Why Disclosure Failures Can Affect Any Court Case

Posted onNovember 25, 2018

The Attorney General, Geoffrey Cox QC MP, recently published the Government’s Review of the efficiency and effectiveness of disclosure in the criminal justice system. The review follows the controversial collapse of numerous cases following failures by police or prosecutors to disclose evidence.

While the headlines earlier in 2018 initially focussed on a small number of high-profile rape trials, the disclosure scandal reached all corners of the UK legal system with, according to the Daily Telegraph, over 900 court cases dropped in one year (2017-18), a 70% increase over two years. The Crown Prosecution Service themselves admitted "systemic disclosure issues".

As Nelson Guest and Partners founder and previous partner Stephen Nelson puts it; “This is not solely about high proﬁle rape cases, it is endemic across the whole justice system.”

The Review found that “…the duty to record, retain and review material collected during the course of the investigation was not routinely complied with by police and prosecutors.”

Following the review, the Attorney General commented:

“For too long, disclosure has been seen as an administrative add on rather than fundamental pillar of our justice system. This ends now. My Review sets out practical recommendations and a clear plan of action which I will hold the leaders of the criminal justice system to account for delivering in their respective areas.”

More serious cases such as sex crimes unsurprisingly attract the most press, given the severity of the alleged crime and penalties at stake for the accused, but disclosure is a vital component of any trial. And, as with so many areas of the complex UK law, it is one where those self-representing in court can find themselves at a severe, unfair, and unnecessary, disadvantage.

'The purpose of disclosure is to make sure that both or all parties know of all documents that have a bearing on the case”. (from justice.gov.uk). So both defence and prosecution have a duty to reveal to the other side and the judiciary the documentation, physical or digital, on which their case will rely but also, critically, they are bound to reveal evidence which may be detrimental to their cause.

There are countless rules surrounding definitions, relevance and timing of submissions, and corresponding penalties for failure to comply. And given the complexity of the disclosure laws and guidelines it it understandable that errors, due to oversights or negligence, will sometimes occur. Furthermore, with significant scope for interpretation it is unsurprising that each side (prosecution and defence) will be more reluctant to disclose documents and digital evidence which could weaken their case.

This excerpt from the Justice Department's outlines describes the basics of standard disclosure:

Here, “document” means any form of recorded information, not just writing on paper. It includes, for example, pictures, emails, mobile phone texts, social networking messages or video-clips.

You must disclose all relevant documents

that you now have or
that you have had or
that are held by someone else who would be obliged to give them to you or let you inspect them or have copies of them if asked or
that were held by such a person

You must disclose documents that are harmful to your case just as much as those that are helpful to it.

You must actively search for disclosable documents that you may have, though you may limit your search to what is reasonable.

If one party considers the other's 'standard' disclosure to be inadequate they can apply to the court for 'specific' disclosure - an order by the court for a party to disclose hitherto unseen documents and/or carry out a search for such materials. This opens up another sprawling and complex area of court procedure.

The review calls for a ‘zero tolerance’ culture for disclosure failings across the police and the Crown Prosecution Service (CPS). While the relevant bodies plan the necessary systemic processes and procedures it seems likely the intricacies of disclosure law will remain under scrutiny for the foreseeable future.

In the meantime the fundamental dynamics of prosecution versus defence in the courtroom will continue, each side manoeuvring within the law's many interpretable parameters to secure the best outcome for their client, be it the state or the defendant. And given the undoubted skill and knowledge of most prosecutors, it remains vital, should you find yourself charged with a criminal offence, to enlist the services of an experienced, specialist criminal defence lawyer to balance the equation and ensure that your case is not unfairly weighted against you.

Disclosure is just one of many aspects of your defence where expert legal assistance is not just advantageous, it is essential. And remember, this does not only apply to sexual offences – it is acutely relevant to ALL court cases. If you want the best possible outcome, whatever the offence you have been charged with, then please contact Nelson Guest on 020 8309 5010 or by using our contact form. It's a phone call or email which could have a significant impact on your case.