The blog I posted earlier today has attracted some interesting comments in response, and has already attracted over 170 “views”. Of particular note are the results of a survey conducted by Robin Murray[1] about the extent to which the prosecution is now complying with their duties of disclosure, and the extent to which the Bench is supporting the defence when they seek orders which would level the playing field. There have already been more than 500 responses.

He describes the outcome in two very long blogs.[2] In this blog I am restricting myself to republishing the survey results, followed by a handful of the comments made by respondents.   They seem to be mainly, but not exclusively, concerned with practice in the magistrates’ courts.

I said in my last blog that the Director of Public Prosecutions had recently shown herself to be aware of the problem.  It seems to me that guidance on the appropriate responses to be expected from the Bench will constitute a major item in the in-tray of the new Lord Chief Justice, when he takes over from Lord Thomas at the beginning of next month.

The survey and the responses

Q.1 In your experience as a criminal practitioner have you encountered disclosure of evidence failings or late service by the Prosecution? Here is the result which is not that surprising as mistakes do happen.

 

Yes                                                                                                98.65%

No:                                                                                                  1.35%

 

Q2 If you have encountered disclosure failure by the Prosecution how would you describe the frequency of such failure?

 

Very Often                                                                                   90.58%

Occasional:                                                                                   8.27%

Rare:                                                                                             1.35%

 

Q3. When the defence have brought the disclosure failure to the attention of the Court what has the attitude of the Court to the defence in general been?

Always supportive:                                                                    1.73%

Usually supportive:                                                                   11.90%

Very mixed levels of support:                                                  50.10%

Often very unsupportive:                                                         36.28%

 

 

Q 4. Do you consider that the Court deals with disclosure failure appropriately?
Do the courts deal with disclosure issues justly and fairly?

 

Normally:                                                                                    5.37%

It is a mixed picture, but some courts do not:                     51.44%

There are frequent serious court failures to do so:            43.19%

 

Q5. At the first hearing the Prosecution are obliged under Rule 8.3 of the Criminal Procedure Rules to serve a summary of the circumstances of the offence, any account given by the defendant in interview, and any written witness statement or exhibit that the prosecutor then has available and considers material.

How is that rule being observed? How well are the Crown complying with their duty to serve evidence before or at the first hearing to enable the defence to be the ‘early engagers’ envisaged by Lord Justice Leveson?

At the first hearing, have you encountered failures of disclosure that are in breach of the rules?

 

Very often                                                                                               79.08%

Occasionally                                                                                          18.43%

Rarely                                                                                                      2.50%

 

 

Q 6. At the trial or final contested hearing have you encountered a disclosure failure to serve documents or media required (e.g. under common law or under the obligation contained in Rule 24.13 of the Criminal Procedure Rules) in good time prior to hearing?
 

Very often                                                                                               71.02%

Occasionally                                                                                          26.30%

Rarely                                                                                                      2.69%

 

Q7 At the first hearing would you support the strengthening of Rule 8.4 of the Criminal Procedure Rules by the imposition of a presumption of adjournment to another hearing date where late disclosure places the defence under unreasonable logistical or time pressure difficulties in dealing with such that day?

 

Yes:                                                                                                          93.67%

No:                                                                                                              6.33%

 

Q8. At the trial or final contested hearing, where late service of documents, media or any other evidence places the defence under unreasonable logistical or time pressure would you support a strengthening of Rule 24.13 of the Criminal Procedure Rules so that such evidence can only be admitted by leave of the court in exceptional circumstances or by S10 agreement?

 

Yes:                                                                                                          96.16%

No:                                                                                                           3.84%

 

 

A few of the respondents’ comments

Recently the lack of disclosure has been alarming. I have just successfully represented a 14-year-old boy indicted with attempted murder, and the significantly undermining material about the only witness in the case was only disclosed after a section 8 application was made and the reviewing lawyer realised there might be an issue over time limits.  Even then the response to the request for educational records was that they could not be provided as the school was closed for the summer holidays. The record when produced showed that the witness had a history of lying for attention and sympathy. Imagine if we have not had it.

 

The current system appears to favour the prosecution. It would appear that the Courts are sympathetic to the fact that the CPS do not have sufficient resources to meet their duties of compliance. However, the defence and defendants are expected to just accept that, to the detriment of the defendant.  Speedy Summary Justice has simply gone mad!!

 

Late, incomplete or non-disclosure is now the norm at the Magistrates’ Court. The CPS routinely ignores CPR directions. If we list for non-compliance, the Court invariably gives the CPS an extension, and we then often have to list two or three times to get what we are entitled to. Sometimes we have to go so far as submitting a Defence Case Statement to force disclosure. The Court appears powerless to do anything – a Wasted Costs Order is occasionally threatened but rarely followed through. As a Solicitor Advocate, I can say that it is completely the opposite in the Crown Court. On virtually every file, full disclosure is provided early or on time and there are very few issues. This suggests that all the resources are being channelled in one direction even though the lower courts still deal with the vast majority of cases. Something needs to be done to address the balance.

 

The CPS are under massive strain and pressure given the cuts imposed and almost without exception there are disclosure problems in every case I prosecute and defend, particularly in relation to third party material issues . The courts are entirely unsympathetic to defence disclosure requests, frequently citing requests as fishing expeditions.

 

Memorably on one occasion, when listing prosecution failures concerning disclosure and reminding the bench of what the CPR requires, the chair of the bench commented ‘we must deal with things as they are, not how they should be’

 

I wrote in my school report (aged 13) “when I grow up I want to be a human rights or defence lawyer to help innocent people.”  It’s near impossible to do that when the Prosecution tie my hands behind my back (lack of disclosure) and the Court, rather than untie me, go on to blindfold me (lack of judicial scrutiny).  A 9-10 month wait for a summary trial in Cambridge. No disclosure. No judicial scrutiny. I’m sick to the back teeth of the phrase “Your client knows whether s/he’s guilty or not.” Thank God for jury trials and right of appeal to the crown court.

 

 Sadly it seems there are no subterranean depths to which some courts will avoid descending in their apparent enthusiasm to tilt the scales of justice against the defence. We have become like the old Soviet Union with a superficially attractive criminal code that the judicial establishment ignore.

Listening to so many of these complaints – as I have done for the last two years as a member of the Bach Commission on Access to Justice – I feel a bit like Rip Van Winkle, waking up after a long sleep to find the world he remembered had completely changed. Although we had some oddities during my days of practice in the criminal courts, we never encountered anything like this, and our arrangements for criminal justice were all the better for it.

 

 

[1] A former Vice-Chair of the Criminal Law Solicitors’ Association

[2] https://mintedlaw.wordpress.com/2017/08/29/interim-clsa-disclosure-survey-results-if-her-majestys-courts-and-the-crown-prosecution-service-do-not-obey-laws-and-lawful-regulations-why-should-the-rest-of-us/

https://mintedlaw.wordpress.com/2017/08/05/despatches-from-the-disclosure-battle-front/