CPS Disclosure Failings – What Next?
In recent months CPS disclosure failings have sparked the interest of the nation, not just criminal lawyers. Such interest is understandable, as the criminal justice system has the potential to impact any individual. It needs to be a system in which there are assurances that cases are brought justly and in accordance with the clear guidance. One key element is disclosure.
At the outset, the focus was on the collapse of two rape cases, in which crucial relevant material had not been disclosed. This led to a joint review by the CPS and the Metropolitan Police Service of the disclosure process in the rape case of R v Allan, which collapsed in December 2017. A report of the findings was published in January 2018 which detailed various recommendations, including:
- A nationally agreed joint CPS / Police protocol and process for the examination of digital media in each case, to be agreed by March 2018.
- The Disclosure Officer and Prosecutor to agree and document reasonable lines of enquiry to be followed that are proportionate to an investigation.
- Provide disclosure training to all police officers, led by suitably trained and experienced staff, in line with a nationally agreed timetable.
- Deliver additional mandatory disclosure training through the Chief Crown Prosecutor by September 2018.
- Performance assurance meetings, jointly led by the Chief Crown Prosecutor and the Metropolitan Police Chief Officer (with responsibility for disclosure), to review progress against the recommendations and those in the joint Disclosure Improvement Plan each quarter.
The CPS has acknowledged that there are “systemic” problems with our current justice system and vowed that all current rape and serious sexual assault cases in England and Wales will be reviewed “as a matter of urgency” to ensure evidence has been disclosed. But is it enough? Should there not be a full review of all live prosecution cases, from rape cases to fraud cases? With a review of current cases as a starting point and a review of historic cases to follow?
There is also a question mark over the independence of the review undertaken by the CPS. There should be an independent ‘working group’ with a focus on disclosure issues within the CPS, comprised of CPS lawyers, SFO and FCA lawyers, criminal defence lawyers and Judges. Such independence is crucial to ensure that the extent of the CPS disclosure failures are fully identified, with remedies proposed as to the implementation of the already well established disclosure regime, a training program and effective management.
With the announcement this week that Alison Saunders will be stepping down from her role as Director of Public Prosecutions in October this year, with no named successor, more doubt is cast over the CPS and the disclosure regime. In a statement she said: ‘I am proud of everything the service has achieved over the past five years. My priority over the next six months is to keep driving improvements in how we work, with a sharp focus on casework quality. Key to that will be working alongside the police and other partners to find long-term solutions to the disclosure issues that exist throughout the entire criminal justice system.’
This is certainly an area of interest and something to watch. In the meantime, we continue to doubt the efficacy of the CPS disclosure regime and the inherent disclosure arguments in cases will continue.
Emmeline Coerkamp is a criminal litigation lawyer with experience of a range of white collar crime matters. She has expertise in defending criminal fraud prosecutions, particularly matters brought by the Serious Fraud Office (SFO), as well as HM Revenue and Customs (HMRC) and the Crown Prosecution Service (CPS). She also has experience of confiscation proceedings.