A BRIEF HISTORY
This chapter provides the context for the issues explored in the rest of the book. We trace the genesis of disclosure law from its early beginnings to the current regime.
Disclosure began as a relatively informal process, left to prosecution counsel’s duty to act fairly. As was stated in the case of R v Puddick (1865) 4 F & F 497, “…counsel for the prosecution…are to regard themselves as ministers of justice, not to struggle for a conviction….”.
R v Bryant and Dickson
One of the Court of Appeal’s earliest pronouncements on the prosecution’s disclosure duties, was in the case of R v Bryant and Dickson  31 Cr. App. R. 146, at 151:
“In the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence a witness whom the prosecution know can, if he is called, give material evidence.”
Dallison v Caffrey
Two decades later, in Dallison v Caffrey  1 QB 348, Lord Denning MR stated, at page 369,
“The duty of a prosecuting counsel or solicitor, as I have always understood it, is this: if he knows of a credible witness who can speak to material facts which tend to show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence. It would be highly reprehensible to conceal from the court the evidence which such a witness can give. If the prosecuting counsel or solicitor knows, not of a credible witness, but a witness whom he does not accept as credible, he should tell the defence about him so that they can call him if they wish.”
In the same case, Diplock LJ went on to state at pages 375-376 in relation to the prosecutor:
“If he happens to have information from a credible witness which is inconsistent with the guilt of the accused, or although not inconsistent with his guilt, is helpful to the accused, the prosecutor should make such witness available to the defence…”
The Attorney General’s Guidelines 1981 and the definition of “unused material”
In December 1981, the ‘Attorney General’s Guidelines: Disclosure of Information to the Defence in Cases to be Tried on Indictment’ (1982) 74 Cr.App.R. were issued.
For the first time, these guidelines referred to the term, “unused material” which was described as referring to:
“(i) All witness statements and documents which are not included in the committal bundles served on the defence.
(ii) The statements of any witnesses who are to be called to give evidence at committal and (if not in the bundle) any documents referred to therein.
(iii) The unedited version(s) of any edited statements or composite statement included in the committal bundles.”
The Guidelines provided that,
“In all cases which are due to be committed for trial, all unused material should normally (i.e. subject to the discretionary exceptions mentioned in paragraph (6) be made available to the defence solicitor if it has some bearing on the offence(s) charged and the surrounding circumstances of the case.”
Interestingly, those “discretionary exceptions” included statements, “believed to be wholly or partially untrue and might be of use in cross-examination if the witness should be called by the defence” and statements, “favourable to the prosecution and believed to be substantially true but there are grounds for fearing that the witness due to loyalty or fear, might give the defence solicitor a quite different, and false, story favourable to the defendant. If called as a defence witness upon the basis of this second account, the statement to the police can be of use in cross-examination.”
The prosecution were, therefore, given the discretion of deciding when disclosure should be made in accordance with these Guidelines. This discretion also included decisions not to disclose material if it was sensitive.
There then followed a series of Court of Appeal decisions, which allowed appeals based on failures in the disclosure process. The prosecution in these cases were criticised for the way in which they had exercised their discretion under the Attorney General’s Guidelines. By far the most prominent of these authorities was the case of Judith Ward.
R v Ward
In September 1973, a bomb exploded at Euston railway station. Several people were injured but no one was killed. In February 1974, a bomb exploded in a coach carrying soldiers and their families along the M62 motorway. Twelve people were killed and many more were injured. A week later at the National Defence College at Latimer another bomb exploded injuring many people. In October 1974, Judith Ward was charged with three counts of causing explosions likely to endanger life or property relating to the bomb explosions at Euston, on the coach on the M62 and at the National Defence College, and with 12 counts of murder relating to each of the persons killed by the explosion on the coach.
At the trial, the prosecution relied upon confessions and admissions made by Miss Ward in interviews with the police, together with scientific evidence to the effect that traces of nitroglycerine had been found on her person, on articles belonging to her and in the caravan in which she had been staying.
The defence case was that it was clear that she had frequently lied to the police and no reliance could be placed upon the truth of any admission she had made. Judith Ward was convicted of all counts.
After her trial, Judith Ward did not apply for leave to appeal against conviction or sentence, but in September 1991 the Home Secretary, being concerned about the validity of the scientific evidence at the trial, referred the matter to the Court of Appeal, pursuant to section 17(1)(a) of the Criminal Appeal Act 1968.
In R v Ward  1 W.L.R. 619, Judith Ward’s appeal against conviction was allowed. It was held that by deliberately withholding material experimental data on the ground that it might damage the prosecution case, three government scientists had failed in their clear duty to assist in a neutral and impartial way in a criminal investigation. It was also held that failing to disclose relevant records of interviews with Miss Ward, together with witness statements and medical reports which would have supported her defence, namely that the jury could not rely upon the truth of any admission she had made, amounted to a material irregularity.
The Court of Appeal in Ward stated,
“Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened a new line of defence.” (642)
“…We would adopt the words of Lawton L.J. in Reg. v. Hennessey (Timothy) (1978) 68 Cr.App.R. 419, 426, where he said that the courts must
“keep in mind that those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence. […].”
That statement reflects the position in 1974 no less than today. We would emphasise that “all relevant evidence of help to the accused” is not limited to evidence which will obviously advance the accused’s case. It is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered, and from which the prosecution have made their own selection of evidence to be led…” (645)
The Court also made it clear that, in relation to public interest immunity, such decisions should not be made without reference to the court.
The Court of Appeal went on to state,
“What are the lessons to be learnt from this miscarriage of justice? The law is of necessity concerned with practical affairs, and it cannot effectively guard against all the failings of those who play a part in the criminal justice system. But that sombre realism does not relieve us, as judges, from persevering in the task to ensure that the law, practice and methods of trial should be developed so as to reduce the risk of conviction of the innocent to an absolute minimum…
…we believe that the surest way of preventing the misuse of scientific evidence is by ensuring that there is a proper understanding of the nature and scope of the prosecution’s duty of disclosure…The new rules are helpful. But it is a misconception to regard them as exhaustive: they do not in any way supplant or detract from the prosecution’s general duty of disclosure in respect of scientific evidence. That duty exists irrespective of any request by the defence. It is also not limited to documentation on which the opinion or findings of an expert is based. It extends to anything which may arguably assist the defence. It is therefore wider in scope than the rule. Moreover, it is a positive duty, which in the context of scientific evidence obliges the prosecution to make full and proper inquiries from forensic scientists in order to ascertain whether there is discoverable material. Given the undoubted inequality as between prosecution and defence in access to forensic scientists, we regard it as of paramount importance that the common law duty of disclosure, as we have explained it, should be appreciated by those who prosecute and defend in criminal cases. And, if difficulties arise in a particular case, the court must be the final judge.” (675-676)
The Runciman Commission (1993)
The Royal Commission on Criminal Justice (“the Runciman Commission”) (1993) (Cm 2263) also expressed concern about the widely publicised miscarriages of justice of the time,
“…In addition to the terrorist cases where the convictions were quashed in 1990 and 1991, there has been…a fourth case (Judith Ward) where the conviction was quashed in 1992. There has also been a number of cases not connected with terrorism, the most notable examples being those of the Broadwater Farm Three, Stefan Kiszko, and the Cardiff Three…”
The Runciman Commission’s recommendations led to the setting up of the Criminal Cases Review Commission, which we refer to in Chapter Three.
Significantly, Chapter 6 of the Runciman Commission’s Report stated at page 95,
“49. … We strongly support the aim of the recent decisions to compel the prosecution to disclose everything that may be relevant to the defence’s case. But we accept the evidence that we have received that the decisions have created burdens for the prosecution that go beyond what is reasonable. At present the prosecution can be required to disclose the existence of matters whose potential relevance is speculative in the extreme. Moreover, the sheer bulk of the material involved in many cases makes it wholly impracticable for every one of what may be hundreds of thousands of individual transactions to be disclosed.
- In our unanimous view a reasonable balance between the duties of the prosecution and the rights of the defence requires that a new regime be created with two stages of disclosure. The first stage, of primary disclosure, would subject to appropriate exceptions be automatic. The second stage, of secondary or further disclosure, would be made if the defence could establish its relevance to the case. Where the prosecution and defence disagreed on this aspect, the court would rule on the matter after weighing the potential importance of material to the defence.”
Following the recommendations of the Royal Commission, a statutory regime governing disclosure was introduced: the Criminal Procedure and Investigations Act 1996.
Criminal Procedure and Investigations Act 1996
The Criminal Procedure and Investigations Act 1996 (‘CPIA’) set out for the first time a statutory framework for the disclosure exercise in criminal cases.
Under section 3(1)(a) of the CPIA, the prosecution had to make “primary disclosure” of any material which had not previously been disclosed to the accused and which, in the prosecutor’s opinion, might undermine the case for the prosecution against the accused. The prosecution also had to make “secondary disclosure” under section 7(2)(a) after receipt of a defence statement, of previously undisclosed material which might reasonably be expected to assist the accused’s case.
Criminal Justice Act 2003
The Criminal Justice Act 2003 amended the CPIA, by making the disclosure test objective rather than subjective and replaced the “primary disclosure” and “secondary disclosure” stages with the wider concepts of “initial disclosure” and “continuing disclosure”. We discuss these further in Chapter Three.
R v H
In R v H UKHL 3;  2 AC 134;  2 Cr.App.R. 10, the House of Lords gave guidance in relation to prosecution applications to withhold sensitive material from the defence. R v H made it clear that the trial judge on a Public Interest Immunity application was required to give detailed consideration to the material sought to be withheld, that an application made without notice to the defence was only to be made in exceptional circumstances and that exceptionally a special counsel may need to be appointed. We consider this case in more detail in Chapter Seven.
CPIA Code of Practice
The CPIA made provision for the publication of a Code of Practice setting out how police officers were to record, retain and reveal to the prosecutor material obtained in a criminal investigation. The CPIA Code of Practice was published in 2005. A revised version of the Code was published in 2015.
Criminal Procedure Rules 2005
The first version of the Criminal Procedure Rules came into force on 4th April 2005. Since the 2005 edition of the Rules, there have been a number of updates. The latest version of the Rules came into force on 1st April 2019. Part 15 of the current version of the Rules applies in the magistrates’ court and in the Crown Court. It sets out procedure in relation to the following:
rule 15.1: When this Part applies
rule 15.2: Prosecution disclosure
rule 15.3: Prosecutor’s application for public interest ruling
rule 15.4: Defence disclosure
rule 15.5: Defendant’s application for prosecution disclosure
rule 15.6: Review of public interest ruling
rule 15.7: Defendant’s application to use disclosed material
rule 15.8: Unauthorised use of disclosed material
rule 15.9: Court’s power to vary requirements under this Part
These rules set out various procedural requirements in relation to disclosure. By way of example, CrimPR 15.2 states,
“15.2.—(1) This rule applies where, under section 3 of the Criminal Procedure and Investigations Act 1996…, the prosecutor—
(a) discloses prosecution material to the defendant; or
(b) serves on the defendant a written statement that there is no such material to disclose.
(2) The prosecutor must at the same time so inform the court officer.”
Lord Justice Gross’s ‘Review of Disclosure in Criminal Proceedings’ (September 2011)
This review considered the practical operation of the CPIA disclosure regime, with a particular focus on the proportionality of the time and costs involved in cases generating a substantial amount of documentation. Ultimately, no change to the CPIA was recommended. The Review did not recommend the adoption of a “keys to the warehouse” approach, rather it pointed out that care should be taken in seizing more material than was necessary and that excessive detail in scheduling should be avoided. The Review underscored the role of the prosecution and the importance of judicial intervention and active case management:
“Improvements in disclosure must be prosecution led or driven, in such a manner as to require the defence to engage – and to permit the defence to do so with confidence. The entire process must be robustly case managed by the judiciary. The tools are available; they need to be used.” (paragraph 8(iii))
Lord Justice Gross and Lord Justice Treacy’s ‘Further Review of Disclosure in Criminal Proceedings: sanctions for disclosure failure’ (November 2012)
This review considered whether the sanctions for disclosure failures were adequate, but ultimately did not recommend the creation of any additional penalties against either the prosecution or the defence.
‘Protocol and Good Practice Model: Disclosure of information in cases of alleged child abuse and linked criminal and care directions hearings’ (October 2013)
This protocol, which came into force on 1st January 2014, was signed by the Senior Presiding Judge, the President of the Family Division and the DPP, and was also issued with the support of ACPO, HM Courts & Tribunals Service and the Association of Independent Local Safeguarding Children Board Chairs. The stated aims and objectives of this protocol included the facilitation of, “timely and consistent disclosure of information and documents from the Family Justice System to the police and/or the CPS.” (paragraph 3.5)
Attorney General’s Guidelines on Disclosure (December 2013)
These Guidelines replaced the Attorney General’s Guidelines on Disclosure issued in 2005. They consolidated and abbreviated previous guidance that had been given and is still today one of the key reference documents governing disclosure.
‘Judicial Protocol on the Disclosure of Unused Material in Criminal Cases’ (December 2013)
The Judicial Protocol accompanies the Attorney General’s Guidelines (2013) and the two documents are intended to be read together.
Magistrates’ Court Disclosure Review (Judiciary of England and Wales, May 2014)
This Review was established to, “consider the practical operation of the CPIA disclosure regime in criminal cases in the magistrates’ courts, with a particular focus on the proportionality of the time and costs involved in that process.” (paragraph 5)
‘Making it Fair – a Joint Inspection of the Disclosure of Unused Material in Volume Crown Court Cases’ (18th July 2017)
This joint report between HM Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary made a number of findings including the following at paragraph 1.3,
“The inspection found that police scheduling (the process of recording details of both sensitive and non-sensitive material) is routinely poor, while revelation by the police to the prosecutor of material that may undermine the prosecution case or assist the defence case is rare. Prosecutors fail to challenge poor quality schedules and in turn provide little or no input to the police. Neither party is managing sensitive material effectively and prosecutors are failing to manage ongoing disclosure. To compound matters, the auditing process surrounding disclosure decision-making falls far below any acceptable standard of performance. The failure to grip disclosure issues early often leads to chaotic scenes later outside the courtroom, where last minute and often unauthorised disclosure between counsel, unnecessary adjournments and – ultimately – discontinued cases, are common occurrences. This is likely to reflect badly on the criminal justice system in the eyes of victims and witnesses.”
Mouncher Investigation Report (2017)
The Mouncher Investigation Report, written by Richard Horwell QC, was published in July 2017, and is required reading for anyone involved in the disclosure exercise in a large or complex case.
The report considered the disclosure errors that led to the collapse of a case against eight former South Wales police officers who investigated the murder of Lynette White. They were charged with perverting the course of justice for their role in the arrest and prosecution of five men, who later became known as the “Cardiff Five”. Three of those five men were convicted in the trial that followed. They, in turn, became known as the “Cardiff Three” and were jailed for life in 1990. They were, however, freed in 1992 after their convictions for the killing were quashed. The actual murderer was identified years later through DNA evidence and eventually he pleaded guilty in 2003 to carrying out the murder, alone.
The 2011 trial (R v ‘Mouncher and others’) of the police officers who were charged with perverting the course of justice relating to the 1990 convictions, collapsed after the prosecution offered no evidence. Prosecution counsel stated at the time that, “The prosecution can no longer sustain a position maintaining that the court and the Defendants can have the required confidence in the disclosure process.” The Mouncher Investigation Report considered why prosecution counsel gave that indication and why the prosecution was abandoned as a result.
In the Report’s conclusions, the following causes of the disclosure failures in that case were set out at paragraph 24.7:
“…poor management by the CPS at the beginning; instruction of counsel too junior in call and of too little experience; the inability of the criminal trial system to flush out disclosure issues and to bring them before the judge; too narrow a disclosure test applied; the late appointment of a trial judge resulting in a lack of early active management of the case; inadequate skills, training and experience of disclosure police officers (in particular Lead Disclosure Officers); inability to retain disclosure officers; lack of instruction to police officers as to how to deal with sensitive documents; over-reliance on disclosure counsel including in relation to matters outside their instructions; insufficient formality in making and recording advice; inadequate supervision of officers and of counsel; and a lack of appreciation of the significance for disclosure purposes of material generated within the investigation as opposed to material physically received from outside.”
R v Liam Allan
Student Liam Allan had been charged with 12 counts of rape and sexual assault after allegations were made against him in 2015. The case was eventually dropped, in December 2017, three days into the trial, after it was discovered that there had been text messages from the complainant indicating that the sex had been consensual; including one message, which read, “It wasn’t against my will or anything.”
2018 assessment of pre-trial rape and serious sexual assault cases
In January 2018, following the collapse of the Liam Allen case, the Crown Prosecution Service announced that it was assessing all cases in England and Wales where someone had been charged with rape or a serious sexual assault. The review process included an assessment of 3,637 cases. Between 1st January and 13th February 2018, it was established that, in this period alone, 47 cases that had had issues in relation to disclosure had been stopped.
Attorney General’s ‘Review of the efficiency and effectiveness of disclosure in the criminal justice system’ (November 2018)
This was published in November 2018. Ultimately the review concluded that although the CPIA 1996 itself provided an appropriate disclosure regime, in practice the system was not working as effectively or efficiently as it should. The Review referred at page 12 to,
“…investigators and prosecutors interpreting the disclosure test too narrowly or placing too much focus on what the defence asserts to be its case, disregarding other matters unknown to the defence that would be part of the defence case if only they were made aware of them or other possible defences which the facts might support.”
National Disclosure Improvement Plan
The National Disclosure Improvement Plan (NDIP) was first published on 26 January 2018. The foreword described it as, “a joint plan, owned by the police service, the Crown Prosecution Service and the College of Policing”. The NDIP sought to address practical issues that would result in improved disclosure and a change in mindset. Since first publication, there have been a number of updates including the ‘National Disclosure Improvement Plan Progress update’ (October 2018), the ‘National Disclosure Improvement Plan Phase Two – Embedding Culture Change and Continuous Improvement’ (November 2018) and the ‘National Disclosure Improvement Plan Progress update’ (Spring 2019). The latter was co-signed by the DPP, Max Hill QC, and included reference to: the on-going work in rolling out the use of Disclosure Management Documents; working to develop a section in the Crown Court Digital Case System to accommodate the transfer of unused material and record disclosure decisions; updating police guidelines on data protection and the legal basis for data extraction from digital devices and ensuring that clear explanations are given to complainants and witnesses so they understand when, how and why their information will be accessed and processed.
So, we can trace the history of disclosure beginning with the prosecutor’s inherent duty to act with fairness as a minister of justice. As time went by, an increasing amount of guidance was given by the Court of Appeal and the Attorney General’s Guidelines. Disclosure was given a statutory footing with the coming into force of the CPIA, which was later supplemented by the CPIA Code of Practice. Numerous reviews and pronouncements on disclosure followed. In addition, procedural requirements in relation to disclosure are now contained in the Criminal Procedure Rules.
The history of disclosure to-date demonstrates that problems have arisen from the practical difficulties in applying, what is a relatively straightforward principle. The basic principle of disclosure is that in order for there to be a fair and legitimate verdict in any given case, the prosecution must provide the defence with material in its possession which might reasonably be considered capable of undermining the prosecution case or of assisting the defence case.
The purpose of disclosure is easy to state and is uncontroversial. However, the prosecution rarely now just have to consider whether, say, a single witness statement should be disclosed. Instead, the prosecution often must consider for disclosure the content of computer hard drives, mobile phones and sim cards, text, SMS and WhatsApp messages, email servers, the content of social media accounts, internet history searches, CCTV, police Body Worn Video footage and financial data. It is not uncommon now for the quantity of the unused material to dwarf the number of documents actually served as evidence.
Disclosure problems arise, therefore, in the practical application of the law of disclosure. It is the practical application of the current disclosure regime, that we now turn to consider.