I welcome your report (Times, 26 July 2018) of the recently announced Criminal Cases Review Commission (‘CCRC’) internal review of disclosure in 306 closed criminal cases. The alarming issue of disclosure failings in the Criminal Justice System has not always received the attention which it deserves.
During my ten years as Chair of the CCRC – the public body responsible for investigating possible miscarriages of justice in England, Wales and Northern Ireland – I have used successive Annual Reports to Parliament to emphasise that a major cause of miscarriages of justice continues to be non-disclosure at trial of material which could have been of assistance to the defence. We have been at the forefront of public debate on this issue. In our case reviews, we have always been acutely aware of the potential for trial disclosure failings to affect the safety of convictions. Whilst, in the past, some commentators have criticised our practice of conducting a detailed analysis of original investigation and prosecution documents, such work is now generally accepted to be vital. It can and does uncover miscarriages of justice, notably because we identify material which should have been disclosed to the defence and was not. Around one fifth of our referrals to the Court of Appeal (more than 130 cases), including some of our most recent cases but also some of our earliest, have turned on non-disclosure.
On 20th July this year the House of Commons Justice Committee published its report “Disclosure of evidence in Criminal Cases”, following an inquiry to which the CCRC had contributed. The Committee’s conclusions – which the CCRC supports – were critical of the current practice of police and prosecutors in respect of disclosure. However, we believe there needs to be greater focus on completed cases that have already resulted in convictions. That is why the CCRC has been proactive in launching the internal review of disclosure which was announced yesterday.
It should be noted that, wherever broad problems are identified in the Criminal Justice System, it is our practice at the CCRC to look back at our own closed cases, and to reflect on whether any of those cases might be affected. Our decision to conduct the current review was in no way an acknowledgement that past CCRC investigations have lacked depth. We cannot predict what the findings of our review will be, but we consider it essential to ask questions.
One of the key purposes of the CCRC is to build public confidence in the Criminal Justice System. We believe the public needs to be assured that disclosure in past criminal cases – as well as in live prosecutions and future criminal proceedings – can stand up to scrutiny. Although we can only review those cases which the CCRC has decided in the past, we hope and expect that other organisations will also consider the best way to review disclosure in closed cases, and that they will follow where we seek to lead. If there are further lessons for the system to learn in relation to disclosure, then the CCRC will play its role in highlighting them. Equally, if there are lessons for the CCRC to learn about our own investigations, then we will also not shy away from them.
Yours faithfully,
Richard Foster CBE,
Chair, Criminal Cases Review Commission