David Stern, joint head of financial crime at 5SAH, Paul Keleher Q.C. of 25 Bedford Row and Daniel Jackson at BCL Solicitors, provide legal analysis on the ongoing debate for Lexis Nexis PSL

A freedom of information request by the BBC has revealed ‘the number of prosecutions in England and Wales that collapsed because of a failure by police or prosecutors to disclose evidence increased by 70% in the last two years’. In 2017 alone, 916 people had charges dropped over a failure to disclose evidence, a rise from 537 in 2014/15. While the Crown Prosecution Service (CPS) has admitted to the steady rise, ‘there are systemic disclosure issues across the criminal justice system which require a collective and urgent effort’. Practitioners argue it is ‘incompetence and a lack of adequate training’ that has led to the dangerous situation of evidence disclosure failings.

In the lead up to criminal trials police and prosecutors have a duty to disclose evidence that might either assist the defence case or undermine the prosecution's, yet recently three high profile rape cases—that of Liam Allan, Oliver Mears and Isaac Itiary—collapsed or were halted after it was found that police had failed to share evidence with defence solicitors.

David Stern says: ‘In short, the current failures will inevitably increase unless there is a significant reversal in approach to these key areas’. A number of reasons have been highlighted as to why police have failed to pass on crucial evidence to prosecutors, but all agree that a critical lack of training, funding, education and the rise in social media saturation are just some of the reasons behind the 70% increase. 

Daniel Jackson explains that ‘it would seem that one of the key problems with disclosure can be attributed to the development in methods of communication, from mobile phones to the ever-growing arena of social media’. Paul Keleher Q.C. argues the reason for the high failure rate ‘is because austerity has so damaged the police and CPS that they are unable to carry out their duties in accordance with law’. 

David Stern concludes that it is certainly a complex job: ‘To do it properly requires an eye for detail, thorough training, sufficient resources and an ability not to be prejudiced against the defendant. Recent advances in saturation media also impact on the question of unconscious prejudice. Disclosure officers are of course human beings, largely trying to do good work in less than perfect conditions.'

The consequences for such a failure to hand over evidence are varied, but most crucially it can destroy a case. A CPS spokesperson said the number of dropped cases due to evidence disclosure failures represented just 0.15% of the total number of prosecutions. Yet they also admitted ‘that is still too many, however, and we are clear that there are systemic disclosure issues across the criminal justice system which will require a collective effort in order to bring about improvement’. 

As David Stern explains, the consequences for lawyers are also huge: ‘Barristers both for the prosecution and the defence get caught in the crossfire, rarely due to any fault of their own, if the prosecutor is not made aware of a particularly important piece of evidence, he cannot determine whether to disclose it’. Daniel Jackson agrees: ‘Any system that is under-funded and under-resourced will not work properly. The criminal justice system is no exception. The result is that guilty people will walk free and innocent people will be convicted, often with devastating consequences.'

Changes needed

Nick Ephgrave, the chief constable of Surrey, the force in charge of the Mears case, recently said in a blog post: ‘We have had a cultural problem with disclosure, where it is too often seen by police officers as a thing to be done at the end of an investigation-becoming subsequent to, rather than integral to, the investigation. Changing this mindset is an immediate challenge for us’. 

Counsel has been pushing for a long time to see change in disclosure. Daniel Jackson explains that a refocus on the disclosure test and appreciation that disclosure is an ongoing duty is needed: ‘This could be assisted by the roles of those with disclosure responsibilities being more defined and relevant training provided to identify the areas that not only need to be investigated but also reviewed as cases develop and further information comes to light’. 

Meanwhile David Stern believes ‘the only way to improve matters is to increase funding for training.

This article was originally published by Lexis Nexis PSL on 24 January 2018.  You can visit Lexis Nexis PSL here.

David Stern is a barrister at 5SAH and the joint head of the Business Crime Team.  His practice focuses on corporate regulation, business crime and serious fraud with a particular emphasis on financial services and insurance. David is ranked in Chambers & Partners in the field of Financial Crime (London) and is ranked in the Legal 500 as a leading individual for Business and Regulatory Crime (including Global investigations) (London).