This article is a companion piece to another where I expressed the deep disquiet felt by many about the declining standard of police pre-interview disclosure. You can find that piece here.
However the Crown Prosecution Service (CPS) and other prosecutors are also simply failing to do their job and need encouragement to do so. This needs examination of: the working in practice of the present prosecutor’s code, how defence lawyers are in effect marginalised in breach of this code, and I shall argue for some practical adjustments to the code to make it consistent with UK and international law.
How are the CPS failing to do their job?
- Increasingly the police interview is treated as part of the trial process – that is clear as an inference of possible guilt from silence applies which can seriously impact the trial despite the right to remain silent. Leaving aside whether this inference under S34 of the Criminal Justice and Public Order Act 1994, should remain on the statute book, what we can say is that international law and, despite UK courts attempts to water protection down, UK case law suggests that for an inference of guilt to bite there should be proper disclosure. I set out the case law in the companion piece above referred to at the top of this article.
- In a nutshell the defence lawyer has to make a desperate judgment call when facing poor disclosure. Is the inadequate disclosure so poor as to make it impossible to advise the suspect properly and will that advice withstand scrutiny at the trial? (R. v. Roble  and R v Beckles (Keith Anderson)  EWCA Crim 2766;  1 W.L.R. 2829.)
- But what in realty happens at the police station? A number of things that are the unfortunate consequence of poor disclosure. Three examples: Firstly, a charge, in circumstances where, were it not for the poor disclosure, another course might have been followed. This in turn leads possibly to a not guilty plea until evidence is finally served. Secondly, the awful trap where someone is denied proper disclosure revealing guilt but is unable to recall clearly the events (possible due to intoxication) is denied a non-court based disposal such as a caution. A suspect might have said ‘I have difficulty recalling the events but accept this is due to intoxication not innocence and I fully accept the case against me’. Thirdly, an excessive reliance upon the inference from silence where there is inadequate disclosure and a failure to instigate further.
- Why do I place the blame upon the CPS for this waste of public money and risk of injustice? Because they are implicitly condoning the inadequate disclosure by the police by breaching on a daily basis the prosecutors’ code they are supposed to follow. The prosecutor’s code (see here) requires, under Para 2.6, that ‘Prosecutors must apply the principles of the European Convention on Human Rights, in accordance with the Human Rights Act 1998, at each stage of a case. Prosecutors must also comply with any guidelines issued by the Attorney General; with the Criminal Procedure Rules currently in force; and have regard to the obligations arising from international conventions.
Failure to disclose evidence is a breach actual or anticipated of: a) All the requirements of the common law; b) article 5 and 6 of the European Convention on Human Rights (as CRimPR 1 (1) overriding objective explicitly recognises); (c) EU Directive 2012/13 of 22nd May, 2012 and (d) The necessity to serve all available statements under CRimPR 8.2.—(2) and CRimPR 8. (3) which anticipates service prior to any hearing of initial details of the prosecution case as under Rule 8.3 ‘any written witness statement or exhibit that the prosecutor then has available and considers material to plea.
- Lord Leveson in his review anticipated such early full disclosure at the police station. This was talked about but has never in practice been implemented. It should happen prior to interview where the evidence is available to reduce unnecessary conflict and expense.
- Under the prosecutors code 4.2 ‘In most cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed’. This should surely include a cold impartial look at the adequacy of the police disclosure? Where it is manifestly poor and incomplete the advice to the police should be to re-inteverview and where available either serve or obtain the crucial evidence that would after all defeat the defence resistance to any S34 inference from silence.
- Under prosecutors code 4, ‘Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction’. How is this possible when the defence have been deliberately pinned back into a ‘no comment’ defensive stance due to the hopeless disclosure they have received? The CPS should do their job and throw the case back to the police by saying ‘you have not disclosed enough for us to be able to test the defence or hit them with a S34 inference’.
- The code is further reinforced by prosecutor’s code 4.5 that prior to charging advice the CPS should conclude that ‘there is a realistic prospect of conviction is based on the prosecutor’s objective assessment of the evidence, including the impact of any defence and any other information that the suspect has put forward or on which he or she might rely’.
- How can the CPS reach that conclusion under 4.5 with integrity and within the spirit of the law and rules if they know the defence have been entirely wrong footed by being denied the evidence they should receive as a matter of law? They will know that the right to remain silence is often in response to this failure. They know therefore that the suspect has in reality been denied the opportunity to answer a case that has never been put to them in adequate detail. How when looking at such poor disclosure can the CPS in all conscience reach such a conclusion as required of them here?
What can the defence do to influence the CPS decision?
Precious little due to the barriers, both physical and technological, that prevent communication between defence lawyers at the police station and the CPS. In reality there is no pre-charge communication between the lawyers for the defence and the CPS. The Police will submit their representations and the defence simply have to await the outcome. As I have said in the previous piece one can e mail a written statement complaining about the inadequate disclosure (if you have WIFI reception – which often one doesn’t) and ask for this to be attached to the custody record. But often this is not attached and the statement is not forwarded.
This current failure of the police and the CPS to consider representations is completely at odds with the prosecutor’s code. See 3.3 which provides that Prosecutors should not only identify and, where possible, seek to rectify evidential weaknesses, but, although prosecutors primarily consider the evidence and information supplied by the police and other investigators, the suspect or those acting on his or her behalf may also submit evidence or information to the prosecutor via the police or other investigators, prior to charge, to help inform the prosecutor’s decision.
In reality as I have stated above and as 99% of lawyers will confirm there is no mechanism in place at the police station in the pre-charge phase for the ‘suspect or those acting on his or her behalf ‘ to submit evidence or information to the prosecutor via the police. It doesn’t (or rarely) happen. Consequently the defence complaints about inadequate disclosure are unheard or muted with only the police view or representations being conveyed to the CPS.
The CPS are in my view failing to look more deeply into the reasons for ‘no comment’ interviews. Obviously they cannot be aware of confidential legal advice give to the suspect. But they can look for obvious clues in the inadequacy of disclosure by the police. They are also not enquiring into whether defence representations have been made or failing to give adequate weight to these if they are aware.
Where do we go from here?
I have in the companion piece given my views about the S34 inference of guilt and also proposed changes to the PACE code that will reform the way that the police deal with pre- interview disclosure. So far as the CPS are concerned I propose an amendment to the prosecutor’s code.
There should be a presumption against immediate charging where the disclosure does not reflect adequately the evidence. The CPS should insist upon a further interview with proper disclosure to enable suspects and their lawyers to know the case for the Crown in sufficient detail to be able to properly answer the allegations.
Without such adequate disclosure any inference from guilt should be treated in the same way as failure to offer the opportunity for free an independent legal advice. No presumption should apply at all. That would require a change to the PACE code as well as the prosecutor code.
I can see no real downside for an honest police and prosecution team because a failure to respond to questioning where disclosure was in adequate detail would trigger the inference of guilt.
These proposals taken with the others previously made would remove unnecessary conflict and public expense in forcing not guilty pleas, which early proper engagement and proper evidential disclosure as envisaged by Lord Leveson would remove.
- The CPS Service should not charge where the police fail to disclose prior to interview - 4th October 2018
- Justice is under attack – allies must unite and fight back - 6th June 2018
- Why do we keep investing in failure? - 16th January 2018
- No tiers before bedtime - 29th January 2016
- Dispatches from the frontline - 10th July 2015
- Defence lawyers know in their hearts these cuts will kill them - 1st July 2015
- One nation is not built upon injustice, Mr Gove - 24th June 2015
- ‘There’s no point in rights if you can’t enforce them’ - 22nd May 2015
- ‘Legal aid matters to voters’ - 15th April 2015
- Why the attack on access to justice will be an election issue - 17th October 2014