Proper disclosure requires payment

The government has promised to take a ‘zero tolerance’ approach to disclosure in the criminal justice system, after its own review uncovered systematic failings.

The ‘Review of the efficiency and effectiveness of disclosure in the criminal justice system’ was commissioned in December 2017 and coincided with the collapse of several high-profile prosecutions due to disclosure of evidence issues, notably the Liam Allan case. It found the duty to record, retain and review material collected was not routinely complied with by police and prosecutors and this was causing, at the least, costly delays and at worst meant cases were being pursued without sufficient evidence.

Disclosure is the process by which the accused is provided with investigation materials that could undermine the prosecution case against them or assist their defence.

Publishing the 78-page review this week, Attorney General Geoffrey Cox QC MP said: ‘For too long, disclosure has been seen as an administrative add on rather than fundamental pillar of our justice system. This ends now.’

The review recommends incentivising early preparation and engagement between prosecution and defence, and reviewing the current level of criminal legal aid payments.

Andrew Walker QC, chair of the Bar, said: ‘The review recognises that changes will need to be made to the criminal legal aid fee schemes if early preparation and engagement is to happen, and be effective. 

‘Fees for that work, at proper rates, will be essential. But this will also require the Crown Prosecution Service (CPS) to be funded properly, so that it can employ the necessary staff. We note the absence of any such recommendation.’

According to Bar Council research, CPS funding has fallen 34% in real terms in the past ten years.

Law Society president Christina Blacklaws welcomed the review’s acknowledgement that ‘the current fee structure for police station attendance is not designed for a large amount of pre-charge work by the defence’.