An inspection of the handling by the CPS of the disclosure of unused material in the Crown Court

In 2017 HMCPSI published a joint inspection report Making it Fair: The Disclosure of Unused Material in Volume Crown Court Cases in which we set out that the failure to deal effectively with disclosure has a corrosive effect on the criminal justice system. Poor handling of disclosure undermines the principles of a fair trial which is the foundation of the criminal justice system. It adds delay, cost and increases the stress faced by witnesses, victims and defendants. It may result in a complete failure of proper process, either by stopping a trial from going ahead, thereby depriving the victim of justice or convicting an innocent defendant. Both amount to miscarriages of justice.

The 2017 report findings stated that across the criminal justice system there appears to be a culture of defeated acceptance. The 2017 report set out that if there was to be any improvement there needed to be a determined cultural change if the police and CPS are ever going to comply fully with what the law requires of them. Since the publication of the joint inspection report the police and CPS have worked together to develop a series of measures designed to improve performance, including major training programmes both for police officers and prosecutors.

In May 2018 the CPS invited HMCPSI to undertake an examination of current casework in order to assess progress. Given the concern that we had expressed in 2017 we agreed that undertaking some targeted follow-up activity would be useful and would set out if progress was being made. This report sets out the findings from our assessment of a 555 live cases which we examined two weeks before the trial was due to start. We also looked a 560 cases at the charging stage, to assess whether the focus and extensive training package delivered by the CPS was leading to improvement. To ensure that we were able to assess progress fairly we split the file examination into tranches, looking at cases from all 14 CPS Areas at six different stages of when new training had been implemented.

We have found signs of improvement in this inspection. Our file examination shows that the recent focus on disclosure both in the police and the CPS is having an impact. This is to be welcomed, but our findings show that the improvements come from a low baseline of performance. Performance will need to improve further before it will reach an acceptable standard. An acceptable standard would be full compliance with obligations; this would result in an assessment of 100% by inspectors.

The report sets out some examples of significant improvement in CPS performance we found in the 555 live trial cases. The figures quoted in the report are the overall national position; the data we have published today also breaks this data into 14 CPS Area performance. Closer examination of this Areas data highlights that in some places performance is much better than the average, but there are some Areas that will need to make some concerted effort with local police forces and their own processes if standards in disclosure handling is to reach the necessary standard.

Highlights of some significant improvements in national performance between the tranches including:

• Improvement from a baseline in tranche one of 46.3% to a final position of 73.7% in cases examined of the CPS correctly advising the police in the charging advice on reasonable lines of enquiry.
• An increase of over 20% in the number of cases where the CPS charging advice dealt properly with disclosable and non-disclosable unused material being assessed by inspectors of fully meeting the required standard (from 28.6% to 49.2%).
• Compliance with the post-charge duty of initial disclosure in relation to non-disclosable unused material improving from 55.4% to 63.4% and in relation to disclosable unused material from 62.0% to 72.3%.
• Compliance with the duty of continuing disclosure in relation to non-disclosable unused material improving from 69.8% to 83.8% and in relation to disclosable unused material improving from 72.6% to 82.8%.
• Compliance with the requirement for the prosecutor to review the defence statement and provide comments and advice to the police improved from 41.2% to 60.0%.
• There was improvement in pre-charge cases of the CPS identifying and feeding back to the police failings of the police handling of unused material from an initial baseline of 5.6% to 15.5%; however this is still very poor performance as it means that in over 80% of cases the CPS failed to feedback to police.
• CPS charging advices dealing properly with disclosable and non-disclosable unused material improved from 33.2% to 55.8% and there was improvement of the CPS advising the police at charging on reasonable lines of enquiry from the initial baseline of 75.9% to 93.8%.

The findings in the report confirm that the range of internal measures being implemented both by the police and the CPS including the extensive training programmes and more rigorous internal quality assurance is making a difference. However our findings also show that in some areas of performance that need to significantly improve. The fact that in over 80% of cases the CPS failed to feedback to the police is a concern if there is to be any learning from feedback. This may highlight that the culture of defeated acceptance is yet to be broken.

Both the police and CPS have been provided with additional resources in this year’s comprehensive spending review which will result in an increase in police numbers and in CPS prosecutors. This is to be welcomed and will relieve some of the pressures faced by those in the criminal justice system who are carrying unrealistic caseload. However, if the improvements in case quality and compliance with disclosure we have seen in this inspection are to continue then effective training is crucial. Investing in training and supervision must be a priority to maintain an impetus in improving the handling of disclosure across the criminal justice system.

Given that this inspection was undertaken to assess levels of improvement in established casework processes there we felt that it would be counterproductive to make specific recommendations. The CPS (along with the police) need to maintain a focus on this aspect of performance.

Disclosure of unused material in the crown court January 2020