Author: Adrian Ramdat BA Ed, PGCE – Specialist Trainer
September 2023
Disclosure has been under the spotlight and in the headlines more and more recently but does it deserve the ‘bad press’ that it is getting and why is it causing so many issues?
The disclosure regime is under regular review and subject to more frequent updates in terms of the Code of Practice and Attorney General’s Guidelines than at any stage since it was enacted and with cases such as the Andrew Malkinson case, whereby he served 17 years in prison for a sexual offence that he didn’t commit, it doesn’t make for good reading.
Especially as in the Andrew Malkinson case, it appears, if the media reports are to be believed, that the police and CPS were aware of the material that undermined their case, in the form of a DNA profile of the offender, as far back as 2007.
According to the figures from the Crown Prosecution Service (CPS) for the financial year 2022/23, there were a total of 3154 cases that resulted in a ‘non-conviction’ because of disclosure issues and of this figure, disclosure was stated as being the primary reason for the case not being successfully prosecuted in 1650 cases.
This means that in those 1650 cases, the reason for the failure was a direct result of the person investigating the case as CPS state the reason in these cases as being ‘Police/Investigator fault, including the timeliness and quality of disclosure – this reason applies when issues arising in the unused material were not dealt with adequately by the investigator, including failure to bring material to the attention of the prosecutor in a timely way and failing to provide schedules or requested material.’
These figures are only for prosecutions conducted by CPS in England & Wales and there are a number of prosecutions undertaken by investigative bodies that are not prosecuted by CPS, so the figure overall is likely to be higher and statistically, there is likely to be a similar ratio for other jurisdictions in the UK.
These figures are quite startling and even more so when we see that they are double the figures for failed prosecutions for 2015/2016, so on the face of it the situation seems to be getting worse rather than better, especially when the number of prosecutions was higher in 2015/16 so pro-rata the current situation is even worse.
Some of these failings can be put down to better recording of the reasons for non-conviction and also for both investigators and prosecutors being more aware of the disclosure issues in cases than 8 years ago but they are still too high as that possibly means that 3154 people that should have been convicted of criminal offences, including sexual offences, hate crimes and violent crimes didn’t face justice.
What is the solution?
There isn’t an easy answer to this as there are a number of issues across the criminal justice system that cause these failings. In fact, when I deliver disclosure training, I often refer to a quote by Sir Nigel Sweeney KC, when he was the lead prosecuting barrister at the Old Bailey.
He spoke of “… a litany of examples of failures in the system. A comprehensive failure on the part of police officers, prosecuting counsel and judges to understand the principles of disclosure. In particular the PII application process.”
If we dissect this, it shows that he was laying blame across the whole of the disclosure process from investigators through to the judges.
Having been involved in a number of investigations and prosecutions first-hand and having seen this up close, there are a lot of cases where not only did the investigators lack knowledge of the disclosure regime but the prosecuting lawyer also had significant gaps in their knowledge and then a judge was appointed to hear the case that has little if any experience in the criminal arena.
In fact, I often recall a new Crown Court judge who on his first day was asked if he could preside over a ‘PII hearing for a police case involving a CHIS’. He immediately agreed but before proceeding to court, asked a colleague if he could ask two questions… the first was ‘what is PII?’ and the second ‘What is a CHIS?’
In part of the training that I deliver… we look at how investigators really need to understand the disclosure process and not just think of it as an administrative function or that others will ‘make up for the gaps in their knowledge’.
Sadly, I see too many delegates coming to the training, even for our Advanced & Specialist Disclosure training that have never seen, let alone read, the Code of Practice on Disclosure and even fewer that have read the Attorney General’s Guidelines.
One of the areas that cause a number of issues in the disclosure process is problems with scheduling material by the investigator or disclosure officer.
In my opinion, for what it is worth, having trained thousands of investigators and lawyers in disclosure over the years and advised various parties on disclosure, particularly around sensitive material, investigators, disclosure officers and lawyers really need to understand not only the disclosure process but also have the required underpinning knowledge.
Yes, it can be tedious to have to read the law, codes of practice, guidelines and policy but it is crucial that they understand not only their role but also what others such as prosecuting lawyers and judges should know so that are aware when things may be going astray and can manage the other parties, offering advice and where they need to look for guidance on particular matters.
I am not just saying this, from a detached training perspective, but I have personally done it a number of times, including a case where a lawyer thought public interest immunity should be applied for in all cases where covert tactics have been used or a case in which the judge didn’t understand that he could permit ‘limited disclosure’ of material whilst protecting other sensitive materials. (He then asked me if I could explain Public Interest Immunity to him in his chambers, which I was more than happy to do).
If you or your staff don’t understand disclosure then it is imperative that you get some training, whether that is ‘the basics’ or more advanced issues such as dealing with sensitive material or covert tactics and I would suggest that it is delivered by a practitioner who has first-hand experience of disclosure and the court process. Obviously, The Signature Brand would be more than happy to be your preferred training company for this.
Additionally, to assist you in keeping up to date, The Signature Brand now offer Bitesize Disclosure training events that can be delivered to groups of up to 50 delegates so that all of the attendees can remain current and demonstrate that you have undertaken CPD. These events are delivered using Ms Teams so you can log on and it only takes an hour or so out of your day to maintain the level of knowledge that you need.
Details of this can be found www.thesignaturebrand.co.uk/training/covert-skills-training/bitesized-disclosure/
Anyway, to answer the question that I posed at the start of this article, yes I think at the moment, cases that are lost because of disclosure issues do deserve the ‘bad press’ that they get but I also think we need to shout about the tens of thousands of prosecutions that succeed where disclosure has been applied correctly but rarely make the headlines.
On a final note, don’t let any of your cases become one of the negative statistics for 2023, 2024 or beyond, where a case is lost because of disclosure issues. Contact us now to find out how we can assist you with your disclosure training, without any obligation and with no high-pressure selling.
In addition to delivering a number of in-house training events on Disclosure, the author of this article, Adrian Ramdat, is also delivering a workshop on Disclosure for The Investigator on the 7th December 2023, which is aimed at investigators across the whole spectrum. Details of this event can be found at https://www.the-investigator.co.uk/disclosure
