Chaos in criminal disclosure

On 15 December 2017, the papers were filled with articles explaining the collapse of the rape case in which a student, Liam Allan, was a defendant.  Police officers either did not see, did not appreciate the significance of, or deliberately withheld text messages sent from the complainant that undermined her evidence and were therefore exculpatory.  It was only when those text messages were read by the independent barrister briefed to prosecute, that he decided that the prosecution should be halted.   The case made headlines because Mr Allan took the decision to publicise this potentially devastating miscarriage of justice.

There followed a sting of further similar cases collapsing, an announcement by the CPS of an urgent review of all serious sex and rape cases and the publication of the National Disclosure Improvement Plan by the police and CPS.  The public, on reading these headlines, may conclude that that these are terrible but perhaps isolated examples of a recent crisis in the investigation and disclosure procedures specific to rape cases. However, many, if not all, criminal defence practitioners will have similar stories, some more egregious, some more mundane, of an oversight or decision that led to material being withheld which might help the defendant be acquitted.

The key issue that has emerged in the recent sex cases is management of electronically stored data. Almost every suspect in a criminal investigation has one or more phones or other electronic device, as do many important witnesses.  Each device may contain thousands of critical messages, emails, documents, photos and geographic data.

The issue has been highlighted by the recent collapsed sexual offence cases. Some of the problems in those cases arise because the case pivots on the credibility of one person’s word against another’s.  The ability to corroborate or undermine the defendant or complainant’s case by their own contemporaneous messages is crucial. However, the problem is also acute in complex fraud cases where offending may take place over a long period of time and involve multiple data custodians. In January, David Clark, the police officer who heads the UK’s anti-fraud response, claimed that an overload of documentary evidence was setting investigations back.

The problems start at the very outset of an investigation before disclosure to the defence is considered.  Digital devices, including mobile phones, must be forensically imaged before inspection, in order to avoid any of the data being altered by the reviewing officer.  There are insufficient resources nationwide to perform this function, causing delays in the imaging process. In cases where electronic devices are seized suspects are told that the images will be available for the investigator to review in anything from a few weeks to six or more months.  This is as unwelcome to the investigator as it is to the suspect.

Once proceedings are underway, the prosecution’s duty to disclose material which they have collected in the course of their investigation but which they will not rely on as evidence (known as unused material), is set out in the Criminal Procedure and Investigations Act 1996 (CPIA).  The prosecutor must disclose to the defendant any material “which might reasonably be considered capable of undermining the case for the prosecution … or of assisting the case for the accused…”. This test has been a perpetual subject of review and attempted reform.  In September 2011, Gross LJ published a Review of Disclosure in Criminal Proceedings, the conclusions of which led, in 2013, to the publication of a new Attorney General’s Guidelines and a new Judicial Protocol on Disclosure.

In respect of digital material specifically, investigators and prosecutors are guided by the Attorney General’s 2011 Supplementary Guidelines on Digitally Stored Material, which sets out how the task of meaningfully scheduling the contents of a digital device should be managed. A schedule that itemises a mobile phone is as useless as the description of a ‘file of papers.’ A strategy is needed by which useful data from electronic devices can be located, reviewed and shared. The Supplementary Guidelines proposes, by way of example, that an investigator could use search terms, which should then be shared with the defendant.  In practice, this guidance is inconsistently applied and there is no uniformity between police areas and investigative agencies. In any event, the guidance focuses on fair disclosure rather than a thorough investigation.

In R v R [2015] EWCA, the Court of Appeal examined the issue of electronic disclosure in a large scale tax fraud prosecution. In this case, 77 electronic devices were seized, resulting in the retention of 7 terabytes (approximately 600 million pages) of data. There was no prospect that their contents could ever reasonably be reviewed. The defence and prosecution had spent the best part of four years grappling with the most appropriate way to achieve fair disclosure before the case was stayed by the trial judge in 2015. The Court of Appeal delivered a Practice Note judgement, in which Leveson P surveyed the plethora of guidance and case law on the issue and drew the following conclusions:

• The prosecution is and must be in the driving seat at the stage of initial disclosure;
• The prosecution must then encourage dialogue and prompt engagement with the defence;
• The law is prescriptive of the result, not the method;
• The process of disclosure should be subject to robust case management by the judge, utilising the full range of case management powers; and
• Flexibility is critical.

The essence of the conclusions drawn by the Court was that there cannot be a ‘one size fits all’ method of approaching the disclosure task in each case: “The application of these principles will keep the case within the statutory scheme, hold the parties to their duties thereunder and ensure that the proceedings are dealt with fairly, efficiently and expeditiously, in accordance with the overriding objective enshrined in the Rules.” Per Leveson P  R v R 1883 Para 51.

The special challenge of ensuring that the system of disclosure is fair and proportionate when liberty is at stake cannot be underestimated. Different types of case from rape to fraud, and different types of data from text messages to spreadsheets, will require different methods of interrogation and review.  If the legislative scheme under the CPIA is to remain the standard by which disclosure is judged, changes in practice are required.

First, there must be an increase in transparency at all stages of the investigative and disclosure process. The Court of Appeal in R v R underlined the need for defence engagement. The defendant must be in a position to understand what has been searched for and how it has been searched for so that they are in a position to make proposals for meaningful suggestions for searches that will assist their defence.  Such engagement can only take place with transparency and a clear understanding of what approach the investigator and prosecutor have taken.

Secondly, investigators being provided with sufficient resources to conduct their task efficiently, effectively and speedily. The capabilities of technology designed to review electronic data must evolve as quickly as the devices on which that data is stored.  There is no alternative, but continued investment in order to keep imaging and reviewing software up to date with the market leading mobile phones and computers.

Thirdly, if the system is to remain flexible and not prescriptive, its success or failure rests on the integrity of those within it. Institutional independence between investigator and prosecutor and the use of independent Counsel can be an important check.  There is a risk, borne out by a recent review of the HM Inspectorate of Constabulary in July 2017[1] and the cases described above, that if disclosure is not approached with sufficient independence and efficiency, many more miscarriages of justice, such as that which Mr Allan narrowly avoided, may come to pass.

[1] https://www.justiceinspectorates.gov.uk/hmicfrs/publications/making-it-fair-disclosure-of-unused-material-in-crown-court-cases/

This article was originally published in Fraud Intelligence and can be accessed here, behind a paywall.