back or adjourned.

I should point out that it is not, under a poorly funded legal aid fixed fee regime, in the defence advocate’s interests for a case to be adjourned. Recently I acted on a case where a client in custody denied making harassing phone calls. From day one, we called for service of the telephone records but they arrived 30 minutes before the trial was to start.

I was called from the cells right on time. My attempts to seek further time to discuss this evidence with the client were treated by the clerk and the chairman with frankly what I can only say is hostility. I was allowed 10 minutes, but by the time I returned the client had injured himself in distress and was taken to hospital. The failure of the Crown to serve in time had suddenly become my fault in the eyes of the court. This will be familiar to many defence lawyers made to feel like naughty children whilst doing their job according to professional and ethical standards.

I have to be frank. The way some in the judiciary treat defence lawyers faced with poor initial evidence or subsequent late disclosure is disgraceful. If only they did their job and took to task the prosecution (as an organisation not as individuals) the defence would not have to make applications to adjourn more properly made by those responsible for the failure.

It seems that the Criminal Law Solicitors Association campaigning is beginning to have some impact in the corridors of power. I hope so. All we ask is for the Criminal Procedure Rules to be enforced properly fairly and in accordance with the European Convention on Human Rights. If the legal establishment does not believe in their own rules then they should abandon the pretence and say so, not slyly facilitate the prosecution’s disregard.

We don’t want to go the way of Soviet courts where criminal law became a ‘reliable’ instrument of rule. Our system should be a reliable instrument of justice not some Kafkaesque nightmare where ‘a person can be accused of any number of crimes without knowing what exactly he has done’.






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