CPS and police 'routinely failing' to disclose evidence

Prosecutors and police are routinely failing in their duties to disclose crucial evidence leading to cases being pursued that should have been dropped, a review by the attorney general has found.

The report, presented by Geoffrey Cox, calls for a culture of zero tolerance in the Crown Prosecution Service (CPS) and police forces of any failures to hand over relevant material obtained during investigations.

The duty to record, retain and review material collected during the course of inquiries was not routinely being complied with by police and prosecutors, the review said.

“At the least this caused costly delays for the justice system and at worst it meant that cases were being pursued which the evidence did not support,” the report noted. “The impact of these failings caused untold damage to those making allegations and those accused of them.”

The report was commissioned after the collapse of a series of rape cases in which material from mobile phones was belatedly released, undermining confidence in the criminal justice system.

The most notorious cases involved Liam Allan, from Beckenham in south-east London, who was charged with 12 counts of rape and sexual assault.

His trial was abandoned after police were eventually ordered to hand over phone records that should have been provided earlier, including one in which the complainant told a friend: “It wasn’t against my will or anything.”

The CPS subsequently revealed that an internal review discovered 47 rape or sexual offence cases had been halted because evidence had not been properly shared with the defence.

The report said investigators had a duty to conduct a thorough investigation, manage all material appropriately and follow all reasonable lines of inquiry, whether they pointed towards or away from any suspect.

It concluded that disclosure problems were system-wide and identified deficiencies including investigators not pursuing reasonable lines of inquiry that might exculpate the accused, papers not being checked before submission to the CPS and prosecutors failing to examine gaps in investigations. Disclosure, the report said, was often left until the last stage.

Launching the review, Cox said: “For too long disclosure has been seen as an administrative add-on rather than fundamental pillar of our justice system. This ends now. My review sets out practical recommendations and a clear plan of action to which I will hold the leaders of the criminal justice system to account for delivering in their respective areas.

“I am confident that the leaders of the police and prosecution now understand the need for change, and together we will make sure that public confidence in the disclosure system is restored.”

The policing minister, Nick Hurd, said: “Disclosure of evidence is crucial for confidence in police and our criminal justice system. Police leaders have recognised there needs to be a change in culture towards disclosure and I’m pleased to see they are already making strides in this area through the national disclosure improvement plan.”

The spread of digital technology has resulted in vast quantities of data being generated by mobile phones, computers, CCTV and other sources in many more types of criminal investigations.

“It is clear that investigators and prosecutors are facing an unprecedented challenge in dealing with the ever-increasing amount of digital material presented to them,” the report acknowledged.

“The average mobile phone today is capable of holding the data equivalent of about 5 million A4 pages. The average human reader working a 40-hour week would take 40 years to read all that content.” New technology-based methods such as artificial intelligence, it accepted, were required “because [data] growth is outpacing human capacity to handle it”.

The new director of public prosecutions, Max Hill QC, said: “Rebuilding public confidence following the issues around disclosure is crucial … The next phase of the improvement plan will be released soon and will … embed the culture shift which ensures all officers and staff recognise that getting disclosure right is a fundamental part of a fair criminal justice system.”

But Emily Bolton, the legal director of the charity Centre for Criminal Appeals, criticised the report: “While [it] accepts there are serious problems that need fixing, it ignores the plight of those who are already wrongly imprisoned because of police and prosecutors failing to disclose key evidence.

“The attorney general failed to address issues with the law that currently governs access to evidence after conviction, which means it is almost impossible for the innocent to access justice.

“Everyone knows about problems in US criminal justice from shows like Making a Murderer – those problems exist in this country as well but they are hidden by the current law on access to the evidence for appeals.”