July 22 2022

Lawyers call for disclosure to be taken out of the hands of the police

Lawyers call for disclosure to be taken out of the hands of the police

Lawyers call for disclosure to be taken out of the hands of the police

Lawyers specialising in criminal appeals are calling for disclosure to be taken out of the hands of the police and prosecution following concerns that officers were being trained to bury evidence. In a joint submission to the House of Commons’ justice committee, the Centre for Criminal Appeals and the Cardiff University Innocence Project has called for the creation of an ‘Independent Disclosure Agency’.

‘Since the pervasiveness of disclosure failings is not merely a matter of inadequate resources or poor training, but also the result of in-built flaws with the current legal framework, we believe radical change is needed to ensure fair trial rights are protected,’ the groups argue in their response.

The idea is for a new body to consist of legally-qualified staff with full access to all police material via the HOLMES computer database. ‘IDA staff should review all such material, identify and remove any genuinely sensitive information, and disclose all remaining material to both prosecution and defence,’ they say.

Under the proposals both parties would be given ‘equal levels of disclosure’ in a system that would enshrine ‘if in doubt, disclose’ principle as proposed in last year’s report into the Cardiff 3 debacle. The author of the so called Mouncher report, barrister Richard Horwell QC noted that disclosure problems had ‘blighted our criminal justice system for too long’.

Last week the Centre for Criminal Appeals published evidence obtained through Freedom of Information requests which had been collated in preparation of a joint CPS Inspectorate and Her Majesty’s Inspectorate of Constabulary report which was published on the same day as Horwell’s report. The two watchdogs found disclosure failing were widespread and that the quality of disclosure by the police was ‘poor’ in more than four out of ten of cases (42%) and, in relation to the CPS handling, poor in one in three cases.

The CCA received the notes from a series of focus groups with police officers, prosecutors and the judiciary. As was reported by the Times last week, the notes suggested that some officers were proactively trained to withhold from the defence. ‘In even quite serious cases, officers have admitted to deliberately withholding sensitive material from us and they frequently approach us only a week before trial,’ one unnamed prosecutor said. ‘Officers are reluctant to investigate a defence or take statements that might assist the defence or undermine our case.’

One focus group recorded: ‘They did not agree on the MG6D [the schedule for sensitive material] being for issues of covert intelligence-related sensitivity only and have been trained to put items on here that they do not want disclosed to the defence.’ Another said: ‘If you don’t want the defence to see it, then [evidence] goes on the MG6D’.

In response to the coverage, the National Police Chiefs’ Council (formerly ACPO) issued a statement insisting that training did ‘not in any way endorse or encourage the unnecessary withholding of any material relevant to a case’. ‘It is, however, right that in cases involving sensitive unused material, such as details of an informant, that this is not automatically shared with the defence,’ said the body’s lead for criminal justice, chief constable Nick Ephgrave. ‘This is entirely in line with legislation and national guidelines and is well understood by defence and prosecution alike.’

Ephgrave added that the police recognised that investigators needed ‘more effective, consistent training and advice so they have absolute clarity about the disclosure process – and this is central to the improvement plan we have put into action with the Crown Prosecution Service (CPS) and College of Policing.’

Suzanne Gower, managing director of the CCA, said that the statement missed the point in two ways. ‘First, it ignores the joint inspectorates’ finding last year that national disclosure training was so inadequate that individual police forces were forced to arrange their own training, some of which “was subsequently shown to be wrong”,’ she said.

Secondly, Gower said that the NPCC ‘confuses legitimate use of the sensitive unused material schedule with what the documents actually revealed: namely, certain police officers incorrectly listing material on the schedule despite it not being sensitive, in an apparent bid to make sure the defence cannot see it or even request it.’

The CCA is challenging the decision by the CPS Inspectorate to withhold the identity of the police force where (it argues) officers might have been ‘trained to unlawfully withhold evidence’. The charity argues that the public interest ‘lies in favour of disclosure’.

‘Disclosure failings can and have led both to wrongful convictions of the innocent and collapsed trials which deny justice to victims. It is therefore vital that the public – and in particular victims of miscarriages of justice and victims of crime – be allowed to know at which police force officers have apparently been trained to wrongly withhold evidence from the defence.’

‘Abysmal’, ‘pitiful’ and ‘getting worse’
The ability of the police to deal with disclosure was described as ‘abysmal’, ‘pitiful’ and ‘getting worse’, according to the notes from one prosecutor focus group. ‘There is a real lack of understanding by police officers of disclosure and especially the relevancy test and by extension what needs to be revealed,’ it said. ‘This is a long-standing issue.’

There was ‘sympathy for officers and a realisation that they are under pressure’, another group noted. ‘It is felt that senior police management does not factor enough time for officers to be able to deal with a case following charge. Time spent on proper disclosure is a big part of this.’

There were notes from some 14 police focus groups. The identity of all forces were withheld. According to one: ‘Officers often fail to consider material which may assist the defence and do not feel confident in relation to disclosure. There is a poor relationship between police and CPS underlined by a lack of communication and trust. Detectives feel that there is poor communication with lawyers. It is very difficult to speak directly with them to discuss the case and they never received feedback on how a case is going.’

Another focus group comprising officers dealing ‘entirely with disclosure in serious and complex cases’ claimed that the CPS was ‘totally overworked’ and did ‘not have sufficient number of lawyers’ to deal with the workload.

Suzanne Gower, of the CCA, said that the documents showed ‘why responsibility for providing full and fair disclosure must be taken out of the hands of police and prosecutors’. ‘The truth is they see themselves first and foremost as adversaries to the defence and, in some cases, deliberately withhold exculpatory evidence. It is unrealistic to expect this mindset to change, which is why we are calling for a new independent disclosure agency consisting of legally-trained staff to take charge of the disclosure process,’ she said.

Prosecutors were invited to respond to the following question: ‘How confident are you in dealing with sensitive material; and are you clear about your responsibilities and about how to deal with issues surrounding sensitive material when they arise?’ Answers included the following:

‘The police are not trained properly and do not think…’

‘The average CID officer does not understand disclosure and has little or no training… . Too often disclosure is an afterthought by the police and they do not enquire sufficiently.’

‘Police tend to underestimate the importance of disclosure. That defence tend to exaggerate the importance of disclosure with the intention of (i) diverting prosecution (and police) time; and (ii) seeking a reason to justify an abuse of process argument or otherwise exclude evidence.’

‘Training of police officers is vital; officers frequently tell us that they feel out of the depths dealing with such issues and some simply do a bad job at it. On the CPS side, more appreciation has to be made that disclosure takes time and should be dealt with not as a matter of routine. There is too much sense of ‘get it done’ and mark the judge’s order as fulfilled for the sake of statistics.’