Police need to ‘get a grip’ on disclosure, watchdog tells MPs

MPs were told that a failure to disclose was ‘the single most frequent cause’ of miscarriages of justice. Earlier this week the  House of Commons’ justice committee heard from the Crown Prosecution Service Inspectorate and Her Majesty’s Inspectorate of Constabulary about the ‘fundamental lack of understanding’ about the importance of disclosure shard by police and prosecutors.

In July last year, two watchdog bodies found that the quality of disclosure by the police was ‘poor’ in more than four out of ten of cases it looked and, in relation to the CPS handling, poor in one in three cases. The inspectorates examined 146 Crown Court files. Ninety of these were randomly selected, and fifty-six were identified because of a poor outcome as a direct result of problems with disclosure.

Since the damning  joint report there had been a series of cases collapsing due to failures in the timely disclosure of used and unused evidence in criminal trials, notably Liam Allan. ‘There have been significant concerns that disclosure issues, not just in the Allan case but in many others, have resulted in inappropriate charges, unnecessary delays in court proceedings and potential miscarriages of justice,’ noted Bob Neill, chair of the justice committee. ‘This raises serious and profound questions about the handling of cases by the Police and CPS.’

Neill asked Kevin McGinty, chief Inspector of the Crown Prosecution Inspectorate, about a survey by the Criminal Law Solicitors Association that found 97% of defence lawyers had encountered disclosure errors in the last 12 months. ‘It doesn’t surprise me,’ he replied. He quoted Criminal Cases Review Commission from the joint inspectorate report:

‘In the past 12 months this Commission has continued to see a steady stream of miscarriages. The single most frequent cause continues to be failure to disclose to the defence information which could have assisted the accused.’

‘That is the most serious aspect of the disclosure problem,’ McGinty said. ‘The problem itself is much broader than that. Late disclosure causes all sorts of difficulties in the criminal justice system. It wastes time and resources and means cases are delayed.  The victims do not see justice.  It is a waste of everyone’s time.  The really serious risk is miscarriages of justice.’

When asked if he detected a sense of urgency on the part of the CPS and senior police officers in the wake of their report, he replied: ‘I hope so, but history shows they haven’t in the past.’ He pointed out that since their last report in 2008 ‘we have had Attorney General’s guidelines, two reviews by Lord Justice Gross and Court of Appeal cases that have gone horribly wrong where prosecution and police have been severely criticised. And yet we still have this problem.’

‘It will only change when every single police officer involved in a case and every single prosecutor involved in preparing a prosecution bears in mind that disclosure is an integral part of the process. That is not happening.’
Kevin McGinty

MPs raised concerns about the quality of the ‘MG6C’ forms sent by the police to prosecutors recording the nature of material held. Wendy Williams, Inspector of HM Inspectorate of Constabulary and Fire & Rescue Services, told the committee that only 19% of cases were fully compliant and 22% were considered to be wholly inadequate. ‘If we challenged every single bad MG6 that came from the police, the system would grind to a halt,’ McGinty said.

McGinty said the police need to ‘get a grip on the investigative process before someone is charged – then people will not end up in custody when they shouldn’t.’ Alex Chalk MP cited the example of someone who spent six months on remand for a trial where it emerged following a proper disclosure procedure that no offence was committed by the person. ‘That is a miscarriage of justice, isn’t it?’ he asked Wendy Williams.

‘It certainly should not be happening,’ she replied. ‘Disclosure should be considered at charge stage not just at trial stage. That is the very first recommendation that we made.

Wendy Williams said there was a ‘fundamental lack of understanding about the importance of disclosure’. ‘Prosecutors and police officers should have due regard for information which points away from the defendant is well as information that points towards them,’ she said.

What the watchdogs found:

‘The inspection found that police scheduling (the process of recording details of both sensitive and non-sensitive material) is routinely poor, while revelation by the police to the prosecutor of material that may undermine the prosecution case or assist the defence case is rare.
Prosecutors fail to challenge poor quality schedules and in turn provide little or no input to the police. Neither party is managing sensitive material effectively and prosecutors are failing to manage ongoing disclosure. To compound matters, the auditing process surrounding disclosure decision-making falls far below any acceptable standard of performance. The failure to grip disclosure issues early often leads to chaotic scenes later outside the courtroom, where last minute and often unauthorised disclosure between counsel, unnecessary adjournments and – ultimately – discontinued cases, are common occurrences. This is likely to reflect badly on the criminal justice system in the eyes of victims and witnesses.’
From Making it Fair, July 2017 by the Crown Prosecution Service Inspectorate and Her Majesty’s Inspectorate of Constabulary