Comment piece by CCRC Chair Richard Foster – written at request of Daily Mail on 22 December 2017, but unused.

The right to a fair trial is at the heart of our justice system and is a cornerstone of our democracy.  In the 1980s this right was breached, leading to shocking miscarriages of justice such as the Birmingham Six and Guildford Four.


The police failed in their fundamental duty of honesty.  That is why Parliament legislated to make disclosure, the requirement to identify and to make available all relevant material that either undermines the prosecution case or supports the defence, a statutory duty. Failure to observe this requirement is a failure to uphold the rule of law. What confidence can we have in our guardians of the law if they themselves do not uphold it?


All those involved in criminal justice know we have a major problem. I drew particular attention to non-disclosure in my 2015/16 Annual Report and I wrote to the Law Officers, Director of Public Prosecutions and the National Police Chiefs’ Council urging action. It is why I referred to non-disclosure at our 20th Anniversary Conference as “the biggest single current problem” affecting the right to a fair trial.


Disclosure is hard work. It can be dull work. It is not glamorous work. It means sifting through huge volumes of material, made more voluminous today by the explosion in digital communications and CCTV surveillance. As a former Chief Executive of the CPS, I know this and have every sympathy with former police and prosecution colleagues. But the fact the task is harder – and money shorter – is no excuse – especially in prosecutions of the most serious sort. We are, after all, talking about whether evidence actually in our possession justifies us in even bringing a prosecution. Let alone convicting someone.  There are many things that can take low priority. Fairness is not one of them.


The recent Making it Fair report, produced jointly by HM Inspectorate of Constabulary and HM Crown Prosecution Service Inspectorate, and to which my Commission contributed, makes sobering reading. Police practice is “routinely poor”.  Police disclosure of material that may undermine the prosecution or assist the defence “is rare”. Time and money are wasted.  Accusers and accused can be put through the mill unnecessarily.  At worst the innocent wrongly convicted. Disclosure should be routine staff work. Deliberate non-disclosure should be unthinkable.  So why is non-disclosure the biggest single cause of unsafe convictions my Commission sees?


This problem needs to be addressed and it needs to be addressed now.  Identifying and disclosing material which should be identified and disclosed is not an impediment to good police work; it is good police work.


Finally, disclosing material that should not be disclosed is an equally heinous failing. We give investigators intrusive powers to look into our private lives so that alleged criminality can be thoroughly investigated. We need to be confident that material obtained in that way is made publically available if, but only if, doing so is in the interests of justice. Anything else is unprofessional. Anyone who does so damages our faith in the police as upholders of the law.