‘Untold damage’ had been caused by disclosure failings, according to the Attorney General’s review published yesterday. Geoffrey Cox QC said: ‘For too long, disclosure has been seen as an administrative add on rather than fundamental pillar of our justice system. This ends now.’
Cox called for a ‘zero-tolerance’ culture within the Crown Prosecution Service and police of any failures to hand over material that might assist the defence. He said that disclosure obligations began at the start of an investigation and investigators had ‘a duty to conduct a thorough investigation, manage all material appropriately and follow all reasonable lines of inquiry, whether they point towards or away from any suspect’. ‘The review found that this was not happening routinely in all cases,’ he added. The review acknowledged that the police and prosecutors ‘did not routinely comply with a duty to record, retain and review material collected during investigations’. It flagged up a catalogue of shortcomings, including a failure to pursue lines of inquiry that might clear the accused.
You can watch Calum McCae’s Unjust podcast on disclosure including interviews with Liam Allan, Michael O’Brien, Julia Smart and others – here.
Noting that some lawyers and academics argued that there was ‘an irreconcilable conflict’ at the heart of the disclosure regime under the CPIA 1996 and that it was ‘unrealistic’ to expect the police and prosecutors to properly to identify material that might help the defence, the review concluded the legislation was ‘sound’ and that it was not appropriate to reveal all non-sensitive unused material.
The review noted that involving defence lawyers at the pre-charge stage could ‘identify reasonable lines of inquiry pointing away from the suspect to be taken into account when considering a charging decision’. ‘This would allow for the identification of undermining material at the outset of the investigation, meaning weak cases could be finalised at an early stage,’ it said. However the Attorney General pointed out that legal aid for police station work was ‘not designed for a large amount of pre-charge work’ by the defence after the initial police station interview. ‘If a more formal pre-charge engagement model is created, then the Ministry of Justice should review how such work is remunerated,’ it added.
‘While this review accepts that there are serious problems that need fixing, it ignores the plight of those who are already wrongly imprisoned because of police and prosecutors failing to disclose key evidence,’ commented Emily Bolton, Legal Director of the Centre for Criminal Appeals. ‘The Attorney General failed to address issues with the law that currently governs access to evidence after conviction, which mean it is almost impossible for the innocent to access justice.’
The new director of public prosecutions Max Hill welcomed the report, saying ‘rebuilding public confidence following the issues around disclosure is crucial’. At the start of the year, the immediate past DPP, Alison Saunders insisted on BBC Radio 4’s Today programme that, in her view, there were no innocent people in prison as a result of disclosure failings.
Max Hill, in his first interview when asked the same question on the same programme, replying thus: ‘It is impossible for me to know.’ When it was pointed out his view seemed to contradict Saunders’ he said: ‘I am aware of what she said. That was then, this is now.’
The CCA recently launched its #ShowUsTheEvidence campaign to argue for a change in the law governing post-conviction disclosure so that evidence wrongly withheld by police and prosecutors can be accessed – see here. ‘Everyone knows about problems in US criminal justice from shows like Making a Murderer – those problems exist in this country as well but they are hidden by the current law on access to the evidence for appeals,’ said Bolton.
This article was first published on the Justice Gap here.
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