Transparency data

Justice victims' rights roundtable: 26 March 2024 (accessible version)

Updated 20 August 2024

Attendees:

Chair: Jonathan Fisher KC

Host: Fiona Rutherford – Chief Executive, JUSTICE

Emma Torr – Co-Director, APPEAL

Lucy Anderson – Which?

James Burley – Investigator, APPEAL

Alex Davidson – Barrister, Red Lion Chambers

Anita Clifford – Barrister, Red Lion Chambers

Home Office officials

1. The Review noted that it was interested to hear from rights and victims groups. In cases where a guilty party appears to walk free owing to a disclosure issue, this had an unfortunate impact, undermining confidence in justice. The problem on the other side – when an innocent person was convicted – was also acknowledged. A further issue arose where a complainant attends court to give evidence, namely how unused material disclosure is to work where it involves revealing private information which would normally be protected by the DPA. It was important not to discourage complainants from coming forward. Redacted information should be looked at and consideration given to whether it could in fact take matters forward.

Appeals against conviction

2. Both Appeal and the Criminal Cases Review Commission (‘CCRC’) took the view that disclosure failings are the most common cause of miscarriages of justice in this country. It was noted that Appeal’s work tends to focus on those who claim factual innocence seeking a fresh argument or evidence to take to the Court of Appeal. The post-conviction disclosure regime makes it difficult to get access to any information at all. It was also mentioned that real problems exist with the ability of lawyers to get access to material that may undermine the safety of convictions.

3. Participants were of the view that issues exist with the current disclosure regime, requiring root and branch reform. Unless the regime can be improved in various ways, it could lead to further miscarriages of justice. It was mentioned that reviews have taken place since 1996, and all have found that the regime is not working effectively, yet there has been no plan for substantive reform. This was raised as a concern.

Keys to the warehouse

4. The question was posed whether the ‘keys to the warehouse’ approach would work in cases with high volumes of material and large amounts of digital material. In response, it was observed that the police must grapple with this at present anyway, but it would be better if the defence had the opportunity to do so as well. It was suggested that technology has to be used to make the task more manageable and this is feasible with proper resourcing.

5. It was noted that case law was moving towards the ‘keys to the warehouse’ approach prior to the CPIA. However, it was noted that this would require proper resourcing. Another concern around this approach was that there is an expectation of the police to perform their duties, although there was some hesitance as to the extent these duties are fulfilled. This led to participants raising whether the police should have the power to act as a filter, instead, suggesting that the defence should be allowed to see the material that is not deemed sensitive. It was suggested that this approach would see less trials collapse due to greater transparency.

Police and disclosure

6. It was suggested that the key issues leading to disclosure failures were as follows: the current regime places police as gatekeepers to obtain, retain and disclose unused material. In cases involving disclosure failures, the blame lay chiefly with the police. Police are not independent but have a stake in obtaining a conviction. Whilst the system allows for independent counsel review, it is impossible for any lawyer to make a common-sense decision about what documents ought to be disclosed if material is not properly recorded. Participants recognised that the burden is placed on both the police and prosecutors to look at the defence statement and decide what should be disclosed as capable of assisting the defence case or undermining the prosecution case. However, concern was raised as to whether the police and prosecutors are rightly placed to do this. Previously, there was a system where the defence could inspect unused material. It was mentioned that giving the defence the opportunity to inspect might be a good start. In addition to this, Police should receive better trained in relation to scheduling. In turn, a competent lawyer should then be able to inspect and identify disclosable material. It was suggested that the prosecution should more freely share material with the defence, returning to a former model of disclosure.

7. Discussion turned to redaction. It was argued that redaction is a question of relevance in every case. In each case, there would be issues in contention between the prosecution and defence. Not every piece of unused material would be relevant. If material was properly scheduled, the defence could request it.

8. It was emphasised that, whilst there is a resource point, there is also a fairness point to be considered. Everyone lacks resources, but that is a different question to that of fairness to a defendant at trial. If we want a system where disclosure is better handled, a more open system is one that is right for the moment.

9. It was proposed that, rather than the police still being relied upon to determine what should be scheduled, the entire file should be passed to the CPS to review. In the Malkinson^{[footnote 1]} case, material which was important was not scheduled. As to whether this was due to incompetence or malevolence or somewhere in between, it was always naive to expect police to fulfil disclosure issues - they were dead set on a conviction. To expect full and fair disclosure was unrealistic. In Malkinson, the disclosure officer was the officer in the case.

10. Participants further discussed policing, expressing the view that current police funding incentives convictions, and this is likely to increase the chance of wrongful convictions. Some were of the view that culturally the police are blind to material that may assist the defence. It was agreed that police officers are only human; if they charge a person, they do so because they think that they have committed the offence. It was then discussed if whether, having charged a person, officers would be able to continue delivering upon their disclosure obligations in a fair manner. It was suggested that there was more than a ‘bad eggs’ problem, which was unlikely to be solved by means of reviews and attempts to change the culture of policing: police were inherently incapable of performing their disclosure duty.

11. A further problem raised was that prosecutors do not speak to police: nowadays, communication is primarily via email. This is problematic because of the level of ‘back and forth’ which is able to take place. However, it was recognised that the problem is not going to be solved by training police officers alone. Participants were aware that there might be human errors and mistakes may be made which are critical to the defence. However, if safeguards are going to be put in place, giving the defence the opportunity to inspect material is the safeguard that is needed.

Consumer crime

12. It was noted that bodies such as Trading Standards have been advised that, when bringing prosecutions, it is imperative that they get the disclosure regime correct and a failure to do so may scupper the case. Trading Standards’ annual report showed that they were only able to manage a handful of cases. This was partly due to the disclosure burden, but not exclusively. Another factor is a lack of confidence in the ability to successfully prosecute financial crime. It was also observed that almost all cases that are reported to Action Fraud are not investigated, let alone prosecuted and that complainants are often more keen to get their money back than go through a lengthy prosecution process.

13. One participant recalled a case in which a sentencing judge had declined to consider a victim impact statement presented to the court, holding that it was not relevant. The defendant was sentenced to a two-year suspended sentence order for an offence which involved scamming thousands of elderly women. It was acknowledged that the process has to be fair but consumer crime and especially fraud is epidemic. The system needs to work for all types of crimes and all types of prosecutors.

14. It was noted that local authorities still bear responsibility for prosecutions, but Trading Standards play a role in supporting the local authorities concerned. Some companies have liaison arrangements with particular local authorities. However, allocating cases to a prosecutor is not necessarily straightforward.

Post conviction disclosure

15. Post-conviction disclosure was discussed. The key authority on this issue (Nunn^{[footnote 2]}) was noted. It was also noted that the Attorney General’s Guidelines on Disclosure contain provisions on the post disclosure regime. In the majority of cases where disclosure failures occur, the post-conviction disclosure regime does not always help. Usually, disclosure failures would be unknown to the defence and they would not know of the existence of material which ought to be disclosed. As such, they are often unable to meet the Nunn disclosure test.

Concluding remarks

16. Finally, it was suggested that if material is relevant and non-sensitive, it should be shared with the defence, as they are best placed to know what they are looking for. Some were of the view that the trial process had huge privacy implications but the right to a fair trial had to come first and should not be sacrificed in the name of privacy. Some thought that this approach would save the police and CPS time and money. Others believed this was not the case, as law enforcement still needed to review all material in order to build a case, and a ‘keys to the warehouse’ approach would create duplication, swamp legally aided defendants, significantly increase cost to the public and run contrary to belief that the prosecution must bring and prove the case.

1. R v Andrew Malkinson [2023] EWCA Crim 954 ↩

2. [2014] UKSC 37 ↩