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With the recent unveiling of the Attorney General’s guidelines on disclosure rules, law.com. looks at lawyers’ views on this most contentious of criminal law topics. After four years of criticism from criminal lawyers England’s government has finally caved in on the Criminal Procedures and Investigations Act of 1996. Lord Williams of Mostyn’s guidelines are an intermediary step. A radical overhaul of the Act is expected once Home Secretary Jack Straw’s disclosure research group draws its conclusions next year. For now lawyers will have to make do with the new guidelines. Although non-statutory, the Attorney General says that, as senior ACPO officers endorse them, police forces which fail to enforce them will be committing a disciplinary offence. The guidelines attempt to deal with current conflicts of interest by requiring a senior police officer to review the disclosure process rather than — as frequently happens — relying solely on a junior officer who is also part of the investigation team. The Attorney General also advises prosecution lawyers and counsel to ensure that material is provided to the defense. That material should include even those papers that police claim are not useful to either set of lawyers. This is a step towards the pre-1996 position, when the defense team simply took everything it required from the police station. But the essence of the unpopular current disclosure regime remains intact: it is still a police officer who judges which evidence will be most useful for the defense’s undermining of the prosecution’s case. Subsequently the defense issues an outline statement of arguments and evidence, and again it is the police that hands over the second raft of evidence. Hatred of this existing system runs deep, and criminal lawyers simply do not have faith that the system will enforce disclosure reliably. Many guests at last November’s packed Bar Council vented their spleen at the failure of the police — and occasionally the CPS — to disclose vital evidence. Those critics pointed to the long history of miscarriages of justice caused by disclosure failure — and claimed that the same mistakes are still being made. The police response, voiced by Kent Chief Constable Sir David Phillips: that officers are overworked, overwhelmed by evidence — and that disclosing evidence acquired from police informants could lead to their identification and jeopardize their safety. FAILURE TO COMPLY According to DPP David Calvert-Smith, it is possible to operate disclosure within the confines of the Criminal Procedures Investigations Act 1996; the fault lies with that act’s enforcement. “There are failures to comply with legislation, and the spirit of the legislation,” he says. The CPIA came into effect in 1997 and drastically revised a system in which the defense had previously been able to inspect all police evidence. Lawyers had questioned the CPIA since its inception; that criticism reached a crescendo when the M25 Three case came to the Court of Appeal this year. Judges ruled that Surrey Police should have disclosed the failure of suspect-turned-witness, Norman Duncan, to name defendant Randolph Johnson in an initial interview. The court described it as a “material irregularity” and a breach of Johnson’s human rights. The CPS has since promised to invest funds to combat disclosure abuse, using extra funds from the government’s Comprehensive Spending Review to put into effect the recommendations made in March by its inspectorate. The critical report is the first of its kind since the CPIA’s implementation and makes for worrying reading. The inspectorate found defective schedules of non-sensitive material in 39 per cent of 631 files sent by police to the CPS — and 7.1 per cent proceeded to court with schedule items missing. There were also queries over the omission of material in five out of 27 applicable cases. In all, the inspectorate made 33 recommendations for improvement. Of particular concern was the fact that many prosecutors apparently have poor knowledge of the guidelines, and frequently disclose material outside the Act’s tight time requirements. Disclosure rule concerns were echoed in the Bar Council’s recent recommendations to Lord Justice Auld’s inquiry into the reform of the criminal justice system. MISCARRIAGE OF JUSTICE The report highlighted the ever-present miscarriages of justice threat as the police continue to get it wrong: “There are far too many instances of actual injustice being done to defendants under the current disclosure regime.” Malcolm Swift QC, leader of the North Eastern circuit, is critical of the police record. “Disclosure is at a minimum, and because the defense are ignorant about what evidence the police have in their possession they simply don’t know what to ask for,” says Swift. The Bar report says police and the CPS are badly placed to review material from the defense’s point of view — so much so that it claims in some cases that police have withheld material to protect the potential credibility of prosecution witnesses. One senior barrister says at least one court north of England has had cases in which negative fingerprint evidence has been withheld as ” . . . it is not helpful to the prosecution to (disclose it).” Another barrister in West Yorkshire points to the case of a woman who faced charges of cruelty to children and had no previous criminal record; she claimed that an incident in which a child in her charge had been hurt was an accident. Police failed to disclose a recording of a phone conversation she had made reflecting her “deep distress” over what had happened. It was left to the prosecution to discover this crucial evidence and hand it to the defense. The case was thrown out. A recent BBC Panorama program focusing on the failures of the disclosure regime highlighted the case of murder suspect Damien Robinson. Police had linked a balaclava found at a flat belonging to Robinson’s friend to Robinson himself. However, hair found in the balaclava was Caucasian; Robinson is black. This fact was not disclosed. POLICE FAILURE In addition, police failed to disclose a 999 log of a radio message soon after the incident asking officers to look for people of mixed race. Again, the case was thrown out. Senior barrister John Riley of 4 King’s Bench Walk wrote the summary of the Bar Council’s report. He says: “There are currently many cases where disclosure has been withheld. . . . Experience shows that this is the situation in many cases and often in the most sensitive of cases. Ironically, the CPIA disclosure regime has provided defense advocates with opportunities to stop perfectly sound prosecutions.” He points to how the terminology used in the CPIA weighs heavily in favor of the prosecution. For instance, the Act states that primary disclosure evidence to be handed to the defense includes that which “. . . in the Prosecutor’s opinion might undermine the case for the prosecution.” Riley explains that this wording leaves too much room for variant interpretation in the way prosecutors deal with disclosure. There are more comprehensive calls being made now than ever before for overhauling current disclosure procedures. The Attorney General’s guidelines may be just the start of repairing the damage.

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