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31 Jul 2017

Disclosure Uncovered

For a little known government body, HM Crown Prosecution Service Inspectorate (HMCPSI) is hitting the headlines in a big way. Its joint report with the Her Majesty’s Inspectorate of Constabulary, Making it fair: The disclosure of unused material in volume Crown Court cases (‘the report’), severely criticises both prosecutors and police over disclosure failings in a representative sample of ordinary criminal cases. These were not high profile cases, but rather run of the mill criminal cases where the public would expect that justice was routinely done as it should be and that there was no reason to think that trials were in any way unfair. Strikingly, the inspectors criticise police officers for not bothering to describe unused material properly on schedules and prosecutors for allowing this practice and failing to carry out ongoing disclosure.[1]  However, despite the deserved criticism and an appropriate focus on this important issue, the report’s conclusions are severely limited and unlikely to achieve anything of value.

Credit is undoubtedly due to the Inspectorate for highlighting the issue of disclosure in the Crown Court. After all, there can be few solicitors unscarred by completely unnecessary battles over disclosure. Nor will there be many barristers who have not burned with frustration at the dearth of information disclosed by their opponents. For the Inspectorates to focus on this perennial problem will therefore be welcomed. The report brings back the spectre of the worst miscarriages of justice of the 1970’s, 80’s and early 90’s, which led to the Criminal Procedure and Investigations Act 1996 and the creation of the Criminal Cases Review Commission.

Also welcome is the depth of the report, which examines 146 cases (56 where disclosure caused the case to collapse, 90 randomly selected).[2]  Moreover, it is quite clear from the text of the report that each of these matters were thoroughly reviewed. See, for example, the careful investigation of failures to complete a DRS in a domestic violence case.[3] No one could accuse the Inspectors of falling into the same trap as those they were investigating.

It is here, however, that the praise must end. The report’s actual recommendations, supposedly drawn from this warts-and-all look at the disclosure process, are borderline risible. Having identified various failings of both police and the CPS, paragraph 1.4 of the report attempts to identify ways in which things might be improved. Unfortunately, its language and approach is reminiscent more of a sermon than a policy. One telling sentence reads:

“Equally, there needs to be a greater level of importance given to disclosure by those in key strategic roles in both agencies, especially for non-complex cases which form the majority of cases going to court.”

What does this mean? The aim is simple, but it is difficult to actually pin down what is suggested. Should the holders of these “key strategic roles” (whatever they are) devote more resources to disclosure? Or is this injunction aimed merely at getting the congregation to pray harder for better disclosure? Another example of this somewhat vague approach is the call for a:

“cultural shift that approaches the concept of disclosure differently, that sees it as key to the prosecution process where both agencies add value, rather than an administrative function.”

Apart from the use of neo-marketing phraseology (we have moved from the pulpit to the press-release), this statement betrays a worrying lack of understanding of reality. Prosecutors have not, as the report implies, made some principled decision that disclosure is merely administrative and beneath their notice. Instead, they are forced by lack of resources and targets to downgrade what they know to be an important exercise. Clarion calls to change the “culture” will be little more comforting than the final tunes of the Titanic’s band.

The critical reader, on finishing the report’s introduction, might hope that the next section – Recommendations – would go some way to ameliorate the problems thus far encountered. Perish the thought. The nine recommendations break down into two groups – unsophisticated requirements to ‘do better’ and initiatives highly unlikely to have any meaningful impact on the ground. The first category is epitomised by recommendation two which reads:

“Within six months the CPS should comply with the Attorney General’s Guidelines on Disclosure requirement [sic] and ensure that every defence statement is reviewed by the allocated prosecutor prior to sending to the police and that prompt guidance is given to the police on what further actions should be taken or material provided”

The authors of the report could almost have written “do better on disclosure” and saved themselves 48 valuable words. The Guidance referred to is already four years old and is, presumably, already known to the CPS. Simply reiterating in 2017 that it should be followed is unlikely to produce greater compliance than in 2014, 2015 or 2016.

An example of the second group of recommendations – initiatives worthy of a spin-doctor’s “blue-sky thinking” – is number seven:

“Within six months the CPS should provide a system of information sharing between the Areas and Headquarters that enables the effective analysis of Area performance on disclosure.”

It seems almost facile to point out that a) there is nothing stopping prosecutors talking to each other whenever they wish to and b) there is no point in reminding them of this if they don’t have time to pick up the phone.

The most worrying feature of these recommendations is that they fail to pay heed the evidence contained in the report itself. Paragraph 8.5 relates that:

“the reviewing prosecutors that we spoke to, claimed that although they knew it was a requirement to complete the DRS, they lacked the time to do so and found the system cumbersome. One prosecutor stated in response to our survey that they considered that the “DRS is a luxury”.”

The prosecutor quoted here must be commended not only for their honesty, but for pointing to what would become the elephant in the report – resources. All the cultural shifts and disclosure champions one can imagine pale into insignificance beside the need for prosecutors and police officers to be given the time they need to do their job. Lawyers from both within the CPS and in private practice will be able to attest to countless occasions when prosecutors made mistakes (whether relating to disclosure or not) because there simply wasn’t the time to do things properly. Inevitably, since time (especially for lawyers) is money – a need for greater time is concomitant with a need for increases in CPS budgets.

However obvious this may seem to the observer of the criminal justice system, the report’s conclusions simply fail to address issues of resources in any meaningful way. A desultory attempt to deflect such questions is made in paragraph 9.2 which blithely dismisses the views of both police and CPS staff that mistakes in disclosure were mainly caused by lack of resources via the disingenuous contention that the problems precede “recent budget reductions”. Apart from being insulting to the intelligence and knowledge of those at the coal face, this confident assertion is simply irrelevant. Underfunding of the CPS is not a new phenomenon, engendered by recent cuts – it goes back much further. Thus, the fact that disclosure problems pre-date recent cuts is neither here nor there.

Law is famous for its hypothetical figures – the reasonable person has been a constant companion of lawyers for decades and features in many important legal tests on which cases are decided. It therefore seems fitting to judge this report through the eyes of a “reasonable prosecutor”. Having perused the report, such an individual might well conclude that the recommendations are pitched at just the right level to make it look like something is being done, without actually constituting any kind of workable solution. Furthermore, our putative lawyer might feel somewhat bitter about being criticised for failings which are primarily a result of low budgets and not within his or her capacity to change.

If our hero thought a little further they might even conclude that the report’s move from careful research to opaque and flawed analysis is actually quite worrying. How can an official inspectorate justify replacing the disinfectant of sunlight with the shade of bureaucratic obfuscation in the name of avoiding questions of resource? Such an attitude is surely dangerous to good governance.

Overall, this report would not be out of place in Yes Minister. It proposes little, solves nothing and avoids the state having to tackle the real resource-based source of the problems. In accordance with the maxim of Sir Arnold (Sir Humphrey’s mentor) Making it fair: The disclosure of unused material in volume Crown Court cases puts the most radical idea in the title – it does less harm there than in the text.

[1] See paragraph 1.3 of the Report.

[2] See paragraph 2.10 of the Report.

[3] See paragraph 8.4 of the Report.

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