A shortage of prosecutors and experienced police officers has left investigators “struggling to cope” with obligations to disclose key evidence to defendants in criminal trials, according to a critical inspectorate report.
Although there have been significant improvements, the Crown Prosecution Service is failing to give proper charging advice – over material that should have been handed over or had not been used – in almost half of cases.
Kevin McGinty, HM chief inspector of the CPS, said the underlying problem was a lack of resources.
“The challenge facing the CPS and police is considerable,” he said. “The CPS has been struggling to deal with its caseload without having the numbers of lawyers needed to do it.
“Similarly, the police have struggled with the impact of stretched resources and the lack of understanding of disclosure obligations by inexperienced police officers.”
The 82-page report, which reviewed more than 1,100 sample prosecutions, found that high-priority areas such as homicide, terrorism or complex fraud are mostly dealt with by specialist police teams and CPS units that understand the law and have sufficient resources.
The difficulties over disclosure occur in what is termed as “volume crown court” cases where there are “stretched police resources and [a] lack of understanding of criminal justice matters by large numbers of inexperienced police officers who are only infrequently required to compile a prosecution file”.
The review added: “The quality of case preparation, and thus the handling of disclosure, is also often undermined by under-resourced CPS staff who are struggling to cope with the sheer volume of work … almost without exception, those faults have been caused or exacerbated by the problem of too few legal staff being spread too thinly over a volume of work of ever-increasing complexity.”
Defendants have the right to know the evidence against them that the prosecution says proves they are guilty and also, subject to limited exceptions, what unused material exists that could undermine the case against them.
The ubiquity of mobile phones, laptops, CCTV and other digital information has inflated the volume of material available in even routine criminal investigations, adding to work pressures on prosecutors and detectives.
The collapse of a series of rape trials against Liam Allan and others at the end of 2017 exposed the failure of the CPS and police to hand over crucial details to the defence to ensure that the accused received a fair trial.
The HMCPSI (Her Majesty’s Crown Prosecution Service Inspectorate) report, which was delayed by the general election, examined 555 live trial files and 560 pre-charge decisions spread across each of the 14 geographical CPS areas.
It says the focus on disclosure procedures in police and CPS is having an impact but that in many instances “the improvement is from a low baseline”, adding that performance will “need to improve further to reach an acceptable standard”.
Among key findings were that the number of cases where the CPS charging advice dealt properly with disclosable and non-disclosable unused material, fully meeting the required standard, was 49%. This is an improvement from the last similar assessment in 2017 when the comparable figure was 29%.
There has been a marked improvement in cases where the CPS correctly advised the police in the charging advice on reasonable lines of inquiry – rising from 46% in 2017 to 74% now.
Prosecutors improved compliance with the requirement to review defence statements and provide comments and advice to police from 41% of cases to 60% of cases over the same period.
One area of performance deemed “unacceptably low” is where the CPS provides feedback to police when they identified failures in the handling of unused material in pre-charge cases.
There has been fierce criticism of the CPS’s handling of rape cases, where the number of convictions has fallen sharply while complaints surge. About 16% of the completed trial files examined by HMCPSI involved rape and serious sexual offence prosecutions.
Amanda Pinto QC, chair of the Bar Council, which represents barristers in England and Wales, said: “We must not forget that victims of crime and those accused of committing crimes can be the most affected by disclosure failures, and the fact that in less than 50% of the cases inspected was disclosure done properly is not reassuring to the public.
“As the report acknowledges, there has been further investment in the CPS. Despite help from the Bar and solicitors to improve disclosure in all cases from the smallest to the most complex, there is more to do.
“There still needs to be more investment in people, training and resources in the police, the CPS and the criminal justice system generally, to tackle the pervasive problems with disclosure.”
Max Hill QC, director of public prosecutions, said: “Working with the police, we have left no stone unturned in the last two years analysing both investigations and prosecutions to see where changes are needed.
“It is encouraging to see progress is being made but, clearly, much work is still to be done if we are to provide the service the public rightly expect.
“We have always been clear that these significant cultural changes will not happen overnight – but as we reach this two-year milestone, our commitment to get this right remains as strong as ever.
“Thanks to an £85m investment in CPS, we are also starting to recruit more prosecutors to futureproof our work around disclosure and fully meet the challenges we face.”