Disclosure

Disclosure, or rather the lack of it, has perhaps been the main contributing factor to many miscarriages of justice. Some of these cases - and the ramifications of the Criminal Procedure and Investigations Act (CPIA) - are outlined in the articles reprinted below.

Guardian, 3 March 2000 - Legal 'safeguard' risks injustice
The Times, 25 July 2000 - Joel Bennathan calls for change
Independent, 7 December 1999 - The whole truth and nothing but?
Observer, 14 November 1999 - Prosecution in the dock
An article by Bob Woffinden from the Guardian, 4 May 1999 - 'No, you can't see. It might help your client'
is reproduced on the page about Jong Rhee


Guardian Unlimited
3 March 2000
Legal 'safeguard' risks injustice

By Clare Dyer, Legal Correspondent

Rules passed by parliament to prevent miscarriages of justice are not working, the watchdog on the crown prosecution service reports today.

The 1996 criminal procedure and investigations act, introduced after a series of wrongful convictions which dented public confidence in the justice system, is not living up to parliament's intention, says the CPS inspectorate.

Under the act, the prosecution must disclose to the defence any material which could undermine the prosecution case or be helpful to the defence. In a significant proportion of cases, CPS compliance is "defective in one or more respects".

The findings support claims by criminal lawyers that the system risks creating new miscarriages of justice. The chief inspector, Stephen Wooler, said: "The degree of non-compliance is unacceptable. Our findings do not come as a surprise. They confirm what the director of public prosecutions and criminal practitioners have suspected for some time."

Lawyers claim the system breaches the European convention on human rights because it denies defendants a fair trial, and say challenges could be mounted in the English courts once the human rights act comes into force next October.

David Calvert-Smith, director of public prosecutions, who heads the CPS, said: "I have never made any secret of my concern that the disclosure regime is not working as it should."

He said the report would provide "a further helpful stimulus" to ensure that by October the disclosure regime conformed with article 6 of the European convention on human rights. "We now need a concerted effort by the police, the CPS and the bar to make sure disclosure works properly."

The inspectorate recommends that crown prosecutors should be much more involved in deciding what should be disclosed. At present, police "disclosure officers" draw up lists of information for possible disclosure, and much information never gets to crown prosecutors or prosecuting counsel.

Criminal lawyers argue that the police, who are not legally trained, are not in the best position to decide what material would help the defence case or adversely affect the prosecution's. In several aspects, the regime places responsibilities "on individuals who appear ill-equipped to discharge them", the report concludes.

The inspectorate calls for crown prosecutors to look at much more material themselves, rather than rely on lists compiled by police disclosure officers, and for a bigger role for prosecuting counsel. It recognises that this would mean substantial extra resources for the CPS, and also for the police, who would have to copy far more material for prosecutors.


THE TIMES
25 July 2000
Defendants are severely
disadvantaged by current legislation on evidence.
Joel Bennathan calls for change

Made for miscarriages

The successful appeal by the "M25 Three" has added yet another case to the endless list of convictions rendered unsafe by the failure of police to disclose evidence to the defence. The law has changed since those three men were convicted but not for the better. For the Criminal Procedure and Investigations Act 1996 is an awful and dangerous piece of legislation, but just how bad it is tends to get hidden by its technical nature.

It is actually quite simple. Any police investigation will generate a lot of material such as witness statements, scientific reports, notes of conversations with potential witnesses and so on. The police and the Crown Prosecution Service then decide which bits of that material they will use as prosecution evidence and the rest becomes what is known, unsurprisingly, as "unused material". The point is that although this unused material may not assist the prosecution, it may be of great help to the accused.

The Act introduced a new and in many ways more restrictive scheme for how this material is handled; whereas previously the defence could go and inspect the lot, now in most cases a police officer will decide what will undermine his own case and only then, in theory, pass it on to the accused. The obvious and glaring problems are that police officers lack the experience and motivation to make this scheme work. They lack the experience because they are not trained nor practised in raising doubts about the guilt of those accused of crime, and they lack motivation because they nearly always believe, naturally enough, that the accused is guilty.

There is supposed to be a safety mechanism on all this, as the CPS is meant to supervise the whole process, mainly by inspecting a schedule of all the unused material in the police's possession. Bitter experience has shown that this safety net doesn't work - the CPS, especially in London, simply lacks the time to go and look at the unused material.

The whole mad scheme may seem to be designed to lead to disaster, and that is exactly what it has done. Major trials have collapsed at huge expense, unmeritorious defendants have had their cases dropped when a judge's patience with a failure to disclose has finally run out, while those wrongly accused have, in the cases we know about, come very close to going on trial without knowing about crucial evidence that would secure their acquittal. Surveys of lawyers have provided endless examples of the system going wrong, as has a report by the CPS Inspectorate.

The big worry, of course, are the cases where no one ever finds out about the exculpatory statement lurking at the bottom of a police file; where the accused is convicted, locked up, yet innocent. There is some hope of change. The Government is now well aware of the problems and the Attorney General is considering changing the rules under which the scheme operates. So far, however, all the good intentions have led to lots of public declarations of intent and little concrete progress.

Yet the whole mess could be sorted out in three easy stages, without legislation. First, the CPS needs to be told that it has to inspect the unused material itself, not just glance at the list produced by the police. Second, the CPS needs the extra funds to give it the time to do so. Third, the Government should, in the majority of cases, let defence lawyers go and look at whatever the police have got. This would only be building on good practice where reasonable prosecutors and police frequently say: "Forget the Act, we've got nothing to hide, come and have a look." This Government was not in office when this legislation was passed, nor when the CPS was set up, but they now have the responsibility and the opportunity to sort the whole mess out.

The author is a barrister at Tooks Court and chairs the Society of Labour Lawyers criminal law group


Independent
7 December 1999
The whole truth and nothing but?

Non-disclosure of evidence has led to some 200 wrongful convictions. So what is the Government doing to change this?

By Grania Langdon-Down

Concern over the issue of disclosure in criminal trials is now so great that binding new guidelines for prosecutors are to be published before Christmas.

Government departments, the police and the legal profession will be pressed to respond promptly to the consultation process because the Attorney-General, Lord Williams of Mostyn, wants the finalised guidelines in operation within the first quarter of next year. "We are trying to move as quickly as we can on this," his spokesman said.

Questionnaires by the Law Society and the British Academy of Forensic Sciences have already produced about 200 examples of non-disclosure, with barristers and solicitors warning that there could be serious miscarriages of justice. They listed cases where statements of witnesses who were helpful to the defence were not disclosed and where forensic or medical reports supporting the accused's versions of events were kept from the defence.

Non-disclosures have been at the heart of a series of miscarriages of justice dating back to the Seventies. The police did not tell the defence that Gerry Conlon, one of the Guildford Four, had an alibi in London for the night of the pub bombings; or that Stefan Kiszko was physically unable to commit the sex crime for which he was convicted; or that a witness in the case of the Taylor sisters, convicted of the murder of a rival lover, had told police that one of the two women seen near the place of the crime was black. Both sisters are white. The Birmingham Six pub bombing case in 1991 was another high-profile case of miscarriage of justice.

In the Judith Ward case in 1992, the Court of Appeal decided enough was enough. It overturned her conviction for the M62 coach bombing, warning "we will not allow trial by ambush", and ruled the prosecution had to disclose all case material to the defence.

However, a backlash from police and prosecutors that they were having to spend vast amounts of time and money supplying the defence with material, much of it irrelevant, prompted the last government to clamp down on disclosure.

The Criminal Procedure and Investigations Act (CPIA) 1996, which came into force on 1 April 1997, created two tiers of disclosure, both of which are dependent on the prosecution deciding what unused material should be disclosed.

On primary disclosure, the police disclosure officer is required to list unused, non-sensitive material, and anything that might undermine the prosecution's case should be disclosed to the defence.

The defence, if it wants further disclosure, must first supply a defence statement. The prosecuting authority should then make secondary disclosure of any unused material that advances the defence case. However, examples of non-disclosure have brought criticism from trial judges. A rape trial in Nottingham Crown Court was stopped by the judge and the teenage defendant acquitted when the defence discovered that a crucial video tape taken from a CCTV camera in a nightclub foyer, which proved the defendant's innocence, had not been disclosed a situation described as "lamentable" by the judge.

Disclosure was among the "unfinished business" outlined in Lord Williams's Tom Sergant memorial lecture in London last week when he canvassed the idea of new prosecution rights of appeal.

The Attorney-General maintained the problems with disclosure arose from a failure to implement the CPIA effectively, not from the Act itself. The Home Office was commissioning the search into how the disclosure regime was operating.

However, Roger Ede, secretary of the Law Society's criminal Law Committee, told The Independent that the Government needed to do more than issue guidelines and commission research which would not be completed until 2001. "By then, over a quarter of a million people will have been prosecuted and convicted under these provisions, after pleading not guilty in the magistrates courts and crown courts, yet we know the process by which they will have been tried is not working fairly." He said immediate action should include enhancing the status of the disclosure officer who should never be a witness in the case or involved in the investigation.

He quoted one case where a police officer, who was the subject of a formal complaint of assault by the accused and was the alleged victim of an assault by the accused, was appointed the disclosure officer. In that case, the police withheld a record of a telephone call to the police station from a member of the public at the scene claiming that police were assaulting people.

He said key documents such as crime reports and previous convictions of prosecution witnesses, should be copied to the defence as a matter of course. Prosecutors needed to be more vigorous in their examination of police schedules and more generous in their response to defence requests for disclosure. In the longer term, the disclosure provisions of the Act should be repealed because they were "unworkable". David Calvert-Smith QC, the Director of Public Prosecutions, spoke of his concern at a seminar organised by the British Academy of Forensic Sciences last week that some prosecutors were not complying with their disclosure duties.

However, since it was unlikely the Government would find legislative time to repeal or amend the CPIA, those of us who are faced with the task of prosecuting and defending (and judging) must therefore try to work within it. He said the Crown Prosecution Service was revising joint operational instructions with the police, as well as drafting a public statement of disclosure principals, compiling a good practice guide and running local training initiatives.

Giving the police view, David Phillips, Kent's Chief Constable, warned the seminar that if the disclosure regime was relaxed, it would mean victims and witnesses would refuse to make statements for fear of what might be disclosed about them to the defendant, while any diminishing of the protection provided by Public Interest Immunity (PII) would mean the police would no longer have a credible response to organised and serious crime.

He turned the criticism back on defence lawyers, arguing that their failure to disclose their case meant no system of prosecution disclosure could work. "What is needed is a process judicially supervised, to protect PII, where both sides can discover the extent of their opponents' case."

The defence practitioner David Corker, a partner in solicitors Peters & Peters, accepted that there needed to be more openness from the defence, "bearing in mind that ambush defences are extremely rare and that, in the vast majority of cases, the defence is easy to predict, the defence has far more to lose than to gain by being secretive". However, for the defence to be more open there would have to be safeguards against the prosecution making improper use of defence statements. The "absurd" time limit of 14 days to serve a defence statement would also have to be changed, he said.

In cases involving PII issues heard ex-parte and often in camera, Mr Corker suggested an independent lawyer should be appointed to protect the interests of the defence.

While it is too early for cases coming under the CPIA to have been challenged in Europe, the procedure for deciding what material should not be disclosed on PII grounds is currently being considered in Strasbourg in Rowe and Davis v UK the M25 murder case.

Mr Calvert-Smith argued that the CPIA, properly operated, would not be in breach of Article 6 the fair trial provision of the European convention of human rights. However, Ben Emmerson, of Doughty Street Chambers, said there were serious doubts whether the CPIA would prove to be sustainable once the UK's Human Rights Act comes into force next October.


Guardian Unlimited
14 November 1999
Prosecution in the dock

Ten years on from the Guildford Four, prosecutors are still failing to disclose relevant evidence to the defence. Ben Emmerson reports on a recipe for miscarriages of justice

A young woman with no previous convictions was charged with arson. The police claimed to have found hundreds of matches scattered over the floor of the house where the fire broke out. The evidence seemed overwhelming. But on the first day of her trial her solicitor discovered that the homeowner had asked the police to discontinue the case against her. His letter alleged that the police themselves had scattered the matches on the floor. When asked why, an officer replied: "In case this gets to court." Further enquiries reveal that scenes-of-crime officers took photographs immediately after the woman's arrest. These show only three matches on the floor. None of this material had been disclosed to the defence, or even to the prosecuting barrister.

This story doesn't come from the script of the latest Lynda La Plante thriller. It is one of a depressingly large number of complaints by lawyers to the criminal bar association and the law society about the failure of the law which requires the prosecution to disclose evidence in its hands which could be relevant to the defence.

The reputation of the criminal justice system has been badly damaged over the last 10 years by a series of miscarriages of justice, many arising out of non-disclosure of evidence to the defence.

In October 1989 the court of appeal quashed the convictions of the Guildford Four for pub bombings, following the discovery that vital evidence had been withheld. Ten years on, criminal lawyers are facing up to the reality that despite the litany of wrongful convictions, the recommendations of the royal commission on criminal justice in 1993, and statutory reform, the regime for disclosure of material to the defence is still bedevilled by systemic failings, and miscarriages of justice are still happening.

The royal commission was established in the immediate aftermath of the judgement overturning the convictions of the Birmingham Six, and aimed to ensure that the lessons of these grave miscarriages would be learned. While it was still taking evidence, the court of appeal decided the case of Judith Ward, who had served 18 years for a multiple murder caused by an IRA bombing in 1973.

During her appeal it emerged that the prosecution had failed to disclose vital evidence, including psychiatric and forensic evidence, which could have established her innocence. In quashing her conviction the court described non-disclosure of evidence as "a potent source of injustice." From that point on, the prosecution would be required to provide the defence with all relevant evidence unless the trial judge ruled that it could be held back on grounds of public interest.

Soon after the Ward judgement, another disclosure scandal erupted. Two sisters, Michelle and Lisa Taylor, appealed against their convictions for the murder of Michelle's lover. Shortly before the hearing, a junior defence lawyer looked at the unused material which had become available only after the conviction. He discovered a note recording an original description of one of the suspects which had been provided by the only identifying witness. This was significantly at odds with the appearance of either sister.

This discovery, along with massive adverse publicity in the tabloid press, led to the quashing of the sisters' convictions. The Ward judgement, reinforced by the Taylor sisters' case, brought about real change. Decisions about the relevance of unused evidence were no longer made by the police and prosecution - the people who had an interest in securing a conviction. Instead, the defence was granted access to the "common pool" of material.

But before long, police and prosecuting authorities began to complain that the Ward judgement was imposing an impossible burden on them. Defence lawyers, they argued, were making unreasonable demands for large quantities of irrelevant material.

There was, in reality, very little evidence that the system was being abused. But the lobbying paid off. The bill that was to become the criminal procedure and investigations act was introduced in Parliament in November 1995. Its key feature was that the prosecution became, once again, judge in its own cause.

In every case a police officer would be appointed "disclosure officer", responsible for carrying out the duties imposed by the act. The prosecution would no longer be required to disclose all the evidence in its possession. The crown prosecution service is now required to disclose any material which in the prosecutor's opinion might undermine the prosecution case, and any material which might reasonably be expected to assist the defence.

That sounds fair enough in theory. But it depends entirely on the judgement, diligence and honesty of the police officer who compiles the information in the first place, and the impartiality of the CPS lawyer who assesses whether the material may assist the defence. It amounts to a return to the days when police and prosecution had effective control over the disclosure of information damaging to the prosecution case. As one senior barrister has put it, "the fox is back in charge of the henhouse".

Amid growing concern, the criminal bar association, the British academy of forensic sciences, and the law society conducted a survey of 300 prosecution and defence lawyers between February and May this year. Their report, compiled with the help of the home office, will be published on December 1. It makes worrying reading: 87% of respondents thought that police decisions on disclosure were either unreliable or highly unreliable, and over 90% considered there was no effective method of independent scrutiny.

Among the most frequent complaints were that the disclosure officer was often involved in the investigation and therefore had an interest in securing a conviction, and that police assessments of what was relevant to the defence were unreliable and often clearly wrong. Material which did not fall within any established category of public interest immunity was listed for non-disclosure or else not listed at all. Prosecuting solicitors and barristers often failed to consider the material personally, leaving it to the police to decide whether an item of information should be disclosed.

In a preliminary report, lawyers Anthony Heaton-Armstrong and David Corker, who led the research, say it revealed "an alarming picture of incompetence, poor training, pig-headedness, blatant obstruction and generally a widespread inability amongst police and prosecution authorities to comprehend and put into practice" the rules on disclosure. Complaints that evidence which contradicts the prosecution case has been deliberately withheld from the defence were "alarmingly frequent". Not surprisingly, the great majority of respondents felt the current regime was failing to serve the interests of justice. Two examples are typical.

Last May a 17-year-old boy with no previous convictions faced a rape charge. The allegation, reported 10 days after the incident, was that he had dragged the victim from a nightclub into an alleyway where he had raped her. A video camera had been positioned near the entrance, but the police maintained the videotape showed nothing relevant.

At the end of the first day of evidence, the tape was finally disclosed to the defence. It showed the defendant and the complainant leaving the nightclub, walking side by side. Once the prosecution barrister had seen the video, the charge was dropped.

In another case, two men were alleged to have attacked four innocent people late at night. Both were said to have been carrying knives. The men denied this, insisting they had been set upon and had acted in self-defence. Despite defence requests, the CPS failed to disclose the police log made on the night. Just before the jury was sworn in, after a further delay, the log was produced, recording a 999 call from a passer-by who had witnessed part of the incident. He had seen only one man with a knife who, from the description, could not have been either defendant. The case was dropped.

In theory, irregularities should be picked up when the file is reviewed by the prosecuting barrister. But the surveys suggest that this failsafe mechanism operates only in the most serious cases. One prosecuting barrister described how, when he asked to look at unused material personally so he could advise on disclosure, the CPS lawyer accused him of a lack of trust and "fostering a culture of blame". Another barrister described how a CPS lawyer claimed he was "too defence minded" when he advised that the previous convictions of a prosecution witness should be disclosed.

The director of public prosecutions, David Calvert-Smith, issued a blunt warning to chief crown prosecutors last May. There was evidence, he said, that prosecutors were still not complying with their disclosure obligations, and innocent people were liable to be wrongly convicted. He has commissioned a review by the CPS inspectorate to identify the scale of the problem.

Many lawyers believe the present regime will fall foul of the human rights act when it comes into force next October. As one senior lawyer put it in the survey: "In simple terms nobody can assess what undermines the prosecution case or supports the defence case, except the defence. Only they know what areas they intend to explore and the relevance of what may appear to the prosecution to be trivial or unimportant."


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