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A Damaging Disclosure Culture? Lessons from the Allan Case

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About The Author

Andrew D Parker (Regular Writer)

Andrew is a pupil barrister at Cornwall Street Chambers who intends to provide specialist advice and advocacy in relation to complex crime, police, mental health law and regulatory law. He is a former senior police detective who also holds a PhD in Forensic Psychology from Kings College London.

Injustice anywhere is a threat to justice everywhere.

Martin Luther King Jr.

Questions still remain as to the causes of the near miscarriage of justice in the case of Liam Allan, with suggestions ranging from 'sheer incompetence', funding cuts or a result of the prosecution's ‘victim-focused’ disclosure process. As was widely reported this week, the rape trial of the 22-year old student collapsed after three days, after Jerry Hayes – an independent barrister rather than an employee of the Crown Prosecution Service (CPS) – insisted on examining undisclosed material and, alongside defence barrister Julia Smart, found some 50,000 messages sent by the complainant to Allan, pestering him for sex and fantasising about “rough sex and being raped”.

It is reported that the detective in charge told Hayes that the sexual messages sent by the woman were 'too personal' to share. This raises stark questions about prosecuting authorities’ current practices of disclosure. Indeed, while the disclosure exercise has always presented challenges for the busy practitioner – and there will always be a minority who are motivated to use disclosure, or lack of it, as a tactical device in proving a particular case theory – the duty of disclosure is coming under a variety of pressures, some of which are completely new.

Resourcing – or lack thereof – is no doubt an issue, as is the state of knowledge of the statutory duties and lack of experience amongst some practitioners. But, as this article contends, the Allan case reveals that the main problem is cultural.

Most investigating officers – perhaps due to different forms of instruction, but certainly due to a variety of pressures placed on them – no longer recognise the concept of independent investigation. The search for justice has been superseded by the drive for performance and public relations. Policing is now a highly politicised business and that business is influenced by public opinion and the need to achieve results. This article, therefore, argues that a shift is needed if miscarriages of justice are to be avoided.

Disclosure: A Long-Standing Issue

A recent inspection of the disclosure of unused material by prosecutors, led by Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI), found continuing failings in the way disclosure operates in criminal proceedings, despite a welter of attempted judicial, procedural and legislative fixes over the years. Though published in July 2017, the findings of this inspection have regained their relevance as reports of the collapse of Allan’s trial hit the headlines.

The discovery of such problems and calls for reforms to combat them is not new; indeed, the majority of HMCPSI’s recommendations for improvement echo those that went before them. However, intriguingly, one element of the HMCPSI’s findings were novel: it found that the Crown Prosecution Service’s (CPS) approach to disclosure has been too narrow. Institutions are working around issues rather than fixing the cause of the problem.

Problems with the disclosure of unused material have persisted for years. Numerous miscarriages of justice have been attributed to non-disclosure and suppression of evidence. Indeed, if there was ever a salutary tale showing the importance of disclosure, it is that of ‘the Cardiff Three'. This case – reported as R v Paris Abdullah and Miller [1994] Crim LR 361 – involved the wrongful conviction for murder, and subsequent exoneration on appeal, of three innocent men. The subsequent pursuit of the officers who allegedly suppressed evidence from disclosure at the initial trial ended in another failed criminal prosecution for misfeasance in a trial itself typified by non-disclosure of relevant documents by the Crown. As the-then Director of Public Prosecutions Keir Starmer has said:

The prosecution will stand or fall on the quality of disclosure, and failings can leave the court with no choice but to acquit defendants who have a case to answer.

What is Causing the Problem?

Striking the Right Balance

Published shortly after the HMCPSI’s report, Richard Horwell QC’s review of the disclosure issues that brought down the prosecution of the Cardiff Three officers suggested a lack of resources, an inappropriate mind-set, and the inexperience of those charged with disclosure were paramount causes of the trial’s collapse.

At the heart of these problems lies the prosecution's monopoly over the creation, collection, evaluation, and disclosure of material. Disclosure rules seek to level the playing field but, in practice, disclosure is undertaken in imperfect conditions.

True, prosecuting authorities are under a duty of fairness: as the Privy Council described in R v Randall [2002], the CPS should act as a candid 'minister of justice', with the goal of securing a fair trial as opposed to a conviction at all costs. Thus, the so-called 'golden rule' of disclosure requires the full disclosure of any material relevant to the case.

However, such a straightforward application of the rules of natural and open justice appears not to be so simple in practice: there remains real controversy over the precise boundaries and content of the prosecution’s duty to disclose. Statutory reforms and judicial guidance on disclosure have struggled to strike a balance between openness and practicality, such that there is a conflict between the burdens of the prosecution to analyse, evaluate and select material for disclosure, and the rights of the defence to have access to material which may support their case.

Ensuring that disclosure is effected comprehensively and fairly requires a highly focused, often time-consuming, expensive and methodical search for material. Realistically, however, a framework that balances economy and effectiveness and that is both fair and workable, may be both challenging and expensive to achieve.

Yet this should not be considered an insurmountable hurdle: it must be remembered that the ultimate cost of non-disclosure to society is the risk of a miscarriage of justice and the loss of public confidence in the criminal justice system.

Unclear Boundaries of Interpretation

When it comes to disclosure, it is clear that there is a problem as to where the interpretative boundaries lie. For instance, the duty of prosecutor’s to pursue of all reasonable lines of inquiry is open to interpretation; what constitutes reasonable depends on the context of the particular case.

Furthermore, the disclosure test under Section 3(1)(a) of the Criminal Procedure and Investigations Act 1996 (CPIA 1996) does not require the prosecution to disclose material that is either neutral in effect, or adverse to the accused. Instead, whether documents are material – and thus should be disclosed – will depend upon the circumstances of the defence case. However, the prosecution is obliged to disclose the material if it could reasonably be considered capable of undermining the prosecution or assisting the accused.

Furthermore, although investigators are obliged to record and retain all information which may be relevant to the investigation - even negative information that is detrimental to the prosecution - it is not part of the prosecution's duty to conduct a word-by-word examination of material to be alert to anything which might conceivably or speculatively assist the defence. This might include analysis of circumstantial evidence – isolated or seemingly irrelevant facts which, taken together, may have probative value – upon which a jury may be asked to draw inferences.

Unsurprisingly, officers typically find it difficult to apply these tests consistently, particularly in large and complex cases. Indeed, this duty of disclosure requires analysis as to whether something may affect the outcome of the trial. But what may appear exculpatory to defence counsel at trial may seem only tangentially relevant to police or prosecutors at an earlier stage

Ultimately, adequate disclosure requires the disclosure officer to undertake some complex mental gymnastics to anticipate what may or may not be relevant, inevitably increasing the opportunity for interpretational error. Disclosure is, therefore, only as good as the person doing it and, even then, that person must have all the material before them.

Wider Issues

Notwithstanding the issues surrounding the scope of the duty to disclosure and other individual sources of error, understanding the causes of erroneous disclosure also requires exploration of how societal forces, institutional logic, and erroneous human judgement come together to produce an opportunity for miscarriage of justice.

Occupational Culture

Underlying cultural issues within the police service and the CPS may contribute to non-disclosure, as investigators try to reconcile the dichotomy between the desire to convict and respect the due process rights of the accused.

A fair trial depends upon the fairness and integrity of the police from the moment an investigation begins. Thus, police training reinforces the primary focus on attaining a conviction through the application of professional investigative processes and good faith, as opposed to dwelling upon the causes and the prevention of errors that might curtail the risk of a miscarriage of justice. 

Nevertheless, a detective’s perception of a case is informed through regular contact with people who may lie or distort the truth. And the dangers of investigators being misled are amplified by the choices that are made when constructing a case. An increasingly embedded occupational culture is a one-dimensional focus on the needs of the victim has the potential to skew the interpretation, selection, reformulation, and – in some cases – the creation of evidence to build a case that achieves an organisationally-defined outcome. In this context, detective work is typified by working around, rather than the breaking of, the rules through the manipulation of evidential standards that are often open to interpretation.

Occupational Pressures

Investigators and prosecutors are additionally under pressure, both internally and externally, to achieve results. This creates conflict with the requirement for impartiality, and it is perhaps inevitable that some unconscious filtering occurs, which sees evidence assessed based upon predominant beliefs and cultural expectations rather than what may be surmised of the defence case. A system so open to discretion is inherently open to distortion. 

Combined with an increasingly managerial approach to criminal justice - with its emphasis on reaching targets and convicting the guilty - it is unavoidable that a practical application of the rules prevails over the presumption of innocence in the order of priorities. The potential for error or omission in the recording, analysis, and evaluation of material, coupled with budget constraints, increases the risk of corners being cut.

An Abundance of Material

The complexity of major crime investigation creates further challenges. Coupled with the fact that both the volume and complexity of such material is entirely different to that which was available when the disclosure regime was established, there is an increasing risk that something vital will be missed. Smartphone usage and a plethora of different social media platforms have made this issue worse.

Indeed, the collection of vast amounts of material, often overloaded with misinformation, quickly outstrips resources to deal with it. Regrettably, information management system seems not to have alleviated the disclosure officer’s burden as the material still must be analysed and evaluated. Genuine mistakes may be expected.

Training and Funding

The CPIA 1996 emphasises the importance of the officer in charge of an investigation overseeing disclosure. However, in practice, this role is often assigned to less experienced and often untrained officers and civilian support staff. Paragraph 10.1 of the CPS's Disclosure Manual holds that primary responsibility for ensuring that all relevant exculpatory material is disclosed remains with the disclosure officer.

Thus, notwithstanding intensive regulation and scrutiny, the successful operation of disclosure procedure continues to depend on the open-mindedness, intelligence, efficiency and conscientiousness of investigators and prosecutors. However, specialist training for the role is minimal. Hence, disclosure officers – often working with a minimum of training and supervision – are routinely failing to comply with scheduling of unused materials and tend to confuse what constitutes relevant unused material.  

This seems to have its roots in recent budget cuts. Indeed, in contrast to current levels of disclosure training, the training that was introduced to facilitate the implementation of the old regime under the Police and Criminal Evidence Act 1984 during a time of unprecedented police budgets, allowed for extensive re-training to be undertaken in a way that did not unduly prejudice other priorities.

The same cannot be said for today’s training, and the situation is worsening. Indeed, since the introduction of the College of Policing in 2012, funding for training now comes from individual force operational budgets rather than a central grant. This has meant specialist training, if available at all, is effectively rationed. 

The Potential for Reform?

The Home Secretary's response to the HMCPSI’s report was to refer the recommendations to Chief Constables and Senior Prosecutors for action. However, no provision is being made for the inevitable cost and resources necessary to fix the problems. Indeed, with austerity affecting every part of the Criminal Justice System, the Police Service and CPS are having to deal with ever more complex and sophisticated challenges and regulatory expectation with resources effectively trimmed back to that of 1985. Without sufficient resources, the required cultural shift needed to make disclosure work seems unlikely.  

Furthermore, while the institutional separation of disclosure functions between police, CPS, and prosecuting counsel has traditionally been viewed as a strength of the English prosecution system, the difference in operating cultures and working remotely from each other creates gaps and opportunity for error. 

As far as reform is concerned, it is argued that there are two main alternative options – plus a further presumption – that could be used to tackle the increasing risk of a miscarriage of justice caused by failed disclosure. First, avoiding the risks of placing the burden of evaluation of the material on the prosecution entirely by giving the defence everything. Second, by introducing an integrated prosecution model which expands the powers of the CPS to take responsibility for the reviewing of all the material. Third, by stipulating that any doubt as to relevance or ‘disclose-ability’ of material should be resolved in favour of disclosure.

Proposal One: Full Disclosure

Full disclosure is the key to rebalancing the equality of arms between parties: equal access to material enables sufficient adversarial debate. Sharing evidence reduces delay and cost by allowing resolution of more cases earlier in the process. Appropriate access to all available material in a case also dramatically reduces the opportunity for legal challenge; thus, potentially increasing the reliability of outcomes and public confidence in the criminal justice system. In short, full disclosure drives enhanced judicial efficiency.

Moreover, the exchange of all evidence removes subjectivity and promotes fairness and accuracy in disclosure. Taking disclosure out of the hands of interested parties, such as the police and prosecutors, lays the foundations for reciprocal and cooperative disclosure. If initiated as early as practicable, a more open and extended disclosure allows for fairer and more accurate analysis of information to adequately prepare for trial. Amendment of the Criminal Procedure Rules may allow for the exclusion of anything that had not been disclosed for use in trial proceedings. Accordingly, open disclosure improves procedural transparency and ensures both fairness of both the trial process and the outcome. While accepting that cost may be a factor – potentially weighing more significantly upon the defence – the next best option is to integrate the existing prosecution model.

Proposal Two: Integrated Decision-Making

Integrated disclosure decision-making would allow the CPS, within its existing statutory functions, to refine and professionalise the disclosure process. This should have the consequence of reducing the opportunity for error and improving accuracy. Removing the evaluative role from the police in the disclosure process gives the CPS the central and directing role in the coordination of all stages of case preparation. Notwithstanding that the CPS’ current workloads are reportedly at unsustainable levels, a choice must be made within any democracy that cherishes the rule of law: is an adequately funded public prosecution service is an acceptable price to be paid to avoid injustice. 

Proposal Three: Rules of Thumb

Even if implemented in isolation to any other reforms, the introduction of presumptive ‘rules of thumb’ may prevent many of the issues raised regarding disclosure. Borderline questions of relevance should result in the material concerned being scheduled, subject to sensitivity considerations. Likewise, any doubts about whether to disclose particular material or not should be resolved in favour of disclosure and not deferred for later consideration of counsel. The positive duty to disclose is the essential foundation for any system of fair disclosure.  

Conclusion

The current system of disclosure is fractured along institutional lines, creating an unassailable opportunity for error in the application of disclosure. Official reports make concerning reading: HMCPSI’s investigation found faults in over 80% of disclosure schedules, labelling over 22% as “wholly inadequate.”

Furthermore, examples of near miscarriage of justice – caused by the sort of failures demonstrated in Allan’s case – shows that earlier recommendations and reforms have not had the desired effect. Without a real shift in thinking and the culture of prosecution authorities, disclosure will continue to cause both operational difficulties and risk of miscarriages of justice. The Allan case is but a tip of the iceberg. It is time for detectives to go back to the fundamental principles of independent investigation without fear or favour to ‘prove or disprove an allegation' on the basis of evidence rather than rhetoric.

In terms of practical solutions, continuing austerity and the drive for judicial efficiency and economy are unlikely to engender much enthusiasm for shifting the evaluative burden of disclosure to the defence, even though this would inevitably level the playing field. However, more fundamentally, through changing the statutory framework for disclosure and integration of the prosecuting model within the hands of the CPS provides for unification of responsibilities under a single directing mind and a platform for systematic and methodical evaluation of all available materials. The addition of presumptive ‘rules of thumb’ too would go some way to lightening the interpretive burden for decision-makers.

Equally important is the continuing role of both the defence and judiciary in ensuring that disclosure operates economically and fairly. The defence has a statutory duty to cooperate in the disclosure process but must equally remain vigilant in testing the prosecution's compliance with their disclosure obligations. Likewise, individuals must be held to account for personal failings through training and supervision but where it does occur evidence of bad faith must be pursued and eradicated.  

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Tagged: Courts, Criminal Law, Human Rights, Justice, Rule of Law

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