June 2017 saw the publication of a joint report by the Crown Prosecution Service Inspectorate (HMCPSI) and Her Majesty’s Inspectorate of Constabulary (HMIC) following an inspection into the disclosure to the defence of unused material in volume Court cases. Its’ title ‘Making it Fair’ speaks volumes and sets the tone for the report which highlights fundamental flaws in the system which I, as a proactive defence barrister of 30 years standing, along with those who instruct me, have known for many years.
The Joint Report details the requirement for the police and CPS to evaluate any evidence from the starting point of the criminal investigation and throughout the entire progression of the case to ascertain whether it may be capable of ‘undermining the prosecution’ or ‘assisting the defence case’. If it is possible a piece of evidence meets either test, it should be disclosed to the defence, at the outset. Should there be no such evidence, a statement confirming this should be provided.
Whether a case appears simple or more complex, there is always the need for us as your defence team to scrutinise the unused schedule carefully and to reflect upon what we would expect to find in the unused schedule in order to establish whether the Crown or police or Third Parties possess or have access to material which may be capable of undermining the prosecution case or is capable of assisting the defence. Our job is to make sure any such material is disclosed. It is not sufficient for us to be passive. It is necessary for us to actively seek disclosure and not assume that the tests applicable to disclosure have been properly applied. As this report demonstrates a passive approach by defence teams could mean material crucial to the defence of the client never sees the light of day and this could lead to a miscarriage of justice.
We do not rely on the constant evaluation of evidence by the Crown or police during the investigation or through the trial process, which is just as well, because as this report makes clear, on many occasions, that job is not being done properly, or in compliance with the crown’s obligations. It is our firm belief that any failure of the defence to understand the duties of the prosecutor in this regard will undoubtedly weaken any defence.
One of the tools we have available to us to force the Crown to comply with its disclosure obligations is Section 8 of the 1996 Act which allows us to apply to the court for the disclosure of any material we have reason to believe is in the prosecutors’ possession which has not been disclosed. We exert substantial pressure by means of our comprehensive defence statements and detailed requests for disclosure.
We have no hesitation utilising s8 applications to ensure full and proper compliance with obligations, when all other requests have failed. That is proactive defending and encapsulates one important aspect of our strategic approach to defence that enables us to maximise opportunities for successful outcomes.
The Joint report concluded that there are a number of reasons for the ongoing failures in the process of disclosure and offered a number of suggestions for improvement. What was interesting was the acknowledgement that what should be foremost in the minds of those entrusted with such a vital task is an accused’s right to a fair trial. The report summarised,
“Above all, there needs to be a cultural shift that approaches the concept of disclosure differently, that sees it as key to the prosecution process where both agencies add value, rather than an administrative function. Only then will assurance be provided that the prosecution agencies are motivated in their desire for a fair trial, rather than one that focuses on the prosecution case and pays insufficient heed to potential evidence for the defence that lies within the unused material in their possession.”
As proactive defence lawyers, we welcome such a cultural shift but we do not sit on our laurels and assume that it is happening, or that it is going to happen. That is one means by which we protect the interests of our clients and fight to ensure, in so far as possible, that they receive a fair trial and we thereby avoid miscarriages of justice.
My professional experience, approachability and considerable expertise means that you will be in a very safe pair of hands when it comes to your defence, and my track record is second to none. I consistently obtain favourable results for clients accused of a variety of fraud, sexual offences, and financial and regulatory cases.
Serving Manchester, Birmingham, Leeds, London, Bristol and the rest of the UK. If you wish to discuss your case, please do not hesitate to get in touch with me directly on 020 8108 7186 or fill out a contact form and we will get back to you as soon as possible.
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