The case of Liam Allan has attracted widespread national publicity, far beyond the world populated only by lawyers and legal journalists. Liam Allan was accused of a number of offences of rape. He knew that he had exchanged relevant text messages with the complainant, but he had lost his mobile phone and asked his solicitor to obtain disclosure of the messages on the complainant’s mobile phone. This request was refused on the grounds that the messages were personal and did not qualify for disclosure. They were not even listed by the prosecution as non-disclosed material.
It was a barrister newly instructed to prosecute at the trial who insisted that disclosure must be made. There followed a detailed examination of the material, first by defence counsel and then by him (neither, I understand, being paid anything at all for the many hours of extra work to which they had been put), which led to his telling the court that the prosecution would not be proceeding with the case. The Director of Public Prosecutions has apologised, and an inquiry is now being conducted into the reasons why the material was not disclosed.
Issues over prosecution non-disclosure flourished after 1991 with Lord Justice Glidewell’s judgment in the Criminal Division of the Court of Appeal in the Judith Ward case. He said:
It is now settled law that the failure of the prosecution to disclose to the defence evidence which ought to have been disclosed is ‘an irregularity in the course of the trial’. Why there was non-disclosure is an irrelevant question. The irregularity is in the course of the trial because the duty of disclosure is a continuing one. If the irregularity is material then for this reason alone the appeal must be allowed unless the proviso applies. R v Maguire said that the failure to disclose is a ‘procedural irregularity’ and because that which was not disclosed ought to have been disclosed we would expect it to satisfy the adjective of ‘material’.
We agree. ‘Material’ means something less than crucial. It was said that the non-disclosures here were relatively insignificant in the context of the case when viewed as a whole. The scope of that submission is limited to matters of which it can be said that they were of no real significance. The possibility that this view will be taken of any piece of disclosable evidence should be wholly excluded from the minds of the prosecution when considering the question of disclosure. Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed piece of evidence might have shifted the balance or opened up a new line of defence. That does not arise here as the non-disclosures were a material irregularity.
In this case, ‘the prosecution’ includes three police forces, the staff of the DPP’s office, the psychiatrists who prepared reports and the forensic scientists who gave evidence for the prosecution at the trial….
The test put forward by Lord Denning was that laid down in Dallison v Caffrey 1964 – that the duty of prosecuting counsel ‘as he always understood it’ was that if one knows of a credible witness who can speak to material facts which tend to show the prisoner to be innocent, then that witness must either be called or their statement made available to the defence. The practice should be to allow the defence to see the statements unless there is good reason for not doing so, especially where delay might have adversely affected the recall of the witness. Lord Denning went on to say that it would be highly reprehensible to conceal from the court the evidence which such a witness could give. If prosecuting counsel knows of a witness, not accepted as credible, they should tell the defence about that person so that they can judge whether to call the witness for themselves.
That position is an aspect of the defendant’s elementary common law right to a fair trial which depends upon the observance by the prosecution, no less than the court, of the rules of natural justice. No authority is needed for that proposition. It is illustrated by the decision in R v Leyland 1979. In R v Hennessey 1978, it was said that those who prepare and conduct prosecutions owe a duty to the court to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence and if this duty is neglected, we can expect the appropriate disciplinary bodies to take action and that the judges will make sure that the Crown gets no advantage from neglect of duty on the part of the prosecution.
That statement reflects the position in 1974 as well as today. The expression ‘all relevant evidence’ is not limited to that which will advance the accused’s case. It is of help for the accused to see all of evidence which the prosecution have gathered and from which they have made their selection. The practice of disclosing unused material has been much more clearly recognised recently by prosecutors. The Code of Conduct of the Bar makes this clear.
One unintended consequence of this judgment was a growing suspicion that defence lawyers were now studying unused material carefully to see if it could give rise to a line of defence that had not previously been advanced. This led to the enactment of section 3 of the Criminal Procedure and Investigations Act 1996 which codified the law, creating a duty on the prosecution to disclose any
“material … which might reasonably be considered capable of undermining the prosecution case … or of assisting the case for the accused.”
The word “material” was defined as being that which the prosecutor possesses or has inspected in connection with the case.
I remember that at about that time I spoke as Chairman of the Law Commission to a large gathering of Government lawyers about the responsibility they shouldered in public law cases to do everything they could to ensure that the court was being told the truth by Government and that matters were not being willfully concealed which ought to be revealed to the other side and to the court. Sadly, it is now becoming crystal clear that responsibilities of disclosure are being increasingly delegated downwards, without adequate supervision, to people at a low level of seniority in the police or the CPS who often do not really understand what is required of them.
In a letter to The Times today His Honour Simon Tonking, who sat as a circuit judge in the Crown Court in Sussex for 18 years prior to his retirement two years ago, wrote:
“I regularly saw the duty being flouted. In most cases disclosure was eventually given, usually after defence requests and judicial intervention, without ultimate prejudice to the accused. In some cases, however, the failure could not be remedied and, where crucial (as in the case of Liam Allen) no trial took place.”
He said the outcome of any review of disclosure policies and practices required more than an adequate provision of resources and training: what was needed was a change of culture.
In the House of Lords debate on the Bach Report last week the former Lord Chief Justice Lord Thomas was good enough to compliment me on the detailed appendices I had written, which would, he said,
“well repay detailed analysis by Her Majesty’s Government.”
In Appendix 5, which I have described as a “must read”, difficulties over non-disclosure were described in these terms:
The police and the CPS
Two complaints surfaced again and again in the evidence we received about police and/or prosecutorial practice. The first …
The second – which might arise from prosecutorial failings just as much as from failings by the police – relates to problems arising from late disclosure or non-disclosure of prosecution evidence. In a climate in which issues of this kind could be cured by an adjournment or by a judicial determination to exclude evidence it would be unfair to admit these shortcomings might not matter so much, but where there is such a determination to avoid adjournments and where failures in prosecution disclosure are so widespread that dangerous criminals would go free if judges were scrupulous in excluding evidence unfairly disclosed long after the due date (and some of it during the course of the trial itself) there are obvious risks to the integrity of the justice system.
The vigorous complaints the Commission received from defence lawyers have been amply confirmed by the Crown Prosecution Inspectorate. In a report published in June 2017 it noted that the duty of disclosure was complied with fully by prosecutors in only 56.9% of applicable cases within the file sample – an improvement from the previous inspection when only 34.8% of cases met expectations. It said that CPS disclosure was hampered by the standard of police compliance with their disclosure requirements: in the current inspection this fell below the required standard in 40.7% of cases. In 19.5% of these cases the police did not provide a schedule, in 18.5% the items were poorly described and in 15.4% they were wrongly listed.
Problems with disclosure
If parties always complied with the guidance set out in the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (2013) no significant problems should arise. Unhappily, as has already been observed, both the police and the CPS often fall short of what is required of them. Joanne Cecil told the Commission:
The disclosure regime, I think, is actually a very dangerous one right now. It’s completely underfunded and misunderstood, certainly within the Magistrates’ Court. At the Magistrates’ Court it simply doesn’t exist, notwithstanding the whole disclosure review that was conducted and the papers that were put out and so on and so forth. Those issues are still arising time and time again. And that leads to real potential miscarriages of justice for obvious reasons, because that is where, often, because this is where, often exculpatory or undermining material actually lies. So, there are real difficulties with that.
There are also real issues within the disclosure process in the Crown Court in terms of whether it is counsel reviewing the items or a disclosure officer reviewing the items or a CPS reviewing lawyer or paralegal reviewing the items. The quality of the review varies quite dramatically. Even in the most serious cases, in one I’m aware of at the present time, there are some huge disclosure issues. The disclosure process is key and it’s an incredibly serious case.
In that case I’m aware that the Crown, including leading and junior counsel, have not reviewed the material themselves. And as a consequence of subsequent issues there is more and more that is being disclosed.
I’ve been, myself, in a case where both individuals were convicted on conspiracy to murder charges and appealed to the Court of Appeal. Their conviction was quashed on the basis that the case presented by the Crown at trial could not be factually right and accurate. There were issues over the disclosure of certain material that were being raised throughout that trial and in the Court of Appeal, who ordered a retrial.
We began the retrial with, I think, disclosure request No 56. And three weeks in, the Crown offered no evidence. We still do not know why. We have a suspicion as to what that material was but no confirmation. The case was referred to the Attorney General by the High Court Judge in an extremely unusual step. The Attorney General has declined to review it. He simply took the report from the Crown and said “We see no further need to review the case and consider the position.” We still do not know what the problem was, but we believe it must have been within the disclosure process. And so, that is a case involving very experienced Queen’s Counsel for all parties, junior counsel, disclosure officers, a joint police force operation, and with profound ramifications, involving life sentences for these individuals.
So, it’s a problem that still flows through the system. Another example of this is the funding of the disclosure process. This is obviously a difficulty for the defence. We are not entitled, necessarily, to see it, or we only get what is disclosed, and there are then these problems.
Another case, which was a terrorism case I’m aware of, was where a forensic service report from the Miscarriage of Justice Unit within the Forensic Services team itself was never served at all on the defence, notwithstanding the fact that it undermined the key aspect of their forensic evidence in the trial.
Since the Bach Report was published in September I have repeatedly urged that the contents of this Appendix should be widely read and understood far beyond the world of lawyers and legal journalists. They are testimony to the devastation that has been created because on current policies successive Governments will have reduced the annual sums allocated to justice by 40% in real terms in a ten-year time span from 2010 onwards, with corresponding cuts being made to the budgets of the Crown Prosecution Service and the police.
The author of the main leading article in today’s Times writes:
“If Mr Allan’s case is an isolated incident, it is worrying enough.”
It is not, and it is indicative of the deeply ingrained change in culture in many parts of the prosecution and police services of which Simon Tonking wrote today.
 He was sitting with two future law lords – Lord Justice Steyn and Lord Justice Nolan. I am not alone in believing that the House of Lords would have benefited if Iain Glidewell, too, had been sent there. He was one of the finest and most humane judges I can remember.
 HM Crown Prosecution Inspectorate. (2017) Business as usual? A follow-up review of the effectiveness of the CPS contribution to the Transforming Summary Justice Initiative. See now The CPS Inspectorate and the Inspectorate of Constabulary (2017) Making it fair – a joint inspection of the disclosure of unused material in volume Crown Court cases. Accessed September 2017: http://www.justiceinspectorates.gov.uk/cjji/inspections/making-it-fair-the-disclosure-of-unused-material-in-volume-crown-court-cases/
Accessed September 2017: https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Protocols/Disclosure+Protocol.pdf
 Judiciary of England & Wales. (2014) The Magistrates’ Court Disclosure Review. Accessed September 2017: https://www.judiciary.gov.uk/wp-content/uploads/2014/05/Magistrates%E2%80%99-Court-Disclosure-Review.pdf .