Prosecutors are failing in statutory disclosure duties

Crown prosecutors are complying properly with the statutory disclosure regime in only around half of cases, a report by HM Crown Prosecution Service Inspectorate (HMCPSI) has found. Although the breaches did not mean potential miscarriages of justice, the report says, noncompliance resulted in adjournments and ineffective trials while disclosure issues were resolved, in 5.3% of the 152 magistrates’ court and crown court cases observed.

Delays to trials while advocates sorted out disclosure issues were common, impacting on court listing practices and other cases. Juries face significant waits, and the victims, witnesses and defendants are inconvenienced. In the cases scrutinised, the initial duty of disclosure was properly complied with in 56.6% of cases, continuing disclosure in 71.3% of relevant cases and sensitive material in 47.5%. Deficiencies include: description of material in schedules compiled by police disclosure officers; lack of examination of material by prosecutors; and lack of adequate recording of actions, decisions and the reasons for them by prosecutors. Blanket provision of unused material was sometimes made, passing the burden of examining material to the defence which caused delay.

The report says statutory duties for the handling of unused material— under the Criminal Procedure and Investigations Act 1996, as amended by Criminal Justice Act 2003—were found to be onerous by police and prosecutors and the procedure can be convoluted. Stephen Wooler, HM Chief Inspector says: “More consistent and timely compliance with the statutory disclosure regime, with a crown prosecutor having considered the material itself when it is key or sensitive unused material, could reduce the overall resource demands of disclosure.” A CPS spokesperson says the CPS is addressing the issues raised in the report. She adds: “Although the report focuses on the role of the CPS, non-compliance by other players in the criminal justice system…also cause, contribute or add to problems.”