Bob Neill MP: Disclosure process is under immense strain, putting the system's reputation at risk
5 min read
Chair of the Justice Select Committee, Bob Neill MP, writes about the Justice Committee's recent report on the disclosure of evidence in criminal cases.
We often talk about the importance of “the Rule of Law”. It is a key principle in any properly developed democratic society, but it is much more than just a concept. It is deeply practical too.
One of its fundamental pillars is that the law must be fairly and consistently applied. As Lord Hewart, an esteemed former Lord Chief Justice, famously remarked, for it to work, justice must not only be done, but seen to be done. After all, our judicial system would be worth very little if it did not hold the confidence of the people it serves.
That is why the recent collapse of a number of high-profile cases, which predominantly related to accusations of rape and serious sexual assault, and fell due to failures in the disclosure process, are of such concern. They cast doubts on the fairness of our legal system, forcing us to question whether the right checks and balances are in place to ensure justice is indeed being done. It is against that backdrop that the justice committee published last week a detailed report on the disclosure of evidence in criminal cases.
Disclosure is the process by which material collected by the police during an investigation is made available, first to prosecutors, and subsequently, subject to certain rules, to defence teams. But when appropriate evidence is not disclosed, we create a highly undesirable situation in which judges and magistrates, through no fault of their own, are asked to decide on the guilt of an accused person without having been able to consider all of the relevant information related to the case. From there, it is easy to see how miscarriages of justice occur.
In fact, in 2016 the Criminal Cases Review Commission concluded that the most frequent cause of miscarriages of justice was the “failure to disclose to the defence information which could have assisted the accused.” What’s worse, these sort of failures are systemic, affecting all types of cases, and even more damning, are a surprise to no one. Problems with the practice of disclosure have persisted for far too long, in clear sight of people working within the system. One of our greatest frustrations when conducting this inquiry was the extent to which these failures, previously identified by similar reports as far back as 2011, have been left, quite flagrantly, unaddressed.
The impact this can have on people’s lives cannot be underestimated. As the outgoing Director of Public Prosecutions (DPP), Alison Saunders, admitted when giving evidence to our Committee, people have been wrongly imprisoned as a result. It can cost an individual their employment, sever close relationships, consume their savings, and even if acquitted, permanently blot their record.
Given that we found inadequate funding to be a common (but not the only) antecedent, these failures are also a slap in the face for your average taxpayer. In short, they create a false economy in which both time and money are wasted. Take, for example, the Legal Aid Agency’s spending of £93.3 million during 2014-15 on defence counsels to represent defendants whose cases never went to trial, excluding guilty pleas. This long receipt of waste, across different public bodies, goes on.
So what do we do?
First, top to bottom, we need a change in culture. Quite frankly, the people who should have led from the front haven’t, and as we heard time and again in the evidence we received, disclosure errors are the consequence of inexperience, poor decision making, inadequate training, and deficient leadership and governance. Particularly in the police, we encountered a perception that disclosure is an administrative headache, when in fact it’s a central facet of the criminal justice process. That must be rectified.
Second, with the volume of evidence being collected increasing and becoming more complex, we need to ensure those working in the sector are equipped with the right skills and technology to do their job properly. A strategy is required to put that in place.
And third, refreshed guidance is needed on how sensitive material should be handled. There are currently too many grey areas that are open to individual interpretation. It must be made clear that the right to a fair trial is an absolute right which cannot be violated to protect the right to privacy.
I believe the Government is taking these concerns seriously. The joint publication of the National Disclosure Improvement Plan in January is a welcome step, as is the Attorney General’s ongoing, broader review. But these problems, like those in other parts of the sector, expose a process under immense strain. Without adequate resourcing, it is difficult to see how meaningful change can be sustained.
The reputation of the system is at risk. Justice must prevail.
Bob Neill is Chair of the Justice Select Committee and Conservative MP for Bromley and Chislehurst.
PoliticsHome Member, the Bar Council have responded to the Justice Committee's report. Andrew Walker QC, Chair of the Bar said "The Government have to accept that there is a clear link between disclosure failures and the sustained budget cuts that it has imposed on all parts of the criminal justice system." Read the full response here.
PoliticsHome Newsletters
Get the inside track on what MPs and Peers are talking about. Sign up to The House's morning email for the latest insight and reaction from Parliamentarians, policy-makers and organisations.
