You may not have noticed that last week was “National Disclosure Week.” I had no idea that there was such a week until the Crown Prosecution Service started tweeting about it last Wednesday.
According to Exeter University’s Centre for Evidence Based Justice’s registry of miscarriages of justice, the second most common single factor in all British miscarriages of justice over the last 50 years – featuring in at least 28.5% of cases – has been “inadequate disclosure” of evidence capable of assisting the defence. It has almost certainly been a factor, if not the most important, in many more cases than that.
In our criminal justice system prosecutors are expected to perform an awkward double act. They are charged with trying to prove guilt. They are also responsible for handing over material to the defence which might suggest innocence.
In principle there should be no contradiction between the two roles, both of which are necessary if justice is to be served. In practice there is a danger that pursuit of the first objective prevails over diligent observance of the second.
Very few prosecutors deliberately conceal evidence that they believe to be helpful to the defence. But where there is political or institutional pressure to “obtain convictions” there is always a danger that instead of asking “is this capable of assisting the defence?” the prosecutor’s mind can slip too readily into asking “how can we justify withholding this material from the defence?”
Add a thinly stretched police force, and a CPS that has lost nearly one third of its budget compared with 2010, and the danger of trials being held without vital exonerating evidence becomes particularly acute.
In 2017 Richard Horwell QC was asked to produce a report into the failed prosecutions of police officers involved in the prosecution of the Cardiff Five (the men wrongly accused, and in three cases convicted, for the 1988 murder of Lynette White; if you don’t know about that case please may I recommend Shreds, a superb BBC Radio Wales documentary examining the original, shocking murder inquiry in detail).
The prosecutions of the police officers had collapsed due to missing documents and various disclosure issues, leaving the question of responsibility for some of the most notorious miscarriages of justice in Welsh legal history unresolved.
Horwell’s report was written, as such reports always are, with the expressed hope that such things would “never happen again.”
“Disclosure problems,” Horwell wrote, “have blighted our criminal justice system for too long and although disclosure guidelines, manuals and policy documents are necessary, it is the mindset of those who do disclosure work that is paramount.”
Partly in reponse to the his Report, and partly in response to well-publicised and embarassing disclosure failures in rape cases in 2017, the CPS set up what it called The National Disclosure Improvement Plan. Some parts of the plan seemed designed more to ease the pressure on the CPS than to address the specific problem of non-disclosure. Nevertheless, it did at least acknowledge the problem and demonstrate a desire to do something about it.
The CPS promised “a range of measures that will support police and prosecutors with their disclosure duties.” There were to be “clear, effective and sustainable” changes and, inevitably, prosecutors were to be given “the tools they need to manage all cases to the high standards we all expect.” There was a recognition that standards of disclosure were too low and that something must be done about it.
So in the last three years the Plan has been put into operation: tools have been sharpened, manuals updated, guidelines revised, protocols written and interfaces rewritten, action plans actioned, themed presentations presented, improvement plans improved, forums convened, working groups put to work and disclosure champions – later rebranded as Disclosure Champions – rolled out.
As if that were not enough, stakeholders have been engaged and sustainable networks have been created.
In short, best practices have been shared.
Last week was meant to be a celebration of how things were going.
There has been “new and ongoing improvement activity.”
“New and ongoing improvement activity:
We will deliver a series of disclosure focussed National Workshops to Legal Managers, Police Supervisors and Disclosure Champions to promote and develop proactive disclosure in volume crime. This will help to enhance the training in place around the Investigative Management Document (IMD), reasonable lines of enquiry, DMDs and embed the importance of developing case theory, identifying issues and maintaining a thinking approach. (Reflect/Refresh)
We will ensure that existing guidance and toolkits are regularly updated and reflect recent changes, including the introduction of the Attorney General’s Guidelines. (Review/Refresh)
We will monitor and support the successful implementation of the Attorney General’s Guidelines on Disclosure. (Review/Reflect/Refresh)
We will showcase tools, guidance and activities which have been developed under the NDIP programme in a Joint National Disclosure Week to celebrate our achievements and share best practice. (Review/Refresh)”
Thinking approaches, workshops, tools and toolkits: all have been updated, refreshed, enhanced, reviewed and embedded.
(As an aside, the CPS has long had an odd obsession with tools and especially toolkits. It has a toolkit for prosecutors on violence against women and girls cases involving vulnerable victims, a same sex sexual violence and sexual violence involving a trans complainant or suspect/defendant – toolkit, a psychological evidence toolkit, an ancillary orders toolkit, a streamlined forensic reporting toolkit and a correspondence toolkit. Despite innumerable disclosure manuals, guidelines, codes of practice, workshops and, for that matter tools, oddly enough I don’t think it yet has a disclosure toolkit.)
“National Disclosure Week” was devised as an opportunity to “showcase” some of these tools and celebrate, as Gerard Manley Hopkins put it, “the achieve of; the mastery of the thing.”
Two cases decided at separate London Crown Courts last week soured the celebratory atmosphere.
Together they illustrated in miniature many of the lamentable failings of our decaying criminal justice system: extraordinary delays, treatment of accused people with an insouciant disregard for the presumption of innocence, chronic underfunding and a misunderstanding of the role and duties of the expert witness.
They shared the common factor of failures to disclose evidence capable of assisting the defence.
“Systemic and catastrophic” disclosure failures at Snaresbrook
At Snaresbrook Crown Court HHJ Falk threw out a money laundering case. I am grateful to Crimeline Law for putting the case on their website (and if you are in any way involved in the criminal law and not already subscribing to Crimeline you should put that right immediately).
The case related to events in 2015, and involved allegations that several defendants – the leading one being a man called Javaid – had been laundering money by sending around £34M in cash to Pakistan through various “money service businesses” (“MSBs”).
The defence was that the MSBs themselves may have been criminal but the defendants were innocent agents. As a result, the defence asked for disclosure of material that might support their case that the MSBs were known to be criminal, or that they had engaged in similar activity with other innocent dupes. In the jargon of the criminal law, the defence asked if the prosecution were aware of the existence of any “bad character” evidence against any of the MSBs.
Ultimately a considerable quantity of such material was to be uncovered, but it took a very long time to emerge.
Unfortunately the case had been allocated to a Detective Sergeant on her first ever money laundering investigation. She needed the support of an experienced and dedicated disclosure officer. She did not get one.
In April 2019, with the trial due to start in July, the CPS told the defence that no such “bad character” evidence was known to exist, but the Police would ask the MSBs if they had ever been subject to any investigations.
That a polite request from the police would prompt dishonest money-laundering businesses to volunteer previous instances of their own dishonesty of which the police might be unaware was somewhat optimistic. It is hard to disagree with the judge’s laconic observation that this was “probably not the most reliable method of checking.”
Nevertheless, shortly before the scheduled start of the trial the Police did in fact receive information that some of the MSBs had been investigated, mainly by HM Revenue and Customs. Here was some potential support for what the defendants had been saying.
Rather than put the information onto the proper schedule (when its existence, if not its content, would have become known to the defence), the inexperienced officer in the case simply sent an email to the CPS and Prosecution counsel. Unfortunately neither did anything about it. Why not is not explained in the judgment.
The trial then could not go ahead in July 2019 for unrelated reasons. That perhaps was just as well for as the judge pointed out:
“… if the trial had proceeded, it is axiomatic that it would have been an unfair trial or more likely that the true position would have emerged in cross-examination and the trial aborted.”
It was relisted for September 2021. Even pre-pandemic it was no easy thing to find a slot for a long fraud trial.
One might have thought that with over two years to play with, the prosecution team would then have investigated the potential unused material of which the officer in the case had been made aware in 2019. In fact, little if anything seems to have been done about it.
Nevertheless, as the September trial date was approaching the defence were at last told of the existence of other material which might assist them.
Could it then be disclosed?
No it could not. The CPS had still not got round to looking at it.
So the case began and as the first witnesses were called, in some back-room the CPS was desperately playing catch-up, trying to work its way through the HMRC material.
The trial limped on but after a few days, fearing that the disclosure process was becoming unmanageable, the prosecution asked for the jury to be discharged. Given the wasted two years since 2019, the judge could have been forgiven for expressing a degree of exasperation.
Perhaps he did so, because on reflection the prosecution then withdrew their request to discharge the jury. With a short adjournment for them to review “28 boxes of HMRC material” they thought, after all, the trial could continue.
They were given a deadline to complete the review process.
They missed it.
Judge Falks explained why:
“… on 28th September, [the] Prosecution stated that they had not been able to fully comply with the Court order and that HMRC may have been more material than previously communicated and were currently making checks. It was believed that rather than being 28 boxes of potentially relevant material, there were in fact the equivalent of 140 boxes and further that there may be another HMRC database of more material that the prosecution had not been told about by HMRC previously. I was assured however, that this drip feeding was not caused by HMRC deliberately holding back information from the Prosecuting team.”
On 30th September (in the judge’s words):
“… Prosecution Counsel confessed to the Court that they had known about the existence of MSB bad character material since June of 2019 and that it had not been disclosed to the Defence nor had [they] set about further lines of enquiries with 3rd party agencies. Of course, none of this was on the MG6C [the schedule of unused material listing documents for the defence]. Crown counsel had to consider whether any professional embarrassment issues arose. Eventually Crown counsel considered themselves not to be so embarrassed and the Court again ordered the trial to continue.”
It was to be a last desperate effort to keep it alive.
With boxes of unused material now pouring forth from both the HMRC and the Financial Conduct Authority, the prosecution surrendered to the inevitable.
“On Monday 4th October 2021, the Crown’s position changed again for the final time. Prosecuting Counsel made a 2nd application to discharge the jury. They stated to the Court that they were no longer in a position to assure the Court that the disclosure process could be completed within the currency of this trial window and that they were unable to comply with their CPIA obligations [their statutory duties under the Criminal Procedure and Investigations Act 1996]. Further they could not give a definitive answer as to when it would be complete but it could take up to 6 months. They accepted that this was material from both HMRC and the FCA and it should have been considered well before trial but was being done so now, however at this juncture the Prosecution could not certify that disclosure was complete and therefore that this jury could not give the Defendants a fair trial.”
Boldly, the prosecution suggested that a third attempt to bring the case to trial could be made at a later date. This would have meant a further delay of at least a year; probably longer.
The main defendant had by this stage been kept in custody for 815 days, and on a “qualifying curfew” (that is, under highly restrictive bail conditions equating to what some might call “house arrest”) for 419 days. He had served the equivalent of a 5 years and 8 months prison sentence.
HHJ Falks at last “struck the board and cried no more.” He did not believe that the prosecution had acted in “bad faith” but:
“I do find that systemic and catastrophic failure has come about because the investigation exponentially grew in size without sufficient manpower, resources, training or expertise being allocated to it. This was not the kind of case to be allocated to a single OIC [“Officer in the Case”] as a first money laundering investigation without any supervision from experienced Senior officers or a team of experienced disclosure officers.”
The overall picture is of an under-resourced and over-worked police and prosecution team floundering. Nobody in the team escapes blame. Schedules were not completed properly by the police. Both the CPS and prosecution counsel ignored emails. Two years elapsed in which it appears that little or no investigation of the unused material held by HMRC took place.
There are just two crumbs of comfort.
The first was that the judge went out of his way to praise the integrity of prosecution counsel:
“I wish particularly to pay tribute to the frankness and integrity of leading and junior counsel for the Prosecution who have been transparently honest with the Court as to difficulties I have identified, making clear throughout a determination to assist this Court, acting as ministers of justice and being completely frank about the issue of not responding to a vital e-mail back in 2019.”
The second was that at least in that case an unfair trial was averted. There are many “what if” scenarios in which it could have gone ahead and resulted in unfair convictions.
Nevertheless, the case was a catastrophe for the Prosecution; which is not to say that it would have been a particularly pleasant 1,234 days for the defendants either.
The conflicted diamond experts
Just two days later, as the police and prosecution panjandrums continued to celebrate their disclosure achievements, another disclosure train-crash was unfolding at Southwark Crown Court.
Lewis Bloor, known to millions as a star of The Only Way is Essex, had been accused, with others, of tricking unsuspecting purchasers into buying hugely over-priced coloured diamonds. The trial which began in October was the culmination of an investigation which started in 2014.
Prosecution counsel David Durose QC admitted to the trial judge that important material which could have assisted the defence had not been disclosed. So serious were these failures that he felt a fair trial was no longer possible. He offered no further further evidence, and invited Judge Adam Hiddlestone to direct acquittals of every defendant.
One particularly unfortunate aspect of the case was that the company for whom two prosecution expert witnesses worked, Dreweatts, held a contract with the police to sell seized property, including diamonds. At the time of the trial it was engaged in a tendering process to renew just such a contract. One of the experts, Jeremy Nicholson, who was instructed to give an expert opinion on the valuation of diamonds, is the Deputy Chairman of the company. This financial relationship between the experts’ employer and the police, had not initially been revealed by the CPS.
“The prosecution initially did not disclose the offer of a conditional fee agreement by the experts to the police who were paying their fees.”
If there was indeed an offer of a conditional fee agreement by which the experts’ fees, or some other future benefit to Dreweatts, were to be related to whether a conviction was obtained that would be abhorrent, and would demonstrate a complete misunderstanding by those instructing them of the function and duties of an expert witness.
“Not consistent with the Criminal Procedure Rules”
Mr Durose blandly conceded that “the experts were not instructed in a way consistent with the Criminal Procedure Rules.”
The Rules in question – all too often ignored or overlooked in the case of expert evidence – make clear that a party wishing to rely on expert evidence must serve with the expert’s report:
“notice of anything of which the party serving it is aware which might reasonably be thought capable of undermining the reliability of the expert’s opinion, or detracting from the credibility or impartiality of the expert, ….”
It implies no criticism of these particular experts, but the fact that a witness’s employer might benefit financially from obtaining a conviction is certainly capable of detracting from an expert’s impartiality.
There is also a “Practice Direction” – a formal direction applying to all criminal cases – which gives some examples of the sort of thing that should be included in such a notice, although it should hardly be necessary to explain the position to experienced prosecutors:
“Examples of matter that should be disclosed … include … both in relation to the expert and in relation to any corporation or other body with which the expert works, as an employee or in any other capacity:
(a) any fee arrangement under which the amount or payment of the expert’s fees is in any way dependent on the outcome of the case …
(b) any conflict of interest of any kind ….”
An expert’s report also has to contain a declaration:
“I know of no conflict of interest of any kind, other than any which I have disclosed in my report.”
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In both the Southwark and the Snaresbrook cases the trial process itself uncovered these serious disclosure failures. Those who lost money on diamonds will feel that they didn’t receive anything approaching justice, but at least the cases did not in the end result in unfair trials and tainted convictions.
Both were complex and high-profile fraud cases, yet the prosecution’s disclosure faults were systemic, catastrophic and egregious. That they were picked up owed a great deal to the skill and determination of defence teams, and perhaps just as much to the honesty and integrity of prosecution counsel.
How much more likely is it that in a myriad of lesser, duller cases similar mistakes are being made every day? How much less likely is it that they will be discovered when the defendants are not represented by the finest Queen’s Counsel but by hideously over-worked and underpaid legal aid lawyers? How confident can we be that all prosecution counsel would show the same courage and integrity in admitting their mistakes? If just one inexperienced police officer is all the police can spare to manage disclosure in a multi-million pound money-laundering case, what police attention is given to disclosure in the thousands of less high profile cases?
Overworked police and lawyers are likely to make mistakes with disclosure, and in other ways too. If cases are rushed and insufficient resources are available to the police, the prosecution and the defence, then inevitably more mistakes will be made, fewer will be noticed and more miscarriages of justice will become inevitable.
It is right to give credit to the CPS for recognising and publicising the importance of disclosure. Hundreds of individual prosecutors, acting under great pressure, demonstrate professionalism and integrity of a high order in making correct disclosure decisions every day.
And yet, there is still a strong whiff of hubris about events like National Disclosure Week. The endless production of manuals, guidance and toolkits is no substitute for adequate resources, proper training and the rigorous integrity of prosecutors. As Richard Horwell pointed out, ultimately it is not the existence of protocols and toolkits but the mindset of prosecutors which determines whether the disclosure process is fair. Notwithstanding the high standards of many individual prosecutors, there are still too many who seem to regard the disclosure process as a search for reasons to reveal as little as possible, and others who adopt what Chris Daw QC termed last week the “whac-a-mole” approach. And there are far too many who unthinkingly adopt “Clearly Non Discloseable” as the default position for every item that is brought to their attention.
The disclosure problem has not been solved by the National Disclosure Plan. Celebration of its achievements seem distinctly premature.