Disclosure: a bar to justice?

Criminal lawyers are predicting an onslaught of miscarriages of justice cases as the result of the introduction of the controversial disclosure rules.
Concern is mounting about the effect of the disclosure provisions, contained in the Criminal Procedure and Investigations Act 1996 (CPIA), which came into effect on 1 April 1997. The provisions require the defence to rely on disclosure police officers to hand over what information they think is relevant to the defence.
Critics claim that the rules give the police the powers of judge and jury over what material is disclosed, making it just a matter of time before injustice rears its head.
Although it is too soon for cases to have gone through the system, there already exists much anecdotal evidence that relevant material is not being disclosed to the defence.
Criminal barrister Anthony Heaton-Armstrong, of 9-12 Bell Yard Chambers, delivers a damning indictment of the rules, claiming: “Any lawyer with experience of criminal law can see that the CPIA disclosure regime is hopeless and entirely fails to serve the interests of justice.”
Heaton-Armstrong, the meetings secretary of the British Academy of Forensic Sciences (BAFS), is conducting a survey of criminal barristers on behalf of BAFS and supported by the Criminal Bar Association, on how the new disclosure regime is working in practice.
Heaton-Armstrong says that the picture emerging from the 120 replies so far returned shows that the “worst fears of the insidious nature of the new regime are being realised”.
Simons Muirhead & Burton partner Brian Spiro says that history has proven that the application of strict disclosure rules leads to miscarriages of justice.
“Not long ago, a series of miscarriage cases came to light, all of which revolved around failure to disclose material,” Spiro warns.
“There is much scope – and some inevitability – that under the current regime similar types of miscarriages of justice will result.”
Before the implementation of the CPIA – under what was known as the “post-Ward regime” – the defence was allowed easy and comparatively open access to unused material. This enabled the defence to use its own judgement about the relevance of the material, either to undermine the prosecution's case or to advance its own.
Concerns over the burden this caused to the prosecution authorities – with defence lawyers going on so-called “fishing expeditions” which created extra expense and delay in cases – led to the implementation of the new Act.
Disclosure is now in two tiers and in both the defence has to rely on prosecuting authorities to disclose “relevant” unused material. On primary disclosure the police disclosure officer is under a duty to go through all the unused, non-sensitive material and list with “suitable particularity” all material which, in the prosecutor's opinion, might undermine the prosecution's case.
The schedule is served on both the prosecution and the defence. The defence, if it then requires secondary disclosure, has to supply a defence statement. Secondary disclosure of all unused material which advances the defence case is then made.
Defence lawyers say that the details of the unused material set out in the schedules are often not clear enough for the defence to make a judgement on their relevance.
David Corker, partner at Peters & Peters, says that a “real trojan horse” is created in the Act's Code of Practice. The Code requires the police only to retain the draft versions of witness statements if they “materially differ” from the final one being relied on.
Corker says that the prosecution authorities themselves decide what constitutes a “material difference” and adds: “There is little confidence in their subjective opinions.”
Such restricted access to unused material, he believes, makes it difficult to detect whether a miscarriage has occurred.
Many lawyers also argue that there are potential problems in the way that the police operate the arrangements. Claude Hornby & Cox partner Richard Hallam says: “There is no motivation or incentive for the police to help the defendant get acquitted. The police cannot be neutral. Nor can they be relied upon to understand the relevance of the material.”
Jane Hickman, partner at Hickman & Rose, says the police are not in a position to make the decisions required of them, and human error, whether unscrupulous or incompetent, is undermining the statutory disclosure regime on every front.
Criminal solicitor Girish Thanki, partner in criminal law firm Thanki Novy Taube, argues that there is also a “poor” relationship between the police and the CPS which needs “dramatic” improvement. “The CPS are not pressing the police hard enough,” Thanki claims.
A spokeswoman for the Crown Prosecution Service says that it has already held a “massive” joint education programme with the police and will be using its recent launch to 42 areas to re-focus on the disclosure issue.
There are provisions under the Code of Practice for the destruction of documents within “a strictly controlled and short time frame”. This, many argue, creates a danger that if there is some impropriety in disclosure the opportunities for discovering this after some critical date will be lost.
A further part of the disclosure regime causing concern is the increasing reliance on withholding material on public interest immunity (PII) grounds. If there is “relevant” material which the prosecution does not want to reveal it can apply to the judge to have it concealed on PII grounds.
According to Darlington & Parkinson partner Robert Brown: “PII certificates are now handed out like confetti.”
Girish Thanki agrees, claiming: “Anything that will show up police tactics, or which is even slightly critical of the police, is now immediately banded into immunity, and even more worrying is that now the defence is often not being told under which category it is seeking immunity.”
It is not only the increasing use of PII certificates which is disturbing lawyers, but the mechanism by which the judge makes the decision. The application is made ex-parte and is often in camera. “This is inherently undesirable as it provides a climate which is capable of nurturing the inclination to mislead because it will not be discovered,” says Brown.
Although it is too early for any cases governed by the CPIA to have been challenged in Europe, the procedure for deciding on the non-disclosure of material on PII grounds is currently before the European courts.
In Rowe & Davies v UK – the M25 murder case – the European Commission unanimously found that the defendants had had an unfair trial because material had not been disclosed to the defence and the court.
The Commission said there had been a violation of article 6 of the European Convention on Human Rights (the fair trial provision) and has referred the case and two others, Jasper v UK and Fitt v UK, to the European Court of Human Rights.
In a view echoed by many practitioners, criminal barrister Ben Emmerson, of Doughty Street Chambers, says: “There are serious doubts being expressed as to whether aspects of the CPIA's disclosure regime are consistent with Article 6.” The requirements for disclosure under the Convention and Strasbourg case law are far broader than under current domestic law, he believes.
With the Convention set to be incorporated into the Human Rights Act, many lawyers involved in the case feel that the CPIA in its current form may prove to be unsustainable.