Solicitor Marlon Grossman examines why the criminal disclosure process is failing and points to various methods to remedy this, in order to restore the process.

 

Marlon’s article was published in The Times, 31 January 2019, which can be found here.

A longer version of Marlon’s article have been published in the following publications:

Law360 – 14 February 2019

CrimeLine – 5 March 2019 

The Barrister Magazine – April 2019 Print Issue

Lawyer Monthly – 1 April 2019 

The Barrister Magazine – 30 May 2019 Online Version 

There was never a golden age of disclosure, when justice was done to all. Prosecutors’ disclosure obligations arise from the fundamental right to a fair trial. Yet eight centuries after the Magna Carta, it is widely acknowledged that our criminal disclosure process is failing.

Last week, the Attorney General, Geoffrey Cox QC, appeared before the Commons Justice Committee and theatrically vowed to “crack the whip” to fix the disclosure system. The oratory of the Attorney General appears sincere. We must welcome his making this one of his central priorities.

Disclosure is a fundamentally straightforward proposition. The Attorney General’s own guidelines state that prosecutors must disclose material which “might reasonably be considered capable of undermining the prosecution case or assisting the case for accused”. Vast texts and manuals explain the nuances to prosecutors and investigators. Seemingly, this has been insufficient.

A 2017 CPS inspectorate report found that prosecutors had fully complied with their disclosure duties in just 56.9% of cases inspected. Amazingly, this represented an improvement on the previous such report, where disclosure duties were complied with in only 34.8% of cases.

There is often a failure to understand and apply the rules, and a lack of communication between investigators and prosecutors. At best, evidence that ought to be disclosed has inadvertently fallen through the cracks – being missed, dismissed or forgotten. At worst, material is deliberately withheld.

The disclosure process asks the police and prosecutors to shoot themselves in the foot, by assisting the defence. They should be proud to do so. For, in so doing, they are upholding faith in the justice system itself, and helping ensure that the innocent are not wrongfully convicted. Prosecuting lawyers are often rightly proud to uphold their ethical duties to the court, and to the administration of justice.

We have seen the consequences when failures occur. Recent examples include two HMRC cases, which had to be abandoned mid-trial once vast amounts of highly relevant documents emerged, which had not been properly recorded, let alone disclosed. A recent conspiracy to murder case went to the Court of Appeal, and on to a second trial. The case was ultimately abandoned when crucial evidence as to the locations of the defendants was revealed, even though police had given assurances such evidence did not exist. The financial cost of such cases runs in to the millions. The costs to individuals affected – and to faith in the justice system – are far less easy to calculate.

The blame does not lie with any particular service or individual. Police and prosecutors often find themselves overworked, overlooked and under-resourced, having suffered cuts to funding and personnel, including their most experienced staff.

The remedies include greater prosecution involvement from the outset. All too often, prosecution lawyers receive evidence at the last moment. Evidence that passes the test for disclosure must be identified far earlier in the process. The original investigators must fully understand the disclosure process. Investigators are there to independently investigate and follow the evidence. They should cherish their crucial function, and be confident to shine the light of truth on their cases. Officers can then feel able to confidently give lawyers assurances that they have fully complied with their disclosure duties.

To give weight to such assurances, disclosure officers in criminal cases could be required to sign a sworn witness statement stating that their disclosure duties have been fully complied with. Introducing such a requirement would back with action the recent powerful words of the Attorney General and his demands for the restoration of responsibility, accountability and credibility. Any future failings would then surely result in the infamous whip being cracked.

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