Police Evidence Failings Risk Wrongful Convictions and Offenders Walking Free

A report says police officers and prosecutors are causing delays and undermining justice in criminal trials because they are not adhering to basic rules about disclosing evidence to the defence, so resulting in defendants’ rights to a fair trial potentially being undermined.

The ‘Making it fair’ report, compiled by the HM Crown Prosecution Service Inspectorate (HMCPSi) and HM Inspectorate of Constabulary, says flaws in disclosure risked leading to wrongful convictions and offenders walking free.

Inspectors examined 146 crown court case files, including 56 that the Crown Prosecution Service (CPS) identified as failing as a result of disclosure issues, and found it was “rare” for police officers to tell prosecutors about evidence that could undermine their case or assist that of the accused – known in legal terms as ‘unused material’ – and that their recording of sensitive and non-sensitive evidence was “routinely poor.”

For their part, prosecutors were “failing” to challenge the poor recording of material and carry out their duty to consider what to hand over to the defence during a case. This was leading to delays and postponements and in some instances, trials were collapsing.

Inspectors found that in over half (55.5%) of the cases they reviewed there were obvious disclosure issues before a defendant was charged. Prosecutors dealt fully with these issues in only one in four cases and in over a third (38.3%) of cases they were not dealt with at all.

Police “don’t know what they’re doing” on disclosure

HMCPSi chief inspector Kevin McGinty said there was a “culture of defeated acceptance” that disclosure issues would be dealt with at the last moment, if at all, and said police “don’t know what they’re doing” regarding disclosure.

He said a failure to deal effectively with disclosure undermined the principles of a fair trial and had “a corrosive effect on the criminal justice system,” adding that it “adds delay, cost and increases the stress faced by witnesses, victims and defendants.”

The report said the failings often led to “chaotic scenes” outside the courtroom as barristers tried to resolve disclosure failings at the last minute.

“Too important to be allowed to continue to fail”

Mr McGinty said the findings would “surprise no-one” working in the system, noting that “If the police and CPS are ever going to comply fully with what the law requires of them by way of disclosure, then there needs to be a determined cultural change . . . This is too important to be allowed to continue to fail.”

Responding to the findings, Gregor McGill, director of legal services at the CPS, said:

“The CPS understands the importance of complying with its statutory obligations relating to the disclosure of unused material and is committed to doing so . . . We will urgently work with our partners in policing, and other agencies, to address the findings in this report.”

Mr McGill continued: “We are already working with the police to improve our performance. For example, we are bolstering the role of our disclosure leads across England and Wales who ensure compliance with the mandatory disclosure regime and now insist on mandatory training for all our prosecutors . . . We know there is more to be done and will be taking a range of steps, which we will outline in a joint CPS and police action plan later this year.”

Defendants would be “horrified” by scope of problem

Zoe Gascoyne, chair of the Criminal Law Solicitors’ Association, blamed the problem on “speedy justice” as courts rapidly churned through cases against a background of cuts to public services. Ms Gascoyne added that defendants would be “horrified” if they knew the extent of the problem.

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