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NEWS

CPS and Police Inspectors questioned on disclosure

editor - March 28, 2018

A fair trial is impossible if the authorities can simply ignore evidence which makes it harder to get a conviction. If the police use their considerable resources and powers to gather evidence against an individual, justice can only be done if the defendant is able to access and use any evidence which might support their case. English law therefore requires the police to disclose any relevant evidence which might undermine the prosecution case or help the defence to the defendant or their lawyer.

As the Justice Select Committee heard this week, however, disclosure in practice routinely fails to fulfill that role. MPs spoke to Kevin McGinty, chief inspector of HM Crown Prosecution Inspectorate, and Wendy Williams of HM Inspectorate of Constabulary and Fire & Rescue Services, who last year published a joint report exposing systemic failings in disclosure processes by the Police and the CPS, describing practices by prosecuting lawyers and officers as ‘routinely poor’. Giving evidence to the Committee's ongoing inquiry into disclosure failures, McGinty said he was 'not surprised' that 97% of defence lawyers had encountered disclosure failings in the past year.

The inspectors also emphasised the longstanding nature of the current issues, and the failure of the police and prosecution service to improve in the last ten years, even after issues with disclosure had been highlighted by the Attorney General, the Court of Appeal, and by two reviews by Lord Justice Gross.

McGinty also highlighted that, as well as wasting time and resources when cases collapse, the ‘really serious issue is that disclosure failings can lead to miscarriages of justice. As the inspectors noted, disclosure failings play as ‘the single most significant cause’ of miscarriages of justice investigated by the Criminal Cases Review Commission. Asked in a recent interview if he thought innocent people were in prison because of disclosure failures, the CCRC chair Richard Foster said he was ‘certain’.

Fair Trials shares that concern about the potential for poor disclosure to have caused miscarriages of justice. As the Select Committee heard today, poor disclosure practices such as inadequate schedules of evidence (lists of what has been collected given by the police to the CPS) make it impossible for any lawyers involved on either side to know what evidence might have been collected but not disclosed. There is a real and dangerous risk that innocent people have been imprisoned, with no way of bringing an appeal because they do not know the evidence of their innocence even exists. We are also concerned about the evidence that the CPS and police do not have sufficient resources to carry out disclosure properly while also pursuing convictions in a system which is 'running on goodwill', and about the conflict between those two goals.

For that reason, Fair Trials has asked the Committee (in our written evidence to the same inquiry) to consider a specific investigation into the possibility that miscarriages of justice have already occurred and gone undetected. It is uncomfortable to admit that the justice system has already failed people, and tempting to assume that this is a crisis which has been caught ‘just in time’. But for the public to have confidence in the justice system, prosecuting authorities must to do more than learn lessons from previous mistakes – they must repair the damage done to the lives of innocent people.

Read our submission on the Justice Committee website.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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