Disclosure has been a longstanding and integral part of the criminal justice system ensuring that prosecutions and convictions are handled in a fair manner. In recent weeks, disclosure within criminal proceedings has been hitting the headlines as the media has been reporting on the number of prosecutions in England and Wales which have collapsed following a failure by the police and Crown Prosecution Service (“CPS”) to follow the proper process to disclose evidence.
News stories have reported that last year, as many as 916 people had charges against them dropped due to the failure to disclose evidence. The failings have come to light after many rape cases have collapsed after the prosecution’s failure to share evidence with defence solicitors. So, what is disclosure and what are the duties which are not being met?
What is disclosure?
Disclosure is a process whereby material which the prosecution will have gathered during their investigation is shared with the defence. The police and CPS have a duty to disclose material which may undermine their case and/or assist the defence’s case when dealing with an investigation.
The duty is set out within the Criminal Procedure and Investigations Act 1996 (as amended by Part V of the Criminal Justice Act 2003). Additionally, there is a Code of Practice which was last revised in 2015.
What material does the prosecution have to disclose?
The prosecution must disclose to the defence any material which meets the disclosure test as set out in the Act. This includes not only evidence on which the prosecution intends to rely, but also material which they do not intend to use (often referred to as unused material). The prosecution do not however need to disclose material which is deemed as neutral.
Throughout an investigation, material which is obtained should be categorised into one of the following four categories:
- Unused material;
- Irrelevant material; and
- Material subject to legal privilege.
How long does the duty to disclose last?
The duty of disclosure, as defined in the Act, is a continuing duty under which the prosecution must at all times review whether there is any unused material which might reasonably be considered to undermine the prosecution’s case or which could assist the defence.
Material obtained during an investigation will be retained until a decision is made to start proceedings or not. Once proceedings have started, any relevant material must be retained until the accused is acquitted, convicted or the case is dropped.
When the prosecution follows the duty of disclosure, it ensures not only that cases are handled fairly but also protects the integrity of the criminal justice system.
We will wait to see whether any more cases emerge where the duty of disclosure has not been followed correctly. More than ever, for both individuals and businesses that are subject to criminal investigations, it is imperative to seek legal advice during the early stages so that a solicitor can ensure that all relevant evidence is disclosed. When we are engaged from the start of an investigation, be it an investigation by the police or other body, we are able to actively protect our clients’ best interests and are continually mindful of disclosure to make sure that we obtain all relevant evidence for your case.
Should you require any assistance, our Crime and Regulatory department are ready and able to assist you, not only to ensure that all relevant evidence is obtained, but also to prepare your case to the highest of standards.