Disclosure is one of the cornerstones of the criminal justice system and disclosure of unused material is a key component of the investigative and prosecution process. It should be considered at the point where a criminal investigation begins and be at the forefront as the case progresses.

Every unused item that is retained by police and considered relevant to an investigation should be reviewed to see whether it is capable of undermining the prosecution case or assisting the defence case. If either factor applies it must be disclosed to the defence.

An inability to deal with disclosure appropriately can have a negative impact on the efficiency of the justice system, incur extra costs and cause emotional distress to victims, witnesses and defendants.

This inspection by HMCPSI and HMIC identified a number of issues which are contributing to widespread failures across the board by both police and prosecutors.

Police scheduling (the process of recording details of sensitive and non-sensitive material) is poor and this, in turn, is not being challenged by prosecutors. 22% of schedules were found to be wholly inadequate, with the most common failing being a poor description of items, with officers often just compiling lists rather than explaining their contents to help the prosecutor.

Police are routinely failing to comply with guidance and requirements when completing and recording data, such as the non-sensitive disclosure schedule (known as MG6C). Many officers submitted schedules that had missing or deficient data and were often ignorant of processes behind sensitive material, such as information for warrants. The inspection found that in 33% of cases the Disclosure Officer’s Report, the MG6E, was either not supplied at all or was wholly inadequate.

The College of Policing is supposed to provide training on disclosure. Many officers admitted they lacked confidence in their role and responsibilities as disclosure officer. Some forces tried to provide bespoke courses but this risks duplication, inconsistency and inaccuracy. In the absence of central guidance, this confusion will remain.

Prosecutors are expected to reject substandard schedules and there was little evidence of such challenge occurring, with a culture of acceptance prevailing. There was also poor decision-making by prosecutors on the Criminal Procedure and Investigations Act (CPIA) test for disclosure. In 54% of cases prosecutors simply endorsed schedules without recording their reasoning. This lack of input to the police and a failure to manage disclosure can lead to chaotic scenes outside the courtroom. Judges expressed a lack of confidence in the prosecution’s ability to manage the disclosure process.

There were further failings in maintaining a complete audit trail of actions and decisions setting out the prosecution disclosure process. In the file sample, almost half of the disclosure record sheets were deficient, with only 13% satisfactory. Reasons given were a lack of time, limited resources and cumbersome IT systems.

There was poor supervision of standards, although where police forces have introduced quality control mechanisms this was found to improve the quality of data. The police national disclosure working group has been revived, and is working closely with the CPS to update the Disclosure Manual of Guidance.

The exchange of information and documents between the police and CPS is often hindered rather than helped by technology, with a number of police systems presenting problems. The net result is items are often mislaid or lost, or inaccurately stored or uploaded, leading to delays.

There should be a strict timetable for change.

Immediately:

• all disclosure issues relating to unused material to be identified at the charging stage.

Within six months:

• the CPS to comply with the Attorney General’s Guidelines on Disclosure, with an allocated prosecutor reviewing every defence statement and giving prompt guidance to police;
• police forces to improve supervision of unused material;
• CPS Compliance and Assurance Team to begin dip sampling;
• all police forces to establish role of dedicated disclosure champion of senior rank;
• a system of sharing information between CPS Areas and Headquarters to monitor performance;
• CPS and police to develop effective communications processes.

Within 12 months:

• the College of Policing to introduce a disclosure training package;
• the CPS and police to review digital case management systems.

The inspection examined 90 random Crown Court case files from various police teams which were dealt with at CPS Area level, plus 56 other files where there were known disclosure issues. The examination was supported by focus groups, interviews, unannounced visits to the Crown Court and surveys to elicit feedback on the disclosure process.

Making it Fair: The Disclosure of Unused Material in Volume Crown Court Cases (PDF)