Text of letter sent 5 July 2016 from CCRC Chair Richard Foster to DPP, Attorney General and others

Dear

Re: Disclosure in Criminal Proceedings

During the course of its work, the Commission occasionally encounters themes that occur across a range of case reviews. When these themes give cause for concern, the Commission will seek to draw attention to them in the hope that they can be addressed to the betterment of the wider criminal justice system (CJS).

As you will know, if the Commission forms the view that there is a real possibility that the appellate court would not uphold a conviction, a referral will generally be made to that court so the case can be re-considered. Many factors can lead to a referral. New information, jury irregularities and misdirections have all given rise to referrals in the last 12 months.

Regrettably, many of the Commission’s referrals are the result of a failure within the CJS to disclose relevant information at some point. It is not a problem that is restricted to the courtroom; the Commission has dealt with numerous instances of the police failing to disclose information to their colleagues within the Crown Prosecution Service.

The Commission is of course mindful that in some cases (perhaps especially in Northern Ireland) there is material at issue the disclosure of which could endanger national security and the safety of the public. A difficult balancing exercise is needed in such cases between the public interest in withholding such information and the interests of justice in receiving all relevant evidence.However, the Commission’s concerns do not primarily arise from such national security cases.

Examples of what we do have in mind include police failings to disclose information in relation to an alternative suspect and (in cases involving undercover policing operations) instances where we have discovered that relevant police activity was not disclosed to the prosecution, as a result of which the CPS could not properly consider how to proceed fairly. On at least one occasion the defence were deprived of the opportunity to argue entrapment.

Whilst the Commission recognises the operational concerns of the police in sensitive and difficult cases such as these, it is important to remember that convictions that flow from such operations must be able to stand up to the same level of scrutiny as all other convictions. There is no separate rulebook. As a result of the decision not to disclose information, the courts may be misled, and the integrity of the justice system potentially called into question.

Moving to the courtroom, one particularly surprising case involved the bases of pleas of two co-defendants, which had been accepted by the Crown prior to the applicant’s trial, not being disclosed to the applicant ahead of their trial.
In other cases, the failure to disclose evidence pertaining to the credibility of
victims and witnesses has featured prominently during the course of CCRC
reviews. Even when the Commission is of the view that an application to
adduce the evidence would not be successful, or that the evidence does not
give rise to a real possibility, it is still a concern that the disclosure protocols
have not been observed.
The Commission is acutely aware of the economic climate within which we all
operate, and recognises that all bodies within the CJS are under pressure to do more with less.
Whilst it does not make the consequences any less serious, the majority of disclosure failures are non-deliberate. Internal processes and procedures must be adhered to if the system is to work.
We are very conscious that it is not only defendants that suffer as a result of
convictions being called into question; it is also traumatic for the victims of crime to find out that justice has potentially not been done. It removes the comfort that closure gives. We are also mindful that a quashed conviction does not necessarily mean innocence – had full and proper disclosure been made at the trial stage there is, in some cases, a good chance that the defendant would still have been convicted by the jury. When discovered at the late stage of a Commission review, that often cannot be righted.
With the advent of digital data, we appreciate that the volume of information that will be processed during the course of a criminal case has increased
exponentially. It will be crucial to the integrity of the CJS that this data is
managed properly, and disclosed where appropriate.
It is in the interests of justice for the disclosure protocols to be carefully adhered to, and the Commission is determined to ensure that every stakeholder within the CJS is alive to the potential for convictions to be quashed should this important part of the process be neglected.
Given our concerns about disclosure, I will this year be drawing particular attention to the issue in my Annual Report; and I wanted to draw your attention to the matter in advance.

Yours sincerely

Richard Foster

Chair

cc
Director General, Justice and Courts Policy Group
National Police Chief’s Lead for crime
Advocate General for Northern Ireland
DPP for Northern Ireland
Permanent Secretary Northern Ireland
Chief Constable, Police Service Northern Ireland