In the last six months the press have reported on a number of cases that have collapsed due to the failure of the police to provide full disclosure to the defence. These cases have highlighted the failings in the disclosure process and resulted in a review by the prosecution of all serious sex and rape cases.
As part of this review, a total of 3,637 cases were assessed and 47 prosecutions were stopped in the review period due to the issues with disclosure of unused material.
The prosecution highlighted that the common themes included communications evidence such as text messages, emails and social medial posts being examined too late in the process, failure to obtain third party material and the emergence of new evidence
The director of public prosecution Alison Saunders said “getting disclosure right is a fundamental part of a fair criminal justice system“. She accepted that there were cases that had fallen short and that this was unacceptable.
The findings from the review came as no surprise to our defence team as we have to fight to obtain information on a daily basis that we feel will help our clients. The sorts of disclosure we have to fight for include access to mobile phones so that we can have them independently examined, copies of medical records, counselling records, previous complaints made by alleged victims and even statements given at the time of an alleged offence which help the defence or undermine the prosecution case.
It is imperative that defence lawyers take a proactive approach as this can mean the difference between a fair trial and a trial in which the process is flawed or unfair. Only this week we have had a case at Southwark Crown Court where no evidence was offered as we were determined in our fight for disclosure. We pride ourselves in leaving no stone unturned and our thorough preparation of cases regularly results in acquittals for our clients.
Another example was a recent case in which we suspected there was evidence on a victim’s mobile phone that would help our client’s defence. The CPS refused to allow us access to the phone and said that the police print out of all the relevant messages that they had provided, was sufficient.
We applied to the court for access to the phone and the judge granted our application. Our independent expert then analysed the phone records and found that the print outs provided were incomplete and that there were deleted messages that had not been provided. The end result was that the prosecution case collapsed with the CPS offering no evidence and our client was acquitted.
Prosecution failures to disclose information are not unusual and the challenge of securing adequate disclosure cannot be underestimated.
Whilst the CPS are taking steps to improve disclosure it is imperative that we, as defence lawyers, always challenge the prosecution and secure the disclosure we think is necessary to ensure our clients receive a fair trial.
As the Court of Appeal stated in the ruling in R v R and others 2015 EWCA Crim 1941 - “there should be active and robust case management applied to the initial stage of disclosure and that flexibility is critical, disclosure is not a box ticking exercise”.