29 Sep 2023

Police Must Not Skip Disclosure Duties

Some weeks ago, Sir Mark Rowley, the Metropolitan Police commissioner, appeared on BBC Radio 4’s Today programme and referred to the Met as ‘prosecuting more cases’. He apparently failed to appreciate the role of the police as investigators, following the transfer of the power to prosecute offences to the Crown Prosecution Service as long ago as 1985.

The police investigate crime, follow up on all reasonable lines of inquiry and, where appropriate, refer matters to the CPS for charging decisions. The ‘P’ in CPS, of course, gives the clue that it is they that ‘prosecute’ and not the police.

In what could be considered a further faux pas, during a recent address to the Policy Exchange thinktank, Rowley called for an overhaul of the criminal justice system to end bureaucracy for his officers, saying: ‘The complex legal duties of disclosure and redaction have been pushed to the front end of the system, slowing down justice and creating nugatory work for officers.’ Those who have been the subject of miscarriages of justice would not view compliance with disclosure duties as being ‘nugatory’ work for the police. In fact, one does not have to look too far in the past to find an example of a case where police disclosure failings resulted in a man being wrongly convicted and imprisoned for 17 years before being released and exonerated. The police’s handling of that case is now the subject of an IOPC investigation.

The Attorney General’s Guidelines on Disclosure for investigators, prosecutors and defence practitioners makes clear that ‘proper disclosure of unused material remains a crucial part of a fair trial and is essential to avoiding miscarriages of justice. Disclosure remains one of the most important and complex issues in the criminal justice system, and it is a priority for this government to encourage improvements in disclosure practice in order to ensure the disclosure regime operates effectively, fairly and justly’.

Investigators – which the police undoubtedly are – should ensure that all reasonable lines of inquiry are investigated, whether they point towards or away from a suspect, and that the outcomes of such inquiries are fully documented and disclosed.

The criminal justice system relies on the integrity of investigators to get this process right – without it there can be no fair trial.

This article was published in The Law Society Gazette on the 29th September 2023.


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