DISCLOSURE DISCOMPOSURE

 

It is quite hard at times to maintain composure in the face of constant disclosure failures by the Crown. I have campaigned on this issue and written on this subject a number of times before. See http://thejusticegap.com/2016/07/kafkaesque-courts-complicit-prosecution-disclosure-failures/ and here: http://thejusticegap.com/2016/11/disclosure-rule-change-finally-stopping-erosion-burden-proof/.

Some progress has been made as a result of the CLSA campaign not least by insertion of an additional CrimPR 8.4 which came into force on the 3rd April 2017 which at least prevents the Prosecution relying upon any introducing documents or information that has or have not been first served or made available to the defence, plus the court itself must not allow (my emphasis) the prosecutor to introduce that information unless the defendant is allowed ‘sufficient time’ to consider it.

I would like to be able to say that this has caused a major change in conduct by the Prosecution and the Court but this is not the case. Recent reports reveal how poor the disclosure practice remains at all levels. See the shocking failure rates on disclosure revealed in this report on larger volume cases at the Crown court for example in this recent inspectorate report on the quality failures on service and selection of unused material : https://www.justiceinspectorates.gov.uk/hmicfrs/publications/making-it-fair-disclosure-of-unused-material-in-crown-court-cases/.

But at the most basic level the problems are just as profound. In the first place the new CrimPR 8.4 providing for the most basic requirements for initial disclosure is still being flouted daily by the Prosecution and indulged by the court. To remind us – what are the basic requirements? They are set out in CrimPR 8.3. There must be served upon the defence (a summary only if in police custody but otherwise):
(i) a summary of the circumstances of the offence,
(ii) any account given by the defendant in interview, whether contained in that summary or in another document,
(iii) any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence,
(iv) the defendant’s criminal record, if any,
and
(v) any available statement of the effect of the offence on a victim, a victim’s family or others’.

When must these be served?
‘(2) Where a defendant requests those details, the prosecutor must serve them on the defendant—
(a) as soon as practicable; and
(b) in any event, no later than the beginning of the day of the first hearing.

In practice and in many cases nothing of the sort happens. Directions are then made on the Case Management Hearing that the prosecution must serve the missing evidence (often the statement of the complainant and other witnesses without whose statements being obtained by the police the charge presumably would not have been laid before the court).

What happens next? A series of dreary chasing e mails by the defence (if the defendant is represented) to the CPS, pleading for service of the basic evidence. At the time of writing this piece I have a trial in less than 1 working days’ time where we have had to cancel an appointment to take instructions due to lack of any evidence other than a brief streamlined case summary. We have repeatedly chased. The court failed to answer our request to list the case for a mention. What will happen is that the court will switch all the pressure to the defence by asking ‘how long to you need us to put the case back for?’ It will suddenly become OUR problem. It will be the defence ‘delaying the court’ or causing an adjournment. Well I for one have had enough of this shabby treatment. What can we do?

Here is where the courts have mostly been consistently unhelpful. I appreciate that the court must weigh the needs of the witnesses and ‘complainant’ carefully. (See what I did there? I stubbornly but correctly refused to refer to complainants as ‘victims’ prior to the burden of guilt having been established by a verdict.) But until the courts more strictly enforce the CrimPR’s nothing much will change and it is that which causes delay through unnecessary adjournments. You have decisions like those in In DPP v Gowing (2014) 178 JP 181 (the Divisional Court), Brants v DPP (2011) 175 JP 246 and R v O [2011] EWCA Crim 2854 which took the view while proceedings should be efficient and expeditious, ‘the power to stop them should not be used to punish the prosecution!’

Not all courts have responded poorly to the increasingly appalling disclosure failures. The tide may be turning at least at a higher level. Here are some useful recent cases and also principles to cite:
1. R. v Boardman (David) [2015] EWCA Crim 175; where the court of Appeal, according to the Case Analysis on Westlaw, (Sir Brian Leveson PQBD; Andrew Smith J; Phillips J) ‘fully recognised the pressure under which the CPS was working, but that could not be an answer if effective case management was to mean anything. In any event, it was not just the CPS which was under pressure. If defence lawyers on a fixed fee had to make repeated applications that reduced the rate at which they were remunerated. Further, the court lost days which could have been used to try other cases and court resources were expended. It was not in the slightest surprising that the judge became exasperated with the prosecution’s conduct’.
Three cheers for the court!

2. Following on from Boardman in Salt [2015] 1 WLR 4905, and at [2015] 2 Cr. App. R. 27 the Court of Appeal although in that case ruling in favour of the Crowns appeal against a stay of prosecution at first instance, made a point of saying this: ‘It was where continuation would offend the court’s sense of justice and propriety or would undermine public confidence in the criminal justice system and bring it into disrepute that a court should make an order which would have the effect of stopping the proceedings.’

So pick your battles well and cite those Boardman and Salt cases I would suggest. Each case will of course depend upon its own facts and those include facts as to just how appalling the disclosure problems have been and how prejudicial the continuance of the case would be in which case the court should consider an application for a ‘stay’ or a S78 PACE application to exclude the evidence.

3. It will also be open for you to oppose any application to adjourn not only citing the CPS v Picton case (2006) 170 JP 567 (as the fault will have arisen due to the failure of the Crown) but also the basic principles of the ECHR such as under ECHR art.6 .3 providing The hearing must be ‘held within a reasonable time’. What is reasonable depends on the complexity of the case, its importance, the behaviour of both the applicant and competent authorities, and the length of time between the conduct in question (i.e. when the offence was committed and when the trial takes place).

Article 6(3) also provides the right to have ‘enough time and facilities to prepare a defence’ and further by 6.4 the applicant must have a real opportunity to present his or her case or challenge the case against them. This will require ‘procedural equality’ and generally requires ‘proper’ access to evidence relied on by the other party.

What this means in my view that those courts who simply offer to put the case back temporarily are, except in the most simplest and basic evidential case, wholly wrong to expect Lawyers to find a corner of the court to take hurried instructions for a trial later that day. The Prosecutor should recognise that and should be the one applying for the adjournment not the defence.

This applies quite beyond initial disclosure but to all outstanding evidence the prosecution has failed to serve in good time prior to the Trial. Common law disclosure rules govern the prosecution’s disclosure duties at any stage of the criminal process when the disclosure regime under the Act is not engaged.

To summarise: It is time the defence became more confident and assertive in demanding proper and timely disclosure. We need to embrace our inner ‘lawyer activist persona’ and make a huge fuss whenever we and our clients are treated this way. Let us keep the Crown to their time limits. List the case or at least alert the Court when they fail. Nothing I have written here is meant as an assault upon any friends we have in the CPS. They are coping they say, with limited resources. That may be so but our personal sympathy for them does them no service whilst we allow them and the courts a free pass on timely disclosure of evidence despite the rules requiring this. CPS resource issues are not our problem and nothing will change if we let these standards slide and the rules be flouted routinely.

Robin Murray
Monday, 31 July 2017

 

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