Disclosure: what goes on?

The Director of Public Prosecutions is scrambling to catch up. A string of defendants have seen their cases dropped after the late disclosure of material that undermined the case against them. Alison Saunders’ response has been to announce a review into all forthcoming rape trials. How have we got here? Cuts to the funding of the criminal justice system have undoubtedly played a part, but there are more profound problems; first, there has been a toxic mix of ever more complex material being found during investigations and, second, those responsible for assessing and disclosing that material have no motive to do so.  The complexity most often comes from the vast storage capacity of smart phones or from ever-present CCTV cameras. The lack of motive arises because police, and on occasions prosecutors, have a belief and commitment to the case they have painstakingly assembled and often yield to the temptation to let that infect their judgment of what will and will not undermine that case; it is all too easy to explain away an inconvenient text message or not notice an unhelpful piece of CCTV if one is partisan and knows the judgement made will never be subject to open scrutiny.

For no reason she has yet articulated, the DPP has explicitly said the current scandal does not lead her to worry that there may have been wrongful convictions. It is implicit within her decision to confine her review to rape cases that all other criminal investigations are somehow magically insulated from these problems.

Three questions arise. Is the current review an adequate answer to the problem? Are past convictions touched by these failings? What can a practitioner do? The answers that we at Doughty Street’s Crime Team would give are no, yes and watch this space. Over the next few weeks our team of experienced and expert barristers will be posting short pieces on how disclosure failings affect cases of sexual offences, terrorism, fraud and appeals. We hope they will help.