Disclosure in criminal investigations is a cornerstone of justice, ensuring that all relevant material, both for and against the accused, is properly shared and managed. Under the Criminal Procedure and Investigations Act 1996 (CPIA), disclosure responsibilities primarily fall on the prosecution, ensuring the defence has access to unused material that might assist in the preparation of their case. However, despite the legal framework provided by CPIA, numerous high-profile cases have exposed failings in disclosure practices, resulting in miscarriages of justice. Let’s look at why effective disclosure is more important than ever, examine lessons from case law, and highlight how proactive disclosure management is essential to restoring faith in the criminal justice system.
The Role of CPIA in Disclosure
The CPIA 1996 sets out clear guidelines for the disclosure process, distinguishing between initial and continuing disclosure. The prosecution is required to disclose any unused material that might reasonably be considered capable of undermining the prosecution case or assisting the defence. However, ensuring that this happens consistently and thoroughly is where the system has often broken down.
The disclosure officer plays a crucial role in this process, managing the identification, recording, and sharing of unused material. The officer must also continuously review the material as the case progresses, particularly as new evidence or arguments come to light. Despite these safeguards, systemic and procedural failures have led to significant issues in recent years.
Case Law: Lessons from Disclosure Failures
Several key cases have highlighted the severe consequences of poor disclosure practices. A notable example is R v R (2017), where failures in disclosure led to the collapse of a rape case against a university student. Critical text messages that supported the defendant’s version of events were not disclosed until shortly before the trial. This case illustrated how disclosure failings can result in wrongful charges, damaging lives and eroding trust in the legal system.
Another significant case is R v Mouncher & Ors (2011), part of the Lynette White Inquiry. The trial collapsed due to undisclosed evidence, which could have been pivotal for the defence. The case highlighted not just individual errors but systemic issues in the management of large-scale investigations, where complex material was either inadequately reviewed or entirely missed.
In R v Ward (1993), the Court of Appeal quashed the conviction of Judith Ward, convicted of bombing offences, after it was revealed that crucial scientific evidence and psychiatric reports had not been disclosed. This case emphasised how failures in disclosure could result in wrongful convictions and the deprivation of liberty for many years. Ward’s case was instrumental in prompting the reforms that led to the CPIA 1996, but the challenges surrounding proper disclosure remain.
These cases and many others have demonstrated that disclosure failings are not isolated incidents. They represent deeper issues within investigations, disclosure training, and resource management. These failings not only risk wrongful convictions but can also lead to guilty individuals escaping justice.
Why Effective Disclosure is Crucial Today
In response to these high-profile failures, several measures have been introduced, including the Attorney General’s Guidelines on Disclosure 2024 and the Directors Guidance on Charging. These guidelines emphasise the need for greater pre-charge engagement between the prosecution and
defence, aimed at resolving issues earlier in the process and ensuring that all relevant material is reviewed and considered.
One of the critical challenges facing disclosure today is the sheer volume of digital evidence. With smartphones, social media, and other digital platforms generating vast amounts of data, identifying what is relevant and what is not has become more complex. The Investigation Management Document (IMD) and Disclosure Management Document (DMD) were introduced to address these challenges by providing a structured approach to disclosure in complex and multi-faceted investigations. These documents help manage expectations, set clear lines of responsibility, and ensure that all material is identified and reviewed appropriately.
The concept of rebuttable presumption has also been introduced in the guidelines, which means there is a presumption that certain categories of material, such as unused digital evidence, may be relevant unless proven otherwise. This places additional responsibility on investigators and disclosure officers to ensure thorough assessments are made at the earliest stage.
Success Stories: When Disclosure Works
While much of the focus is on disclosure failures, there are notable success stories where the correct handling of disclosure has ensured justice is served. In R v Gary Dobson & David Norris (2012), the prosecution of two of Stephen Lawrence’s murderers, effective disclosure of forensic evidence played a critical role. Although Lawrence’s murder occurred in 1993, it was only years later that advancements in forensic techniques and a rigorous approach to evidence disclosure led to convictions. This case demonstrated that when disclosure is handled correctly, even historical cases can see justice done.
Another success story is the R v Anthony Williams (2020), where a robust disclosure process helped bring justice in a case involving a violent assault. The prosecution’s clear and early engagement with the defence, combined with a thorough review of digital evidence, led to the conviction of the offender without lengthy delays or procedural challenges. This case is an example of how the right approach to disclosure benefits both sides by facilitating a fair and transparent legal process.
Meeting Disclosure Challenges in 2024 and Beyond
While improvements have been made, disclosure remains one of the most challenging aspects of criminal justice. As technology evolves and the volume of evidence grows, disclosure officers and investigators must be properly trained and resourced to manage these new challenges effectively.
One significant area of concern is the distinction between sensitive and highly sensitive material. Sensitive material, such as information related to national security or police informants, must be handled with care to protect the public interest. At the same time, ensuring that the defence has access to material that could assist their case is paramount. Navigating this balance requires experienced disclosure officers and clear communication between the prosecution and defence.
Looking forward, the increased emphasis on pre-charge engagement is a promising development. By encouraging early discussions between both parties, many disclosure issues can be identified and resolved before they become critical. This not only improves the efficiency of the process but reduces the likelihood of cases collapsing due to late disclosures.
In conclusion, disclosure is a vital component of the criminal justice system that directly impacts the fairness of trials and the protection of individual rights. While past failings have shown the catastrophic consequences of poor disclosure practices, reforms such as the AG Guidelines 2024, IMD, and DMD provide a framework for improvement. With better training, resources, and early
engagement, disclosure can become a force for ensuring justice is served—both for the innocent and the guilty.
Red Snapper Learning in conjunction with Police Oracle are hosting a free webinar event in support of this area hosted by associate trainer Paul Keitch who specialises in this delivering training for us in this area links to the event as follows:
