Police failing to disclose crucial evidence about defendants, report finds

The police and Crown Prosecution Service have been accused of failing to disclose crucial information about cases, resulting in defendants’ right to a fair trial potentially being undermined, according to a new report. 

Compiled by HM Inspectorate of Constabulary and the HM Crown Prosecution Service Inspectorate, it found that it was rare for police officers to tell prosecutors about evidence that could undermine their case or assist the accused’s – known in legal terms as unused material.

Their recording of sensitive and non-sensitive evidence was “routinely poor”, it said, adding that prosecutors in turn were failing to challenge the poor recording of material and carry out their duty to consider what to hand over to the defence throughout a case. This lead to delays and even to trials collapsing, it said. 

There is a “culture of defeated acceptance” where authorities and lawyers would seek to “work around the failings” rather than fixing them, it said. 

Inspectors drew their conclusions after examining 146 crown court case files, including 56 that the CPS identified as failing as a result of disclosure issues.

Inspectors found that in 55.5 per cent of the cases they reviewed there were obvious disclosure issues before a defendant was charged. Prosecutors only dealt fully with these issues in only one in four cases and in 38.3 per cent of cases they were not dealt with at all.

Zoe Gascoyne, chairman of the Criminal Law Solicitors’ Association, blamed the emphasis on “speedy justice” to churn through court cases in a time of cuts to public services.

She added that defendants would be “horrified” if they knew the extent of the problem.

She said clients could be put in the “dreadful position” of being advised to plead guilty to receive maximum credit without all the evidence having been presented to the court.

“It is frightening when someone who doesn’t have a previous conviction [is in this situation] and a conviction can have a life-changing impact,” she said.

Police officers “rarely” told prosecutors about evidence that could undermine their case or assist the defendant, known as “unused material”, and police’s recording of sensitive information was “routinely poor”. 

Prosecutors were in turn accused of “failing” to challenge the poor practice by police or consider what should be handed over to the defence during a case. 

The results lead to delays, trials collapsing, and defendants making a plea without all the evidence being available.

Richard Atkinson, partner at Tuckers Solicitors, told The Independent that it was “not at all uncommon in [his] experience or in colleagues’ experience for disclosure to not be properly addressed until the door of the court room”.

The report added that these “chaotic scenes” were “likely to reflect badly on the criminal justice system in the eyes of victims and witnesses”.

CCTV shows man police want to speak to in relation to acid attack in Luton on 19 May 2016

One example was a man who was accused of robbery who said he was the victim of a violent drug dealer. His claim was not investigated by the police or the CPS before he was charged and he was held in custody for six months.

Shortly before the trial, a review discovered police intelligence that matched his claim, and the case was dismissed.

Matthew Claughton, criminal defence solicitor at Olliers Solicitors, told The Independent: “I’m speaking in general terms but frequently the disclosure officer can be cavalier without proper regard to their duties. The pressures on cuts to public funding mean that defence lawyers are not always in a position to pursue these issues.

“And what’s more, I think police know this. They realise that they are up against badly funded defence teams.”

Mr Atkinson said the problem did not just come down to police who deliberately disregarded their duties, however.

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“There are some police officers for whom that is true but there are others who do not understand the significance of material they have in their possession or think it’s that important,” he said.

The new report has made nine recommendations, including training police officers to deal with disclosure more effectively.

Kevin McGinty, co-author of the report and HM Chief Inspectorate of the CPS, said a failure to address disclosure “undermines the principles of a fair trial which is the foundation of our system”. 

“It adds delay, cost and increases the stress faced by witnesses, victims and defendants,” he said.

“The findings of this inspection will surprise no one who works within the criminal justice system as there appears to be a culture of defeated acceptance that issues of disclosure will often only be dealt with at the last moment, if at all. If the police and CPS are ever going to comply fully with what the law requires of them by way of disclosure, then there needs to be a determined cultural change.”

Lawyers welcomed the new report as a first attempt to fix the root cause of the problem.

In a digital age where vast quantities of evidence no longer need to be copied into paper files and can be simply stored on a hard drive, there was less reason to restrict disclosure due to the costs involved, the report said.

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