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Published: Fri, 02 Feb 2018
Criminal Evidence Justice
Dissertation on the Disclosure of Evidence in Criminal Cases in England & Wales. On whose idea of justice is the system based?
This essay will examine the laws and procedures relating to the disclosure of evidence in criminal cases in England and Wales. Has the government’s introduction of legislation in relation to disclosure found a fair balance between the rights of those who are accused of criminal offences and those charged with their investigation and prosecution. It will discuss the development from principles based on common law through to critical analysis of two main pieces of legislation introduced to deal with the subject. In particular it will examine the responsibilities of both the prosecution and defence to meet their obligations in relation to disclosure and discuss the fundamental role played by the disclosure officer.
Chapter one, will consist of an introduction to the subject of ‘disclosure,’ a brief history including some relevant cases which lead to the introduction statutory codification of disclosure in the form of the CPIA in 1996. This chapter will also consider the maxims of English law in relation to the principle to being innocent until proven guilty and “necessitas probandi incumbit ei qui agit” that is, the burden of proof lies with the accuser discussing the development of this doctrine through relevant case law in relation to disclosure. There will be some discussion on how disclosure is perhaps part of a wider covert policy to seemingly limit the rights of those accused of criminal offences, firstly by the restriction on the right of silence and the introduction of special warnings that appear to be more akin to political manipulation than justice. This chapter will consider if there were genuine reasons based on research that justified the introduction of disclosure legislation.
Chapter two will critically analyse the operation of the CPIA96, discussing comments from various sources such as academics and using the CPS’s own directorate report as well as discussing the views of other legal commentator’s. There will also be some comment from newspaper articles throughout the paper.
Chapter three will discuss and critically analyse the CJA03 in relation to the implications for changes to disclosure including comment following the introduction of the Human Rights Act 1998.
Chapter four, will be the conclusion based on the evidence gathered, commenting on how the rules on disclosure has developed since the introduction of legislation, looking at the role of various players within the criminal justice system and consider if as fair a balance as possible has been achieved.
This paper will concentrate only on the information in a criminal case that the prosecution and defence provide each other ‘pre-trial’ in Crown Court cases and in particular the obligations on the prosecution to supply ‘unused’ material to the defence, and the defence to provide a ‘defence statement’, to the prosecution all of which will be examined and explained in detail later.
During a criminal investigation the police have traditionally been charged with the role of ascertaining whether a person should be charged with a criminal offence and if that person is guilty of it. It therefore follows that generally the police have always been perceived as an agent for the crown and the prosecution in an adversarial rather than inquisitional manner. During any such investigation the police may either gather or beware of a large amount of material such as CCTV footage or witness evidence that it does not intend to use as it does not support their case, this is ‘unused material’. It is the awareness of this material by the prosecution and subsequent lack of disclosure to the defence whose case it may assist, whilst insisting on defence disclosure of its own case is the very crux of the disclosure debate.
It has traditionally been held in English law that a citizen who was a suspect was under no ‘duty’ to assist the police (or any other criminal investigators for that matter) and committed no offence in refusing to do so. Generally this has meant that the defence has not had to divulge any details of the case on which they intend to rely, merely being reactive to the prosecution case when presented. Some commentators have considered this principle having “near constitutional significance” within the English legal system. This principle is often referred by Viscount Sankey’s maxim, as ‘the golden thread that runs through English law’ or the ‘Woolmington principle’. This principle is closely linked to the fact that there is without doubt an ‘inequality of arms‘ in any criminal prosecution. Lord Devlin identified that in criminal cases the “state has in the police, an agency for the discovery of evidence, superior to anything which even the wealthiest defendant could employ”.
Prior to the 1990’s the common law had only developed a limited number principles concerning disclosure, mainly on the prosecution burden, there was little actual authority for the disclosure of evidence. It is suggested by Sprackthat as our adversarial system relies on progression at court, it made sense for the prosecution to outline its case, although the Court of Appeal had held there was no actual obligation to do so. The Devlin report agreed, in 1976 it found that “until 30 years ago, no authority existed for the proposition that there was any duty at all”. The authority referred to was based on two cases in 1958 in which the trial judge ordered only very tentative disclosure of particular material to the defence. In R v Clarke the Court of Appeal criticised non disclosure of an earlier inconsistent description regarding identity, but this was a very distant precedent to relay on. The situation was further confused by Dallison v Caffery, a civil case in which the Court of Appeal considered the significance of the failure to disclose statements obtained by the police supporting the defendants alibi. They considered if this failure amounted to prima facie case of ‘lack of honest belief’. The Court of Appeal unanimously found it did not, as the police had handed over the statement immediately after committal, however they then as O’Connor comments “muddied the waters for ensuing decades” by commenting obiter generally on the duty of the prosecution to disclose. Lord Denning MR contended, “that the prosecutor must either call that witness himself or make his statement available to the defence. It would be reprehensible to conceal from the court evidence which such a witness could give”.
Although there were concerns over the lack of disclosure leading to many miscarriages of justice the Government’s only response was to introduce legislation in 1967 regarding the disclosure of alibi evidence by the defence to the Crown, and later expert evidence.
By the 1970’s one of the main problems acknowledged was the total imbalance of the resources available. The police, unsupervised had a virtual monopoly over the immediate investigation and the collection of any information. The defence under this system could only ever play a reactive role, the defence lawyers would not know the case they have to meet until the service upon them of the prosecution witness statements. This placed an almost impossible burden on the defence to ensure that the jury who ultimately have the constitutional duty to consider all the facts were fully aware of all the evidence. This virtual total control of all the information gathered started to contribute significantly to the majority of some major miscarriages of justice such as R v McIkenny and others (the ‘Birmingham Six’).
During the 1970’s a number of Irish dissident groups led mainly by the Irish Republican Army (IRA) carried out a number of bombing campaigns on the British mainland which resulted in a large loss of life, injury, and damage to property. There was as would be expected considerable public outrage and condemnation of these atrocities and no doubt immense pressure on the police to catch and prosecute those responsible and bring to an end the indiscriminate murder of members of the public.
The case of R v McIkenny and others is significant in highlighting a number of failures on the part of the prosecution but in particular the over reliance by the prosecution on their own expert evidence and a lack of transparency in the investigation, (something that even after all the legal changes and safeguards appears still to occur today). The trial of Mclkenny and Others was based almost entirely on the Crowns reliance on an assertion by their expert Dr Skuse, that his ‘Greiss’ test was ‘specific’ for the presence of nitro-glycerine. He gave evidence that he was 99% certain of this assertion. In fact, one of his colleagues Dr Bamford had managed to obtain positive results using the same test from persons unconnected to the enquiry. The results were dismissed as irrelevant, they were explained as a ‘false positive’ the fact that there were ‘false positive’ results remained undisclosed at trial and at an unsuccessful appeal in 1987. Although other important material was unearthed which served to undermine the integrity of the alleged confessions of the accused it was the discovery of the information from Dr Bamford which destroyed the credibility of Dr Skuses’ basic premise and was the basis for the quashing of the convictions in 1991.
The case of R v Maguire & Others (‘The Maguire Seven’) was again based entirely on the scientific evidence produced by the prosecution that showed positive in the handling of explosive material. The prosecution was in fact in possession of further test results that showed negative. What was significant in this case was that repeated requests from the defence to look at the scientists records including the positive results were either ignored or refused. O’Connor comments that one of the most disturbing facts was that much of the evidence contradicting the earlier tests was available at the time of the first appeal in 1982.
In 1976 the then Attorney-General under pressure to answer the House of Commons in relation to identification evidence said, “where the proceedings are instituted, the Director will, subject to the requirements of the public interest, continue his practice of making available to the defence any material likely to assist the defence”. This statement was in practice blatantly untrue and the House clearly misled.
In 1981 the Philips Commission was charged with examining ‘criminal procedures’ the report revealed a disturbing state of affairs regarding disclosure. The Commission found inconsistencies between the various police forces and prosecuting authorities in what was disclosed to the defence concluding ‘there are considerable variations in matters of detail’. As a result of the findings of this commission the government was later to introduce PACE although no legislation was considered regarding disclosure.
The first major attempt to establish some consistent policy and practice in disclosure appears to be the Attorney-General’s Guidelines issued in 1981. Although not law, the Court of Appeal was prepared to quash convictions because of breeches of them. The guidelines issued advice on the disclosure of unused material including allowing the copying of any items under 50 pages, or inspection by the defence of those documents over 50 pages having removed any sensitive material, however it gave discretion to the prosecution not to make disclosure on a number of issues, “including a ‘belief’ that the defence may be trying to persuade a witness to retract their original statement, or to disclosing a statement believed to be untrue which may be needed to rebut any further statement given in evidence to be used in cross examined”.
There are a plethora of other relevant cases which highlight the lack of disclosure, many with tragic consequences. Two which can be used to summarise the main problems are that of R v Kiszko who in 1976 was convicted for the murder of an 11yr old girl. The main evidence against him was his alleged confession which he later denied at court. His conviction was quashed in 1991 after it was established that evidence stored by police included the child’s underwear which contained semen. It was known by the police that Kiszko had mental age of twelve making his confession at best unreliable, more worrying was that they knew he suffered from a physical condition making him incapable of producing semen.
In R v Ward Judith Ward was convicted of causing the death of twelve people following an explosion on a bus and injuring others following similar incidents. Her conviction was based both on confession and scientific evidence, at her appeal in 1993 it came to light that a scientist had altered records to make the results seem more conclusive, Ward herself was also prone to flights of fantasy. As part of her acquittal the Court of Appeal laid down news rules thought by many at the time to much in favour of the defence it was binding on investigators, prosecutors and expert witnesses to disclose all material relevant to the case, including such matters as experimental notes or findings which contradict or undermine the expert evidence. Although the decision in Ward has now been superseded by the disclosure scheme set out in the CPIA96 the case is historically important in drawing a link between the lack of disclosure and miscarriages of justice and how the Common Law was slowly developing to deal with it.
By the 1990’s public disquiet over many miscarriages of justice led some commentators to feel the need for some legislative intervention to redress this imbalance. What actually occurred though could be said to be quite the opposite. A Royal Commission (the Runcimen Commission) on Criminal Justice made several recommendations in favour of a mutual disclosure of both the defence and the prosecution. This overturned the developments made in recent cases such as Ward. The Commission’s recommendations were to reduce the duties of disclosure made by the prosecution and place new obligations on the accused to disclose his defence to the prosecution. It claimed the law was unbalanced as it required substantial disclosure from the prosecution in return for minimal disclosure from the defence. The prosecution duty to disclose unused material was said to be ‘wastefully burdensome’ on the police and prosecution. It was claimed the defence would demand large scale disclosure of material from police files in order to conduct ‘fishing expeditions’ in the hope of finding some basis for fabricating a defence. There was disquiet expressed over the requirement to disclose information which could cause the prosecution authorities to choose between disclosure and the public interest. Finally it was argued that to allow the defence to reserve its case until the day of the trail was bad for the administration of justice because neither the judge nor the prosecution would have a clear idea what the issues would be. In their articleMcConville and Bridges criticised the findings of the report and Professor Zander one of the report’s authors wrote a note of dissention to the Commission.
The first restrictive measure to follow involved the ‘right of silence’. That is, the right not to incriminate yourself during an investigation without penalty from any adverse inference being made, it was after all the prosecution’s duty to prove their case. The Government of the day, like many before and after them wanted to demonstrate tough polices on crime and offenders. The Home Office working group paper published in 1989trailed specific proposals, however the Runcimen Commission was at odds with the governments’ expectations on this and felt no change was needed,however despite this the government enacted the Criminal Justice and Public Order Act 1994 (CJPOA). Sections 34-38 of this Act were according to Roberts & Zuckermanthe “legislative fruit of well rehearsed objections to privilege against self incrimination”. They also suggest this was very much an ‘artificial legal refuse for the guilty’, it was however an obvious target of abolitionist reform for governments boasting ‘law and order’ credentials. The introduction of this legislation in 1995 resulted in a change of the ‘caution’ given by the police. That is the words read to those arrested and interviewed in the course of a criminal investigation. The words “it may harm your defence if you do not mention when questioned, something you later reply on court” were added. This addition to the well established phrase of “you do not have to say anything” meant that should a suspect be questioned and refuse to supply an answer to a question asked, it would invoke an adverse inference to be drawn as to why he remained silent, or if an explanation was given later, why hadn’t the defendant given that explanation at the time he was asked. Sec 34 of the Act also allowed inferences to be drawn by the prosecution over an accused refusal to explain certain marks found, such as blood on items of clothing or marks found at the scene of a crime such as DNA and fingerprints, even a person’s presence at or near a scene of crime. Although widely anticipated these changes were controversial, for the first time they required advance disclosure in the form of an explanation from an accused or else they exposed the risk of an adverse inference. Leng does suggest this Act may have had one positive benefit for a defendant in that it encouraged the police to be more open in their initial disclosures as for an adverse inference to be drawn the accused must have had an opportunity to consider the evidence put to him. A later case in 2003 of R v Howellindicated that even where a defendant had an explanation for his silence, he was advised by his solicitor, the court would still draw an inference, a decision that seems based more on encouraging defendants to cooperate with the police than fairness.
Following on from the CJPOA the government introduced The Criminal Procedures and Investigation Act 1996 (CPIA) as part of what they suggest was the continued attempt to redress the perceived imbalance between prosecution and defendants rights. Michael Howard the then Home Secretary said at the bills second reading “it was designed to restore the balance in our criminal justice system to make life tougher for the criminal and improve protection of the public”. The Act contained a formal codification of the disclosure process and for the first time placed a large burden on the defence to disclose their pre-trial case. However even before the introduction of the CPIA96 the common law had moved on from what was thought to be the liberal disclosure regime post Ward. In R v Keane the Court of Appeal continued with the idea of placing a duty on the prosecution to consider all items of unused material, but accepted they only needed to disclose if they could be seen to be relevant or possibly relevant to the defence. They suggested that the more information the defence supplied regarding the reasons for any request for sensitive material the most chance the prosecution and judge would have to access its importance to their case.
Having replaced the common law rules on disclosure under the CPIA, disclosure remains one of the most troublesome aspects of the criminal process.The Act itself was vague in its requirements relying more on the detail contained within the Code of Practice, which did not form part of legislation but is prepared by the Home Secretary under powers given to him by the Act. Ultimately means the legislation could be interpreted narrowly or broadly with the government favouring a narrow approach. There was so much concern expressed over the operation of the CPIA96 by judges, prosecutors, defence lawyers and academic commentators that the government commissioned research into the disclosure schemeand in 2000 the Attorney-General issued guidelines. These were described as ‘clarifying’ the disclosure responsibilities of the various players within the criminal process. However in reality the guidelines, if followed involved a substantial modification of such responsibilities.
Redmayne suggests that part of the problem is the understanding the role of the prosecutor. On the one hand we want prosecutors to pursue criminals vigorously, but on the other we realise that a prosecutor should play a neutral role acting as a ‘minister of justice’ looking out for the interests of the defendants, due to the ‘inequality of arms’, a role endorsed by the House of Lords in H & C,where it discussed disclosure of sensitive material. The Court held that they had to consider whether to allow partial or full disclosure to a defendant, a balance between secrecy and the defendant’s right to a fair trial, something the prosecution should assist with by considering what might assist them even if not being used by the prosecution.
In practice this twin role can lead to deep tensions, but in theory there shouldn’t be any conflict as prosecutors should have no interest in convicting the innocent. Redmayne refers to this in terms of the prosecution being the trustee not the outright owner of evidence in their possession.However, one problem which separates theory from reality is where matters are not clear cut and evidence of innocence should be tested at a trial, here lies a major problem as due to the adversarial nature of our justice system there may be reluctance for the prosecutor to disclose everything to the defence pre-trial.
The requirement under the code that investigators should pursue “all reasonable lines of enquiry” does according to McConville and Wilsonrepresent a significant challenge to the practices of the police. They point to studies of investigative work and case construction that suggests that once the police have identified a suspect there is a tendency to simply collect evidence pointing to that suspect and ignoring alternative hypotheses and lines of enquiry these might suggest. This requirement is designed to stimulate the seeking of evidence that may assist the defendant. Whether the creation of this duty will have the desired effect may be doubted. The code does not contain any form of sanction for breach of this duty and historically legislation has not been successful in changing entrenched police culture and practice, in any event the code only applies to ‘reasonable lines of enquiry’ leaving the it easy for the police to suggest with limited resources they are best placed to judge what enquiries to pursue.
The pivotal role in the disclosure of unused material lies with the police, not the lawyers who can only prosecute on the information they are supplied with. The key role of the disclosure officer has been severely criticised. This is because it is their duty to compile the lists or schedules of unused material,research has shown a disturbing fact that unused material is often completely missed from these lists.
In their studyPlotnikoff and Woolfson’s found that in the majority of cases the prosecutor judged the descriptions on the principle schedule to be poor, and only good in three percent. The A-G’s Guidelines repeatedly emphasise the need for prosecutors to review the work of disclosure officers, but Plotnikoff and Woolfson’s found that CPS prosecutors did not generally have the time or resource to chase up poorly produced schedules, the result being that they were not able to make informed decisions about disclosure. McConville and Wilson suggest it is not clear what would motivate prosecutors to do this in any event, they argue that if an item is missing from a schedule how will a prosecutor know about it in the first place and if it is poorly described how can they possibly appreciate its significance. Plotnikoff and Woolfson’s research also showed that in 80% of cases involving volume crime, the disclosure officer was also the officer in charge of the case, this dual role often placed officers under pressure to complete case files and lacked the objectivity required to compile the disclosure schedules accurately. The most prevalent problem identified was failure by the police to actually include material in the first place, the MG6C disclosure of non sensitive material was classified as ‘poor’ in 73% of cases examined. In only 3% of cases examined did the prosecution pass onto the defence the previous convictions of the witnesses they intended to use as part of their case. As one disclosure officer put it when interviewed, ‘Disclosure has become a nightmare. The submission of a crime file used to be the end of an investigation. Because of the CPIA, it now begins a process which engulfs the officer’. Perhaps not surprisingly nearly half of the officers questioned felt they needed better training and nearly a third wanted greater clarification and guidance on categorising the schedules used.
Whilst failings on behalf of the prosecution were more prominent, there were also failing on behalf of the defence. In only about half of the cases reviewed did the defence produce a defence statement compliant with Sec 5 of CPIA however further information was only requested in 6% of these cases. Redmayne comments that although failure to disclose a proper defence statement prior to trial can attract legal sanctions in practice judges were extremely reluctant to do so.One way to judge this he contends is that although there is a huge amount of case law resulting in the inferences surrounding the ‘right to silence’ previously discussed in the CJPOA04 there appears to be relatively few reported cases surrounding defence statements, such R v Tibbs.One reason for this could be that the defence statement is produced for the defendant not by him and at that time did not require his signature in R v Wheeler he ran a different defence to that in his statement which he disowned, the court recommended that in future defence statements should be signed to confirm ownership and negate this problem, however in R v Crown Court Maidstone the court was found to have no legal power to require a defence statement to be signed as there was no statutory authority under the CPIA96 requiring it, therefore the court had acted Ultra Vires in requiring signatures something now addressed by the CJA03.
The government were not happy with the courts apparent leniency over incomplete or inaccurate defence statements. A white paper ‘Justice For All’suggested that defendants be made to meet prosecutions costs where they have failed to give their legal team instructions to meet the requirements of defence disclosure, quite how those defendants perhaps already on legal aid, possibly unemployed or on benefits were ever going to be able to pay is difficult to comprehend, fortunately with the introduction of further legislation this measure was not been taken forward but indicates the feeling regarding the issue, of course no similar sanction was mooted in respect of prosecution delays.
Plotnikoff and Woolfson concluded that there was widespread poor practice in relation to police and CPS procedure in relation to disclosure. They discovered a complete lack of trust between the main players as well as a fundamentally different approach to the principles that underpin the CPIA. The felt that ‘the practical effect of the disclosure requirements has been to place heavy burdens on the investigating and prosecuting authorities, with results which may not be in the best interests of justice.’
A problem for the prosecution is that whilst they should disclose to the defence evidence of innocence, in practice it may not be obvious whether something is such evidence or not. Paradoxically the defence are usually the best judge of whether or not the unused evidence supports its case and this should point to a wide test of relevance. Redmayne suggest that the premise ‘if the prosecution case can be made to look weak it deserves to fail’ is going too far, McConville and Wilson suggest that the prosecution should disclose all the evidence in their possession, an approach agreed by the ECtHR in Edwards . This open access approach was also favoured by Auld LJ, who points out that modern technology should allow documents to be made electronically without the need to transport vast amounts of paper. A major concern is what happens if this allows defendants to construct a fictitious defence by sifting through all the material gathered. Even if it is agreed that the criminal process should not be used to allow the guilty to construct a fictitious defence, the point remains that the defence are still in the best position to judge what is relevant to its own case and a wide disclosure should still be given. As Quirk points out, there are only a number of defences for any given offence in any event.
The CPIA made no changes to the principle of disclosure involving public interest immunity (PII) and the principles here are well settled. In essence it is the role of the court to be the ultimate arbiter of all PII claims. The prosecution should bring all potential relevant evidence for which a PII claim is being made to the judge’s attention. It is for the judge to decide whether or not material should be disclosed a question he should keep under review as the trial progresses. This does of course pre-suppose the judge and the prosecutor are aware of the material in the first place. In Davis Johnson and Rowe the Court of Appeal set out three different procedures for dealing with PII claims, type 1, the defence will be informed of the application and the type of material involved, allowing them the opportunity to present an argument for its disclosure at court. Type 2 procedure is where it is thought that informing the defence of the type of material involved will ‘give the game away’, for example by alerting the defendant that one of his associates is an undercover police officer. In this case the PII is held ex parte with only the prosecution presenting an argument to the judge. In Rowe and Davis v United Kingdomthe European Court of Human Rights (ECtHR) emphasised the importance of informing the trial judge of what material was being withheld. Only then is the judge in a position to ensure he can safeguard the fairness of the proceedings. In the most sensitive of cases type 3 procedures can be used. In these cases the defence is not even made aware of the fact a PII application is being made. Redmayne suggest these types of hearings are rare.Plotnikoff and Woolfson found only 3% of PII hearings were of this typethe CPS put the number at about 20 per year. It is still uncertain whether type 3 PII applications are complaint with the European Convention on Human Rights under Article 6, the right to a fair trial, the problem being, if the defence are not aware of the hearing in the first place how can they ever appeal the matter. Here again the prosecutor is asked to play the role of ‘Minister of Justice’ looking out for the defendants rights, which has been seen is not ideal in an adversarial system.
Another area of criticism is that of early disclosure, the CPIA says nothing about the duties of the police or prosecution prior to primary disclosure, which as stated only takes place as reasonably practicable after a not guilty plea or committal to the crown court. Redmayne argues this is an important topic beginning to be developed by the courts. R v DPP (Ex p Lee)the court recognised that prosecutors need to keep disclosure under review even before the duties imposed by the CPIA take effect, for example they might need to make an early disclosure of material that might assist in a bail application, or an early application to stay proceedings, locating eye witnesses whos
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