Disclosure: Flaring up again

In 1999 I contributed a chapter on disclosure to Clive Walker and Keir Starmer’s edited collection, Miscarriages of Justice: A Review of Justice in Error. At the time I was exercised by the decoupling of criminal justice reform from the due process concerns which gave rise to the establishment of the Royal Commission on Criminal Justice in 1991 (the Commission reported in 1993).  The Royal Commission was an opportunity to respond to the systemic deficiencies which had contributed to a litany of appalling miscarriages of justice; it was convened in the wake of the release of the Birmingham Six.  Disclosure failures – where the prosecution did not properly reveal material to the defence –  were a recurrent theme in a number of the miscarriage cases, including the Guilford Four, the Maguire Seven, and Judith Ward. It is odd that the Commission, convened in such circumstances, should eventually have been followed by a disclosure law (the Criminal Procedure and Investigations Act 1996) which in effect co-opted of the defendant to the construction of the case against them through the (then) new defence duty of disclosure. But that is how things turned out then: the persistent political hum of ‘law and order’ came to drown out the rightful indignation at the wrongful convictions which were the genesis of the Commission. Meanwhile, there was an increasing focus on costs and efficiency: it made sense in that context to compel the defendant to get their cards on the table early. This would support case management and get things sorted speedily. Within that framework, disclosure starts to look like an essentially administrative matter – a transaction involving information, rather than a constitutional issue – one of the ways in which State power is rationally constrained and a fair trial made possible.

The disclosure issue has perhaps never really gone away. As recently as July 2017, a joint inspectorate report from HMCPSI and HMIC was less than glowing about police and prosecutorial practice.  But the catalyst for the current disclosure flare-up was the case of Liam Allan, who was charged with rape. His trial collapsed after the late disclosure of phone messages from the complainant which undermined the prosecution case. Responses to the case (see e.g., here and  here) have suggested that disclosure problems are endemic.

There are still sensible arguments to be had about whether the duty of disclosure on the prosecution is sufficiently demanding, or whether the defence duty is unduly onerous. Nonetheless, whatever the rules on disclosure …

  • The rules can only be effective if everybody responsible for following them really knows what they are doing. The quality of a prosecutor’s decisions on disclosure is dependent on the information compiled and provided by the police, which in turn depends on police understanding of their role and duties in this context. There do appear to be some issues with the sufficiency of police expertise here.
  • The rules can only be as good as the cultures in which they sit. Whenever rules invite a body to exercise judgement, the exercise of that judgement is informed by the norms, the occupational practices, the working suppositions of that body. Police cultures have moved on since the 1980s, but they are still relevant: disclosure is neither a high status nor a professionally senior police function; it is not directly associated with the ‘crime-fighting’ role which sits at the heart of police role-identity; indeed, it smacks (however inaccurately) of ‘helping the defence’; it might seem like drudgery. It should not be a surprise that the police end of the operation is problematic. It is for prosecutors to challenge the deficient provision of information by the police, but the HMCPSI / HMIC report suggests that this is not happening enough – that a ‘culture of acceptance appeared to prevail, where prosecutors tended to work with what they received’ (para. 5.2). Situate all this in the context of straitened resources, and it’s no wonder things don’t go well.

 

Trying to explain disclosure failures as a product of individual shortcomings – looking for ‘bad apples’ – will only get you so far. The issues here are better understood as systemic. Putting them right involves cultural change. Cultural change involves pain, time, resources – and imagination. In the context of disclosure, we might need a reawakening of institutional memory. The 1970s and 1980s miscarriage cases may be fading into history, but their lessons – including those on disclosure – must not.  The State end of the criminal justice system may need to learn and relearn them, and preferably without the need for episodic crisis. And the key lesson here is fairly basic: disclosure underpins fairness.

 

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