Disclosure – Update on CCRC’s current position and programme of work
On 20th July the House of Commons Justice Committee published a report entitled “Disclosure of evidence in Criminal Cases”. The CCRC was one of a number of organisations which had provided the Justice Committee with written submissions on the subject, in the course of the Committee’s inquiry. The Committee’s report was critical of the current practice of police and prosecutors in respect of disclosure, and again highlighted the problem of non-disclosure of relevant unused material in criminal cases. The Justice Committee report followed on from the July 2017 report “Making it Fair” – the result of a joint inspection by Her Majesty’s Inspectorate of Constabulary and Her Majesty’s Crown Prosecution Service Inspectorate – into disclosure of unused material in volume cases in the Crown Court. That report had itself been highly critical of the approach of police and prosecutors to the disclosure process.
The CCRC has long recognised the significant problems in this area, and the CCRC’s Chair, Richard Foster, has highlighted the issue in successive Annual Reports to Parliament, explaining that: “a major cause of miscarriages of justice continues to be non-disclosure, at or before trial, of material which could have been of assistance to the defence” (Annual Report and Accounts 2017). Mr Foster has also written to the Law Officers, DPPs here and in Northern Ireland, and to senior figures in the police, highlighting the CCRC’s experience on the issue of disclosure, and stressing that disclosure problems are not only a recent phenomenon. Around one fifth of our referrals over the years (more than 130) to the Court of Appeal, including some of our most recent cases but also some of our earliest, have turned on non-disclosure.
The CCRC observes that other organisations – most notably the CPS and the Attorney-General’s Office – have recently undertaken review work aimed at live prosecutions, prosecutions which have recently been dropped by the CPS, and the operation of the disclosure regime overall. Although such work is vital and is to be welcomed, the CCRC considers that it is equally important for any review of disclosure to consider completed cases that have resulted in convictions. The CCRC’s Chair has emphasised this same point in a recent letter to the Attorney-General. It is this need to consider completed cases which has led the CCRC to devise the internal review which is discussed below.
The CCRC’s recent and ongoing work in connection with disclosure can be summarised as follows:
- The CCRC has liaised with the Attorney-General’s Office, the CPS, HMCPSI, and the Metropolitan Police in relation to developments on the issue of disclosure.
- The CCRC has recently completed updated internal training to its staff in relation to how we address disclosure issues in our own case reviews.
- The CCRC has devised an internal review which will sample closed CCRC cases.
In relation to the CCRC’s internal disclosure review, although a number of details are still to be resolved, it has been decided that:
- The review will sample 306 rape convictions which were closed by the CCRC between April 2016 and March 2018.
- For each case which is sampled the CCRC will consider the approach of and the interaction between the CPS and the relevant police force regarding disclosure in the case itself.
- For each case which is sampled the CCRC will consider its own previous approach (during the previous CCRC review of the case) to the disclosure process in the prosecution in question. The CCRC’s previous approach to disclosure in these cases will be assessed against current best practice.
- It is anticipated that the internal review will report on its conclusions by 29 March 2019.