Disclosure, in the context of criminal proceedings, has been described as “the process in a criminal case by which someone charged with a crime is provided with copies of, or access to, material from the investigation that it capable of undermining the prosecution vase against them and/or assisting their defence” . This process is central to ensuring that the investigative process and subsequent trial are conducted fairly, and is ongoing throughout.
The Attorney General, in his 2018 Review of disclosure , stated that:
“The central importance of the duty of disclosure must be seen from the twin perspective of fairness to the accused and as a vital guarantor of a secure conviction. Cases that collapse or are stayed and convictions that are quashed because of serious deficiencies in disclosure are fair neither to the complainant and the defendant nor to the public and they undermine confidence in the administration of criminal justice.”
It has long been recognised in caselaw that “miscarriages of justice may occur where [material evidence] is withheld from disclosure” , and the Attorney General has stated that “[t]he “golden rule” is that fairness requires full disclosure should be made of all material held by the prosecution that weakens its case or strengthens the defence”
There are, historically, many convictions where defective disclosure was subsequently seen to result in miscarriages of justice (the Guildford Four , Stefan Kizsko and Judith Ward being notable examples). While enquiries have been commissioned , and statute and procedure amended in light of these cases, there have been notable recent cases where trials have been abandoned due to defective disclosure, for example the cases of Liam Allan and Isaac Itiary . Convictions have also been overturned on appeal due to problems with the disclosure process, for example the cases of Sam Hallam and Victor Nealon , where crucial evidence was not disclosed in relation to identification and DNA. It is also noted that fresh appeals on the grounds of defects in the disclosure process continue to be made, including the case of R v Joof As such, legitimate concerns have been raised that the current regime may not fully assuage the risks of miscarriages of justice.
In this report, I intend to outline the disclosure process, from investigative to post-conviction stages, then address the ways practitioners acting both for prosecution and defence in criminal cases can ensure that this process is effective, efficient and in the interests of justice. Consideration will be given to the impact of ineffective or failed disclosure, and the role of the criminal appeals process and the Criminal Cases Review Commission (CCRC) will be discussed.
PRE-TRIAL DISCLOSURE
The statutory basis
The statutory basis for pre-trial disclosure is contained within the Criminal Procedure and Investigations Act 1996 (CPIA) and the associated Code of Practice. The Act provides for a three-stage process with duties for both prosecution and defence, with the aim of clearly defining the obligations of both parties in relation to the disclosure of evidence. This Act has had a number of implications in relation to the obligations imposed in respect of disclosure pre-trial. These are designed to ensure efficiency of the disclosure process, regulate the standard and procedures in criminal investigations, and provide safeguards against wrongful convictions – non-disclosure having traditionally been a consistent theme in such. Additionally, the legislation ensures compatibility with the provisions of Article 6 of European Convention on Human Rights (ECHR) – the right to a fair trial — not least because it seeks to mitigate the inequality of arms which exists between the prosecution and defence arising from disparities in their respective powers and resources.
CPIA’s three-stage disclosure process, is as follows:
1. Primary disclosure by the prosecution;
2. Submission of the defence statement; and
3. Re-examination of unused material in light of the defence statement by the prosecution.
Primary disclosure
The requirements for primary disclosure in criminal proceedings are set out in s3(1) of CPIA 1996 . The prosecution are required to disclose any previously undisclosed material to the defence which may, in the opinion of the prosecutor, undermine the prosecution case. Alternatively, should no such material exist, a statement to that effect should be provided to the defence. This provides a means of ensuring fairness to the defendant and overcoming any real, or perceived, inequality of arms between the parties. Despite the fact that the legislation was enacted in the aftermath of a number of notable disclosure related miscarriages of justice, it actually represents a restriction on the previous common law regime, which allowed the defence access to all potentially relevant prosecution material (subject to matters of public interest immunity) . The principles of public interest immunity (PII) are set out in the Attorney General’s Guidelines , and are applicable under the CPIA regime.
Duties of prosecuting practitioners
It is clear from the requirements of the CPIA and associated Code of Practice that this disclosure stage must be driven by the prosecution in order to avoid the risk of a miscarriage of justice . There is an onus on parties working for the prosecution to maintain clear and effective communication with the defence, often in the form of a Disclosure Management Document, in order to clearly define the procedure followed during the initial disclosure stage. Additionally, prosecutors are strongly advised to engage in dialogue with the defence at this early stage, both in order to encourage prompt engagement of both parties and to assist the court in fulfilling its duty to further the overriding objective . In practice, many indicative disclosure decisions may be made by a police, in the guise of an appointed disclosure officer. However, this does not abrogate the duties on prosecution lawyers, and in order to fulfil their CPIA duties they may be required to adopt a questioning and/or critical relationship in their dealings with police.
The test the prosecution is expected to apply is one of materiality, as set out in Reg. v. Melvin and affirmed by Lord Taylor in R v Keane :
“I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution: (1) to be relevant or possibly relevant to an issue in the case; (2) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (3) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (1) or (2).”
It may appear, from this, that the requirements on prosecuting practitioners are potentially onerous. This may be particularly so in serious or complex cases, which may generate a large volume of information, such as mobile phone records, surveillance logs or computer analysis documents. In order to mitigate this to some degree, courts have approved the practice of using keyword or sample searches in the review of extensive quantities of data (R v R and R v Pearson ). Similar such guidance is provided by the Attorney General’s Guidelines .
In undertaking such searches, it is incumbent on the prosecutor to cooperate with the defence in order to achieve clarity of purpose, agree search parameters and understand the nature of the material they are looking for. A failure by a prosecutor to either engage with the defence or to work collaboratively may result in criticism and further direction from the trial judge or, at worst, a submission of abuse of process from the defence . A practitioner may also be subject to the scrutiny of professional regulation, with the potential for disciplinary action if found to have breached professional standards conduct.
Prosecutors must also be mindful of the Attorney General’s Guidelines in relation to material which may be subject to public interest immunity . This can relate to material which is considered to be highly sensitive, such as that relating to informant identities and covert investigative techniques. Any such material, if deemed relevant, must be highlighted by investigating officers to the prosecutor and the prosecution advocate, and consideration given to whether it could be provided in an edited, summarised or redacted form . If this is not deemed possible or appropriate, an application may be made to the court under CPIA 1996 s3(6) for the material to be withheld from disclosure in the public interest. At this juncture, both the prosecutor and the court should have due regard to the provisions set out in R v H & C at paragraph 36 in order to ensure that consideration of this material in the absence of the defendant is compliant with ECHR Article 6.
Prosecutors must then draw up a schedule of previously undisclosed material which may have the potential to undermine the prosecution case and submit this to the defence. This material is not limited to that forming the basis of the prosecution case, but also to any other material obtained during the initial pre-trial investigation. This does not equate to the prosecution simply revealing all material in its possession, as care must be taken by prosecutors to ensure that disclosure is not impeded by a flawed investigation. Consequently, a prosecutor may need to direct certain further investigations to be undertaken if there are apparent gaps in the evidence, and neither police nor prosecutors can decline to do so simply in order to avoid the possibility of such investigations producing evidence that may be detrimental to the prosecution case.
It is important to highlight that this arm of the pre-trial disclosure process does not end at the provision of the disclosure schedule to the defence. Primary disclosure is an ongoing obligation of prosecutors and the police, including a continuing duty to reassess the status of any unused material, and police must alert the CPS to any new investigative or evidential developments. Consequently, it is incumbent on prosecutors to maintain a firm grasp of the factual matrix of a case, including the relative strengths and weaknesses in the evidence.
Duties of the defence
In contrast, the duties of the defence lawyer are relatively modest during the primary disclosure stage. This is due to the fact that it remains for the prosecution to prove its case, and to advise a prospective defendant of the evidence against them. It is not for the defence to persuade the prosecution of their innocence. As previously stated, it is considered good practice for defence practitioners to engage with investigators and prosecutors in order to agree searching strategies for high volumes of digitally stored data. Co-operation reduces the risk of potentially crucial evidence being missed by the use of incorrect keywords or erroneous data sampling, and therefore a collaborative approach could be said to amount to acting in a client’s best interests. Additionally, a failure of defence practitioners to engage with collaboration requests may be seen to be contrary to the duty of all parties to the court and the furthering of the overriding objective – principally “that criminal cases be dealt with justly” and ensuring fairness to all parties .
Compulsory disclosure by the accused
Following initial disclosure by the prosecution, the onus turns to the defence as set out in ss 5 and 6 of CPIA. The accused must submit a defence statement to the court and the prosecutor, the contents of which are set out in s6A. The proposed defence must be specified “with particularity” and should set out any positive case on which the accused intends to rely. This includes the particulars of any alibi relied on (including the details of any alibi witnesses) as set out in s6A(2). Should the accused have no positive case, then this should be recorded within the defence statement , which should state that the defendant does not admit the offence and calls upon the Crown to prove the charge. This requirement is not compulsory for cases which are tried summarily.
The requirement to produce a defence statement was first introduced by CPIA as part of a wider procedural trend to encourage and secure participation and involvement of both the defendant and defence practitioners. Historically, there had been no requirement to submit any indication of the proposed defence prior to trial, which led to what became known as “ambush” defences where points of law or evidence which the defence intended to rely upon were brought forward only after the conclusion of the prosecution case, often accompanied by a submission of “no case to answer”. It was felt that imposing disclosure obligations upon the accused and defence practitioners may lead to a more managerialist approach to criminal procedure, securing the early, active participation of the defence and allowing for enhanced efficiency of proceedings through the identification of issues of dispute upon which the trial would be focussed. The case management provisions imposed by the Criminal Procedure Rules 2015 similarly provide for the active participation of the defence from an earlier stage. It may be concluded the ultimate aim of such legislation and associated guidance is to move the criminal process towards a more participatory model than the previous adversarial system , despite the fact-finding tribunal remaining adversarial in nature.
Concerns have been raised that such a cultural shift may impact upon fair trial rights the accused may reasonably be expected to retain, namely the presumption of innocence, burden of proof, and privilege against self-incrimination – all aspects of Article 6 ECHR. The Royal Commission on Criminal Justice (the Runciman Commission), however, concluded that such requirements for disclosure do not infringe these rights .
Defence practitioners should ensure that any defence statement, made with the agreement and full participation of the accused, is well-particularised and sets out in detail the arguments which the accused intends to rely on at trial. This obligation is enforced through s11 of the CPIA, which sets out the sanctions which may be imposed should the defence fail to submit a statement, disclose matters late in proceedings or later depart from the submitted statement. Such departures from accepted procedure may result in adverse comment or adverse inferences being drawn at trial. Such inferences may have the potential to impact upon the decision of the jury at trial. Additionally, a practitioner who does not approach their duties with regard to defence statements with due care, or fails to properly explain to their client the nature and importance of a defence statement, may again be subject to regulatory sanction, and possibly even a claim for professional negligence.
Re-examination of unused material
Following the submission of the defence statement, the third aspect of pre-trial disclosure is initiated, namely a re-examination of unused material by the prosecution. Any previously undisclosed material which may be reasonably expected to assist the defence case (as laid out in the defence statement) should be disclosed to the accused or, alternatively, a statement should be issued to the effect that there is no such material available for disclosure .
Duties of the prosecutor
The prosecuting lawyer bears responsibility, as in primary disclosure, for ensuring that secondary disclosure is appropriately effected. It is important for practitioners to note that the test applied for such disclosure is somewhat more prescriptive than the subjective test applied at the primary disclosure stage, and that there is, therefore, less latitude for discretion on the part of prosecutors following the disclosure of the defence statement. Prosecutors are, in effect, required to view the evidence through the lens of the defence, and not merely whether or to what extent in might undermine the prosecution case.
It is also incumbent upon the prosecutor to carefully scrutinise such material and, where necessary, make appropriate applications to the court for non-disclosure in the public interest .
Duties of the defence
While the primary responsibility for disclosure at this stage rests with the prosecutor, it may be considered good practice for the defence to re-examine the schedule of unused material previously issued at the primary disclosure juncture in light of the arguments put forward in the defence statement. This may identify evidence which may require review by the prosecution and, in line with the duty to assist the court and further the overriding objective , assist in the efficient management of the case. There may be evidential matters which are more apparent to the defence from the schedule and which, if not disclosed, may be seriously prejudicial to the accused and, at worst, result in a conviction which is potentially unsafe. A solicitor who is negligent in this duty risks being found in breach of Outcome (1.2) of the SRA Code of Conduct (2011), as this may indicate a failure to provide a service which protects the interest of the client, subject to the proper administration of justice.
In addition, s8 of CPIA allows the accused and their defence the opportunity, should prosecutors not be open to such requests, to apply to the court for an order requiring such material to be disclosed (unless it is concluded not to be in the public interest to do so).
Ongoing duties of disclosure
Section 7A of CPIA places an ongoing duty on the prosecutor to keep previously undisclosed material under review and, where it is reasonably considered that such material may reasonably be considered capable of undermining the prosecution case, this material should be disclosed as soon as is reasonably practicable.
In addition, material previously held to be non-disclosable in the public interest should be kept under review and, if it is determined that at any time the public interest is determined not to apply, the court has the power to unilaterally order disclosure. Similarly, a prosecutor will need to consider whether any sensitive material has become relevant in light of the terms of the defence statement and, if so, whether a further PII application should be made.
While there is no ongoing duty of disclosure placed on the defence, it may be considered good practice to monitor the case and be alive to any changes in the case as the investigation proceeds to trial, comparing these against previously undisclosed material and, if appropriate, making the relevant application to the court for disclosure. Similarly, if the defence practitioner forms the view that material previously held to be non-disclosable in the public interest no longer satisfies the relevant tests, it is considered good practice to make an application to the court for a review of that decision. While this, of course, only relates to a class of PII material that the defence may be aware of – a matter not always the case – they may nonetheless wish to consider making such requests if the case is one where they might reasonably suspect that such material might exist.