Disclosure Failures in Sexual Offence Cases

At the beginning of this year, the BBC discovered that the Crown Prosecution Service (CPS) had dropped over 900 rape and sexual offences cases in 2016-17 (almost double the figure in 2014-15) because of failures in the disclosure process. The revelation followed the publication of two reports in 2017 (the HMCPSI and HMIC joint inspectorate report on disclosure of unused material, and the Mouncher investigation report) that were scathing of how the police and CPS share information with the defence and handle disclosure.

In response, the CPS decided to review 3,637 rape and serious sexual offences cases in England and Wales to assess whether disclosure was being properly managed. As a result of that assessment, 47 cases were stopped because of disclosure issues, even though only five of those cases were classified as having those issues on the CPS case management system. The consequences for all those involved, especially the accused and complainant, are likely to be huge.

In this blog post, I provide an overview of the problems surrounding disclosure and the measures being taken to improve police and CPS handling of disclosure in rape and sexual offence cases. If you or a loved one are facing serious allegations of sexual misconduct, contact me as soon as possible. The earlier you get the right legal advice, the better the outcome is likely to be.

Disclosure issues

Disclosure is a fundamental element of the right to a fair trial. It requires the police and prosecutors to properly record all relevant material and provide the defence with any material that may be capable of assisting or undermining the prosecution's case or assisting the case of the accused. This requirement, and the duty to keep disclosure under review, applies from when police request a charging decision through to the end of the case.

In its recent review of pre-trial rape and serious assault cases, the CPS re-assessed the strength of the prosecution’s cases by looking for evidential weaknesses. This included identifying whether all reasonable lines of enquiry had been pursued and whether the disclosure strategy was appropriate and conducted effectively. Disclosure issues were found at nearly every stage: police and prosecutors taking too long to review material following a decision to charge under the Threshold Test (when an early charging decision is made); police not analysing communications evidence (such as texts, social media and emails) until after charge; third-party material (such as medical and social services records) not being properly handled; and cases not progressing effectively owing to a lack of proactive management and timely engagement between the prosecution, defence and the court.

Therefore, it should not come as a surprise that changes need to be made. The problems relating to disclosure are long standing. For many years, we have had to fight to get the prosecution to comply with their duty to disclose information vital to our clients' cases. Such a systemic, deep-rooted failure undermines our criminal justice system, and it is about time that trust and confidence in the process be restored.

'A sea-change in how disclosure is managed'

The CPS has acknowledged the importance of disclosure and the need for change, and has been taking action to address casework failures. As Alison Saunders, the Director of Public Prosecutions, said:

“Getting disclosure right is a fundamental part of a fair criminal justice system…My priority, working closely with the police, is to put in place effective measures that bring about a sea-change in how disclosure is managed so that complainants and suspects alike can have confidence that every case is fair”.

By the end of September, all prosecutors in England and Wales should have received new disclosure training aimed at reinforcing fundamental principles and ensuring disclosure is an integral part of the investigative and prosecution process. The CPS is also looking at long-term solutions, such as using technology to better cope with large volumes of communications data.

New processes and procedures are also being introduced. For example the CPS and police have a new protocol on the use of third-party material that is aimed at identifying material as early as possible in the investigation, improving its scrutiny and ensuring disclosure is appropriately determined and more consistent.

Perhaps most welcomed regarding defence strategy is the extension of disclosure management documents. Regularly used in serious fraud and organised crime cases, these outline the prosecution’s approach to disclosure and should help both the court and defence identify disclosure issues and evidential weaknesses at an earlier stage.

This multifaceted approach to improving disclosure in rape and sexual offences cases is to be welcomed. Cases concerning serious sexual offences and rape allegations are notoriously difficult to prosecute, but especially to defend. The removal of barriers to accessing vital information will, to a certain extent, help redress the balance. However, it is unfortunate that for some these developments come too late. Defence barristers will need to continue their exceptionally close scrutiny of how the police and prosecution are handling disclosure issues in their clients’ cases.

Mark Kelly Sexual Offences Defence Barrister London, UK

My clients benefit from representation by a trusted professional and highly experienced barrister who is known for his strategic thinking, transparency and unwavering attention to detail. With a reputation and track record that is second to none, you can be sure your rights will be fought for.

I regularly assist clients in Manchester, Birmingham, Leeds, London, Bristol and the rest of the UK. If you have any queries about issues raised in this blog, or if you want to discuss an investigation, case or appeal, please do not hesitate to get in touch with me directly on 020 8108 7186 or fill out the contact form and I will get back to you as soon as possible.

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21 March 2019

Case of YZ (and A.N.other) 2019 EWCA CRIM 466 judgment handed down on 19 March 2019. Our client sentenced to a term of imprisonment of 6 years after entering guilty pleas for sexual assault of a child and the making and distribution of indecent image.