The Law of Disclosure: A Perennial Problem in Criminal Justice 2020037336, 2020037337, 9780367420147, 9780367817411

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The Law of Disclosure

This edited collection explores the topic of disclosure of evidence and information in the criminal justice process. The book critically analyses the major issues driving the long-standing problem of dysfunctional disclosure practice, with contributions from academics, lawyers, former police officers and current police policymakers. The ultimate objective is to review the key problems at the investigative, trial and post-conviction stages of criminal proceedings and to suggest a way forward through potential routes of reform, both legal and cultural. The collection represents a significant and novel contribution to the policy debate regarding disclosure and advances thought on resolving this issue in a fair and sustainable manner. The book provides a valuable resource for academics, practitioners and policymakers working on this vital aspect of criminal procedure. Ed Johnston is a Senior Lecturer in Law, Bristol Law School, University of the West of England (UWE), UK. Tom Smith is a Senior Lecturer in Law, Bristol Law School, University of the West of England (UWE), UK.

Routledge Contemporary Issues in Criminal Justice and Procedure Series Editor Ed Johnston is a Senior Lecturer in Law, Bristol Law School, University of the West of England (UWE), UK.

The Law of Disclosure A Perennial Problem in Criminal Justice Edited by Ed Johnston and Tom Smith See more at www.routledge.com/Routledge-Research-in-Legal-History/bookseries/CONTEMPCJP

The Law of Disclosure

A Perennial Problem in Criminal Justice

Edited by Ed Johnston and Tom Smith

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 selection and editorial matter, Ed Johnston and Tom Smith; individual chapters, the contributors The right of Ed Johnston and Tom Smith to be identified as the authors of the editorial material, and of the authors for their individual chapters, has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Johnston, Ed, editor. | Smith, Tom (Thomas) (Lecturer in law), editor. Title: The law of disclosure : a perennial problem in criminal justice / edited by Ed Johnston and Tom Smith. Description: Milton Park, Abingdon, Oxon ; New York, NY : Routledge, 2021. | Series: Routledge contemporary issues in criminal justice and procedure | Includes bibliographical references and index. Identifiers: LCCN 2020037336 (print) | LCCN 2020037337 (ebook) | ISBN 9780367420147 (hardback) | ISBN 9780367817411 (ebook) Subjects: LCSH: Pre-trial procedure—Great Britain. | Disclosure of information—Law and legislation—Great Britain. | Preliminary examinations (Criminal procedure)—Great Britain. | Police questioning—Great Britain. | Criminal justice, Administration of—Great Britain. Classification: LCC KD8356 .L39 2021 (print) | LCC KD8356 (ebook) | DDC 345.41/05—dc23 LC record available at https://lccn.loc.gov/2020037336 LC ebook record available at https://lccn.loc.gov/2020037337 ISBN: 978-0-367-42014-7 (hbk) ISBN: 978-0-367-81741-1 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC

Contents

Acknowledgements List of contributors Table of statutes Table of cases Table of abbreviations Foreword

x xi xiv xv xvii xviii

P R O F. E D C A P E

1

Introduction

1

The rise of managerialism: the impact of swift and (un)sure justice on disclosure in criminal proceedings

3

D R E D J O H N S TON

2

‘Something to work with’: contemporary issues with pre-charge police disclosure and the role of the defence lawyer

19

STEPHEN DAVIES AND DR ED JOHNSTON WITH ANTHONY EDWARDS

3

Changing culture? Thinking differently about police and prosecution disclosure

32

D R TO M S M I T H

4

‘Hidden in plain sight’: the influence of culture on the police approach to disclosure

45

D AV E H O U C H I N AND DR NI CK CAVE NE Y

5

The search for new solutions to the disclosure problem: behavioural and empirical perspectives F I O N A M C L E A N AND L I BBY P OT T E N

58

vi

Contents

6

Uncovering disclosure errors: appeals, innocence projects and the criminal cases review commission

80

D R H A N N A H QUI RK

Final thoughts Bibliography Index

98 101 111

Detailed contents

Acknowledgements List of contributors Table of statutes Table of cases Table of abbreviations Foreword

x xi xiv xv xvii xviii

P R O F. E D C A P E

1

Introduction

1

The rise of managerialism: the impact of swift and (un)sure justice on disclosure in criminal proceedings

3

D R E D J O H N S TON

Efficiency or fairness: can you have both? The 1960s-2000s 3 Defence disclosure under the CrimPR: the enabler of managerialism 8 Ineffective sanctions 12 The blame game: the levelling of the scales 15 Conclusion 18 2

‘Something to work with’: contemporary issues with pre-charge police disclosure and the role of the defence lawyer S T E P H E N D AV IE S AND DR E D JOHNS TON WI T H AN TH O N Y ED WA RD S

Introduction 19 The evolution of pre-charge disclosure 22 The implementation of the Criminal Justice and Public Order Act (CJPOA) 1994 23 The impact of ‘diversionary’ practices on disclosure 25 Evidential advancements: the ‘explosion’ in digital evidence 28 Conclusion 31

19

viii Detailed contents 3

Changing culture? Thinking differently about police and prosecution disclosure

32

D R TO M S M IT H

Introduction 32 The disclosure ‘problem’: what lies beneath? 33 The adversarial role of the police and the conflict of disclosure 35 Resolving the ethical dilemma of disclosure 37 Instinct 38 Safety, risk and pressure 39 Conclusion: changing culture 42 4

‘Hidden in plain sight’: the influence of culture on the police approach to disclosure

45

D AV E H O U C HI N AND DR NI CK CAVE NE Y

Introduction 45 Police disclosure failings: but one manifestation of police culture? 46 Police culture, and a propensity to inertia 47 Cognitive homogeneity 49 Micro and macro cultures: a mandate from the people? 51 Behavioural or culture change? 52 Part of the solution or the problem? The challenge for police leadership 54 Conclusion 56 5

The search for new solutions to the disclosure problem: behavioural and empirical perspectives F I O N A M C L EAN AND L I BBY P OT T E N

Introduction 58 The disclosure problem: a ‘symptom’ of wider issues? 58 Current responses to disclosure: the National Disclosure Improvement Plan 60 Why do we look to the same solutions? 61 Why an alternative approach is required 62 How could we look at the problem differently? 63 A possible new approach: understanding the problem in greater detail 65 Empirical study: methodology 67 Findings 68 Motivation – the role of response officers 68

58

Detailed contents ix Capability – knowledge and understanding of investigative practice 70 Opportunity to investigate 73 Conclusions 75 Motivation 75 Capability 76 Opportunity 76 Other issues 77 Potential next steps 78 6

Uncovering disclosure errors: appeals, innocence projects and the Criminal Cases Review Commission

80

D R H A N N A H Q UI RK

Developments in disclosure 81 Disclosure and the risks of wrongful convictions 84 Post-conviction disclosure problems 88 The Criminal Cases Review Commission and disclosure 91 Why innocence projects are still not the answer 93 Conclusions 96 Final thoughts Bibliography Index

98 101 111

Acknowledgements

This short volume considers the myriad of issues concerning disclosure at differing junctures of the criminal justice process of England and Wales. It is designed to posit some answers concerning these problems and hopefully acts as a call to arms for all actors in the process to recognise that everybody has an obligation to ensure the provisions work in practice and to root out the cause of this perennial problem. The volume was born out of a one-day conference held in July 2019 at the Bristol Law School, University of the West of England. The editors would like to thank both The Socio-Legal Scholars Association and the Bristol Law School for funding the event. The conference attracted interest from both academics and practitioners who engaged with the papers presented and the afternoon plenary session which yielded potential answers to the problem posed by disclosure, and we have tried to incorporate many of them in this volume. We would like to thank our editor, Alison Kirk, for her diligent help and understanding during the process of writing this book. Ed would also thank his family, Wolfy, Erin and Jacob for their understanding and patience during the writing and editing stages. Tom would like to thank his family, Kirsty and Alex. Finally, we would like to thank the authors who have contributed engaging and thought-provoking chapters concerning the issues plaguing the disclosure regime. Ed Johnston and Tom Smith June 2020 Bristol

Contributors

Ed Cape is Emeritus Professor of Criminal Law and Practice at the University of the West of England, Bristol, UK. A former criminal defence solicitor, he has a special interest in criminal justice, criminal procedure, police powers, defence lawyers and access to justice. Ed has been engaged in many research projects in the UK and internationally, and his research-based publications include Suspects in Europe: Procedural Rights at the Investigative Stage of the Criminal Process in the European Union (Intersentia, 2007), Effective Criminal Defence in Europe (Intersentia, 2010), Effective Criminal Defence in Eastern Europe (Soros Foundation – Moldova, 2012), Inside Police Custody: An Empirical Account of Suspects’ Rights in Four Jurisdictions (Intersentia, 2014), Effective Criminal Defence in Latin America (Dejusticia, 2015), and Inside Police Custody 2: Comparative Report (ICCL, 2018). Ed was commissioned to write a handbook for the United Nations Office on Drugs and Crime to provide practical guidance on implementation of the ‘UN Principles and Guidelines on Access to Legal aid in Criminal Justice Systems,’ Early Access to Legal Aid in Criminal Justice Processes: A Handbook for Policymakers and Practitioners, which was published in March 2014 (UN, 2014). Practitioner texts include Defending Suspects at Police Stations (8th edition, Legal Action Group, 2020 forthcoming) and, as a contributing author, Blackstone’s Criminal Practice 2019 (Oxford University Press, 2018). Ed’s most recent publication is ‘Defense Rights, Duties, Norms, and Practices in Common Law and Civil Law Jurisdictions,’ in the Oxford Handbook of Criminal Process (Oxford University Press, 2019). Nick Caveney is a Visiting Fellow in Criminology, University of Northampton, and a serving police superintendent. He has worked widely across the police service, including for HMICFRS and the College of Policing, in which role he led the delivery of senior leadership training internationally. Nick earned his professional doctorate in 2015 at the University of Portsmouth, specialising in employee engagement in the police. Nick has an academic interest in police culture, leadership and organisational psychology. Nick is a Vice Chair of the Open University Centre for Policing Research and Learning and Visiting Fellow in the Department of Criminology University of Northampton. Nick has published work on police culture and has pending publications relating to police ethics.

xii

Contributors

Stephen Davies is a Criminal Defence Solicitor at Tuckers Solicitors LLP. Stephen specialises in criminal law and procedure, criminal defence and criminal legal aid in England and Wales, representing clients in the police station, Magistrates’ Court, Crown Court and Appeal Courts. Stephen graduated with an LL.M in Legal Practice, an LL.M in Criminal Law and Procedure and an LL.B in Law. Stephen tweets about criminal law, legal aid and access to justice @sdavieslaw. Anthony Edwards is a criminal defence solicitor. He is acknowledged as one of the leading authorities on Police Station law and he has published widely in the areas of criminal procedure. Dave Houchin is a Superintendent and Senior Leadership Trainer at the College of Policing. He joined the police service in 1991 and is a serving superintendent in Humberside Police. His senior operational roles have predominantly been crime management and community policing based, incorporating extensive partnership working. He was force lead for evidence-based practice and member of the N8 Policing Research Partnership, Early Intervention Academy for Police Leaders and Open University Centre for Policing Research and Learning. In 2018, Dave was seconded to the College of Policing as a Senior Leadership Trainer. He has delivered training internationally and to the Direct Entry Superintendent scheme but his primary function has been to lead the redesign, development and delivery of the national Senior Leadership Development Programme. His particular interest is unconscious biases and behavioural integrity, their interplay with an especially potent organisational culture, and developing self-awareness in senior leaders. Ed Johnston PhD is a Senior Lecturer in Law and the Programme Lead for Criminology and Law, Bristol Law School, University of the West of England (UWE), UK. Ed’s research interests include disclosure, the role of the defence lawyer, the demise of adversarialism and fair trial rights. Ed has published a variety of peer-reviewed articles on the topic of disclosure and adversarialism, acted as a consultant for the Legal Policy Research Center in Kazakhstan, and he has also delivered training for the Judicial College. Hannah Quirk PhD is Reader in Criminal Law at King’s College London. Her research interests develop her work at the Criminal Cases Review Commission, investigating claims of wrongful conviction and sentence. She spent a research sabbatical at the Innocence Project New Orleans (2005), before joining the University of Manchester. She was a visiting scholar at the University of Melbourne, Queen’s University Belfast (both 2009) and Fordham University Law School (2012). Dr Quirk is on the editorial boards of The Criminal Law Review and Legal Studies. She appears regularly in the media and hosted a series of public talks with the attorneys from the Making a Murderer and The Staircase documentaries. She is a trustee of Transform Justice and the Sentencing Academy. Her monograph The Rise and Fall of the Right of Silence was published by Routledge (2016). She is Academic Fellow of the Honourable Society of the Inner Temple (2019–2021).

Contributors

xiii

Fiona McLean currently works for the College of Policing as an Evidence and Evaluation Adviser, supporting the Crime and Criminal Justice Faculty to develop evidence-based standards, guidance and training. She has worked as a social researcher in the policing and criminal justice fields for over 25 years, having held roles in the City of London Police, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services, the Home Office and the College of Policing. Libby Potten is Policing Standards Manager (Criminal Justice) at the College of Policing. She has worked in policing for over 15 years. She graduated in Law from Essex University in 2002, followed by briefly working in the private sector before joining Suffolk Constabulary. Since then she has completed an MSc in Management with De Montfort University, Leicester, and the College of Policing’s Senior Leadership Development Programme. Libby has worked on national policing policy in various guises since 2012, including on secondment co-located with the CPS and within the Home Office. She is now responsible for Criminal Justice on behalf of the College of Policing, having had a direct role in the policing response to disclosure under the National Disclosure Improvement Plan. Tom Smith PhD is a Senior Lecturer in Law and member of the Global Security, Crime and Justice research group, within the Faculty of Business and Law, UWE Bristol. His research interests include remand (pretrial detention and bail); disclosure of evidence in criminal proceedings; criminal defence lawyers; criminal legal aid and court reporting and open justice. Tom has published in various peer-reviewed law journals; worked on cross-jurisdictional projects related to criminal defence and pretrial detention, acted as an expert consultant for a law reform project in China and delivered training for the Judicial College and College of Policing.

Table of statutes

LEGISLATION Criminal Appeal Act 1968 ...................................................................................................................89 Criminal Appeal Act 1995 .............................................................................................................89, 91 Criminal Justice Act 2003 .........................................................................................................6, 34, 85 Criminal Justice and Public Order Act 1994 .................................................................................23, 83 Criminal Procedure and Investigations Act 1996 ...........................................................3, 7, 80, 84, 85 Policing and Crime Act 2017 ..............................................................................................................27 Police and Criminal Evidence Act 1984 .........................................................................................6, 83

INTERNATIONAL LEGISLATION AND TREATIES European Convention on Human Rights 1952 ...............................................................................8, 95 EU Directive 2012/13/EU on the Right to Information in Criminal Proceedings ........................19, 20

STATUTORY INSTRUMENTS Criminal Procedure Rules 2015 ..............................................................................................13, 14, 39

Table of cases

Cadder (Peter) v HM Advocate [2010] UKSC 43 ...............................................................................20 Condron v United Kingdom Application No. 35718/97 (2001) 31 E.H.R.R. 1 ..................................24 Dallison v Caffery [1965] 1 QB 348 .....................................................................................................4 DPP v Ara [2001] 4 All ER 559 ..........................................................................................................21 Ex Parte Lloyd [1822] Mont. 70 ..........................................................................................................35 Firth v Epping Magistrates’ Court [2011] EWHC 388 (Admin) ........................................................11 MclKenny and Others [1992] Crim LR 117 .........................................................................................5 Paris, Abduallahi and Miller [1993] 97 Cr App Rep 99 .......................................................................5 R v Allan (2017) Unreported ........................................................................................................34, 87 R v Ara [2001] EWHC Admin 493 .....................................................................................................41 R v Argent (Brian) (1997) 2 Cr. App. R. 27.........................................................................................23 R (on the application of Payne) v South Lakeland Magistrates’ Court [2011] EWHC 1802 (Admin) ..........................................................................................................................................10 R (on the Application of Hassani) v West London Magistrates’ Court [2017] EWHC 1270 (Admin) ..........................................................................................................................................16 R v Beckles (Keith Anderson) [2004] EWCA Crim 2766 ............................................................24, 25 R. v Boardman (David) [2015] EWCA Crim 175 ..............................................................................30 R v Brown (Winston) [1995] 1 Cr App R 191 ....................................................................................81 R v Bryant and Dickson [1946] 31 Cr App R 146 ..............................................................................81 R v DPP ex parte Lee [1999] 2 All ER 737 ........................................................................................41 R v E [2018] EWCA Crim 2426 ...................................................................................................29, 37 R v Farooqi and Others [2013] EWCA Crim 1649 .............................................................................38 R v Farrell [2004] EWCA Crim 597 ...................................................................................................21 R v Gleeson [2003] EWCA Crim 3357 ..............................................................................................10 R v Gorman (Damien Paul) [2019] EWCA Crim 2271 ......................................................................89 R v Green (Ricky) [2019] EWCA Crim 411 .......................................................................................25 R v Gray and Others [2014] EWCA Crim 2372 .................................................................................89 R v H and C [2004] 2 AC 134 .............................................................................................................42 R v Hassani [2015] EWCA Crim 175 .................................................................................................15 R v Hoare and Another [2004] EWCA Crim 784 ...............................................................................24 R v Howell (Jeffrey John) [2003] EWCA Crim 01 ............................................................................24 R v Imran & Anor [1997] EWCA Crim 1401 .....................................................................................21 R v Jerry Fortean [2009] EWCA Crim 437 ........................................................................................ 89 R v Jisl [2004] EWCA Crim 696 ......................................................................................................7, 8 R v Keane [1994] 1 WLR 746 ............................................................................................................82 R v Khalime Shah [2002] EWCA Crim 1623 .....................................................................................29 R v Kiszko The Times (19 February 1992) .........................................................................................81 R v Maguire (1992) 94 Cr App R 133 ................................................................................................81

xvi

Table of cases

R v Mason (Carl) [1988] 86 Cr App R 349 ........................................................................................21 R v Musone [2007] EWCA Crim 1237 ...............................................................................................13 R v Newell [2012] EWCA Crim 650 ............................................................................................11, 18 R v Nottle (Paul James) [2004] EWCA Crim 599 ........................................................................23, 24 R v Roble [1997] CLR 346 .................................................................................................................23 R. v R and others (Practice Note) 2015 EWCA Crim 1941 ..........................................................10, 65 R v Richards and others [2015] EWCA Crim 1941 ............................................................................86 R v Richards and others [2016] 1 Cr. App. R. 20 ...............................................................................86 R v Simon John Hall [2011] EWCA Crim 4 .......................................................................................89 R v Solomon [2007] EWCA Crim 2633 .............................................................................................89 R v SVS Solicitors [2012] EWCA Crim 319 ......................................................................................12 R v Taylor (1994) 98 Cr App R 361 ....................................................................................................81 R v Ward [1993] 1 WLR 619, 96 Cr App Rep 1 ...................................................................................5 Salduz v Turkey Application No.36391/02 (2009) 49 E.H.R.R. 19 ...................................................22 Ward v Police Service of Northern Ireland [2007] UKHL 50 ............................................................22 Writtle v DPP [2009] EWCA 236 (Admin) ........................................................................................13

Table of abbreviations

CACD CCTV CJS CJPOA 1994 CoP CPIA 1996 CPS CCRC CSE CrimPR DPP EctHR E&W GBH HMCPSI HMIC NPCC NDIP NFA NPIA OIC PACE 1984 PCMH RCCJ RUI WCO

Court of Appeal Criminal Division Closed Circuit Television Criminal Justice System Criminal Justice and Public Order Act 1994 College of Policing Criminal Justice and Procedure Act 1996 Crown Prosecution Service Criminal Cases Review Commission Child Sexual Exploitation Criminal Procedure Rules 2015 Director of Public Prosecutions European Court of Human Rights England and Wales Grievous Bodily Harm Her Majesty’s Crown Prosecution Service Inspectorate Her Majesty’s Inspectorate of Constabulary National Police Chiefs’ Council National Disclosure Improvement Plan No Further Action National Policing Improvement Agency Officer in Case Police and Criminal Evidence Act 1984 Plea and Case Management Hearing Royal Commission on Criminal Justice Released Under Investigation Wasted Costs Order

Foreword

Disclosure in criminal proceedings has, as the title of the book suggests, been a perennial problem. The problem, in essence, is that whilst the police and prosecution have, in practice, almost exclusive powers and resources to conduct criminal investigations, the defence is reliant on the prosecution for disclosure of material obtained in those investigations that may be relevant in the interests of fair trial. The prosecution will make decisions about what evidence it is in their interests to use at trial. Failure to disclose such evidence to the defence in advance of a trial will become obvious, at the latest during the trial, and the judge can make appropriate decisions about whether to permit the prosecution to use it. The problem of disclosure is, however, acute in respect of material that the prosecution do not intend to rely upon at trial. Such material, especially in large and complex investigations, may be irrelevant to the facts in dispute. On the other hand, it may be highly relevant to the question of whether the prosecution evidence given at trial can safely be relied upon, or to the question of whether there is other potential evidence that could assist the defence and, ultimately, affect the fairness of the trial. If the prosecution choose not to rely upon it, and the defence are unaware of it, then the existence of the material and its potential relevance may never be known. As a result, the prospect of fair trial is undermined. Historically it was, perhaps, assumed that the prosecution would be assiduous in disclosing relevant material to the defence, although this was not an assumption that many lawyers acting for the defence shared. However, the comforting notion that the police would pass all potentially relevant material to the prosecution, and that the prosecution would duly disclose it to the defence, was dramatically blown out of the water by a series of cases in the late 1980s and early 1990s. These cases demonstrated that the police and prosecution were quite capable of withholding relevant material from the defence, sometimes inadvertently, but often as a result of a deliberate decision not to jeopardise the prospects of conviction. Even where the defence, following conviction, were able to show that relevant material had not been disclosed, the Court of Appeal could not necessarily be relied upon to provide an adequate remedy. By 1993, and the decision in the case of Judith Ward, some courts had developed a wide-ranging obligation on the prosecution to disclose to the defence almost all material obtained during the course of an investigation. However, differently

Foreword

xix

constituted courts rapidly resiled from this position, and the Royal Commission on Criminal Justice, set up in the wake of the (eventually) successful appeals of the Birmingham Six (whose convictions had, in part, been secured as a result of the prosecution withholding important evidence), set about discrediting the idea of automatic disclosure of investigative material. Instead, the Commission recommended a disclosure process which, crucially, left the police and prosecution to decide what material in their possession might undermine the prosecution or assist the defence. In addition, in a much criticised departure from previous practice, it recommended wide-ranging disclosure obligation on the defence. The recommendations of the Royal Commission were, broadly, accepted by the then-government and given legal effect by the Criminal Procedure and Investigations Act 1996. With some modification, it is this regulatory structure that continues to govern prosecution and defence disclosure today. And it is this structure that has again been found wanting in a number of recent cases examined in this volume. The book, which is based on a conference on disclosure held at the University of the West of England, Bristol, in 2019, and funded by the Social-Legal Studies Association, could not have been better timed. The Attorney-General’s Review of Disclosure, issued for consultation in February 2020, whilst recognising that under the current disclosure regime, disclosure obligations on the police and prosecution are insufficiently prioritised, are not completed on time, and are not carried out to the necessary standard, suggests only limited changes designed to reform the culture informing prosecution disclosure practice. The authors of the chapters in this book, academics and practitioners, reject this approach. They provide careful analyses of why the current disclosure regime does not work and, indeed, cannot work in such a way that ensures adequate disclosure, and thus fair trial. On the basis of such analyses, the authors carefully consider what needs to be done to deal with a problem that simply will not go away. Tinkering with the disclosure regime is not enough. Fundamental change is necessary if the trial process is to command the confidence that should be vested in it. Prof. Ed Cape Emeritus Professor of Criminal Law and Procedure University of the West of England, Bristol June 2020

Introduction

This collection aims to explore the ‘hot topic’ of disclosure in the criminal justice system. Disclosure – that is, the provision of favourable evidence to persons accused of crime – has emerged as one of the most challenging problems in 21st century criminal justice. In the wake of the Liam Allan case in December 2017, numerous reviews have been conducted to explore how a repeat of the ‘near’ miscarriage of justice in that case can be avoided in future. A clear way forward has yet to be settled on, with the Attorney General consulting on such changes at the time of writing. This collection aims to critically analyse the major issues driving this long-standing problem, and in doing so embrace a range of perspectives and alternative ways of thinking about the problem. Ultimately, the objective of the collection is not only to review the key problems at the investigative, trial and postconviction stages of criminal proceedings but to suggest a way forward through potential routes of reform. Disclosure is one of the most pressing and impactful issues currently facing E&W criminal justice. Between 1967 and 1996 the defendant had only to disclose alibi and expert evidence, whilst the prosecution would disclose elements of their case to ensure equality of arms. The advent of the CPIA 1996 saw this system overhauled, heralding a ‘sea change’ in the approach to disclosure. After a series of recent criminal cases collapsed due to significant police failures regarding disclosure (such as the aforementioned Allan case), long-running questions about the fitness of the CPIA 1996 regime re-emerged as a matter of urgent debate. Despite a number of reviews of the disclosure regime over the last two decades, a sure ‘way forward’ which could ensure fair and effective disclosure practice has yet to materialise. Instead, responses to this wide-scale problem have been akin to the ‘treatment of the symptoms’ rather than the ‘prevention of the disease.’Alongside concerns about day-to-day disclosure practice, critics argue that the legislation, as it is currently conceived, is fundamentally flawed and risks causing miscarriages of justice. With such arguments in mind, this collection – based on a one-day conference funded by the Socio-Legal Scholars Association – draws together experts from both legal practice and academia to examine the root causes underlying failures in the disclosure regime. Whilst the issue of disclosure has received increased attention in recent years, it still remains an underexplored area in academic circles. No equivalent to this

2

Introduction

collection currently exists. The book ultimately seeks to take a fundamentally different approach to tackling the disclosure crisis, in that it will consider deeper causes behind what is a perennial problem. This can be contrasted with the approach adopted in practice over the last two decades – that is, to respond (often in a state of crisis) through changes to training and education of practitioners. The book broadly explores the theme that the drivers of this problem lie farther below the surface, amounting to more than mere lack of understanding on the part of practitioners. Fundamentally, the problem is linked to the design of the disclosure framework and the cultures of criminal justice in E&W. In this sense, the book aims to innovate by comprehensively examining the case for a radical overhaul – rather than the application of another sticking plaster. As part of this, sub-themes which will be explored include: • • • • •

The effects of efficiency and managerial pressures on disclosure practice The influence of adversarial culture on the disclosure crisis The complexity and challenges for defence lawyers seeking disclosure The relationship between miscarriages of justice and disclosure The fundamental difficulties of designing a legislative framework for regulating disclosure

It is therefore hoped that this collection will significantly contribute to the policy debate regarding disclosure and influence thought on resolving this issue in a fair and sustainable manner. Dr Ed Johnston and Dr Tom Smith

1

The rise of managerialism The impact of swift and (un)sure justice on disclosure in criminal proceedings Dr Ed Johnston*

On coming to power in 1997, New Labour continued in the same vein of the previous government by attempting to make criminal justice swifter and more efficient. The new Prime Minister, Tony Blair, wanted to increase efficiency by implementing ‘fast-track, efficient procedures from arrest to sentencing; improving services to witnesses and victims; and ensuring the component parts of the system were performing to their maximum potential.’1 These goals were consolidated in the Criminal Justice Strategic Plan 1999–2001, which had the goal of dispensing justice ‘fairly and efficiently,’2 and were underpinned by Lord Justice Auld’s comprehensive Review of Criminal Process in England and Wales in 2001. The Review was designed to inquire into the ‘practices and procedures of the rules of evidence . . . with a view to ensuring that they deliver justice fairly, by streamlining their processes, increasing their efficiency and strengthening the effectiveness of their relationships with others across the whole criminal justice system.’3 This chapter will analyse how the mechanism of defence disclosure has been cultivated to feed this agenda of increased efficiency of the CJS, often with little regard to pivotal due process safeguards that have been ridden roughshod in pursuit of these goals. The chapter will examine the sociopolitical climate that allowed both the creation of a defence disclosure regime via the Criminal Procedure and Investigations Act 1996 (CPIA 1996) and its subsequent extension into the magistrates’ court via the Criminal Procedure Rules (CrimPR). The chapter will also examine the inequality between the defence and prosecution disclosure obligations, and their subsequent treatment in court in terms of consequences of non-compliance.

Efficiency or fairness: can you have both? The 1960s-2000s Whilst defence disclosure is a relatively new creation, the notion of prosecution disclosure has been an integral part of criminal procedure since the mid-1940s. * Dr Ed Johnston is a Senior Lecturer in Law at UWE, Bristol, [email protected]. 1 See E. McLaughlin, J. Muncie and G. Hughes, ‘The permanent revolution: New labour, new public management and the modernization of criminal justice’ (2001) Criminal Justice, 1(3) 301–318 at 307. 2 Home Office, Criminal Justice System: Strategic Plan 1999–2002 (1999) at para 1.3. 3 R. Auld, A Review of the Criminal Courts of England and Wales (2001) Chapter 1, paragraph 1.

4

Dr Ed Johnston

Bryant and Dickson4 is generally regarded at the dawn of the modern disclosure regime, whereby the prosecution ought to be compelled to disclose any material that may lead to the acquittal of the defendant. The importance of this provision was later re-enforced by Lord Justice Denning in Dallison v Caffery5 where he claimed that should a prosecutor ‘know . . . of a credible witness who can speak [of] material facts which tend to show the prisoner to be innocent, he must either call the witness himself or make his statement available . . . it would be highly reprehensible to conceal [the evidence].’6 This remained the case until the mid1960s; disclosure was exclusively placed on the prosecution to reveal facts of their case to the defence. However, the Criminal Justice Act 1967 represented a turning point, as the first foray into the realm of defence disclosure. Section 11 required the defendant to disclose details of any alibi witnesses for trials on indictment. This remained the only defence obligation until the mid-1980s. The Roskill Committee (1987) was launched to examine the process of fraud trials in E&W. The committee’s final report recommended an extension to the regime of defence disclosure, stating that the public believed the legal process to be ‘an open invitation to blatant delay and abuse.’7 In order to tackle this abuse, the committee argued that forcing the defence to outline its case in advance of trial would make the process fairer, shorter and more efficient. Further, it would also allow the jury a greater understanding of the issues at hand if they were aware which elements of the prosecution’s case the defence wished to challenge. Requiring an outline of its case in advance would greatly dilute the scope for the defendant to fabricate a defence. This suggestion garnered support; Michael Levi believed having cases outlined at the start would assist in ‘comprehension and inhibit the development of irrelevant lines or arguments in the hope of causing maximum obfuscation and uncertainty over guilt.8 Roderick Munday supported the notion that these changes ought to reflect the wider criminal process rather than being limited to fraud trials alone.9 Whilst the then-government did not fully implement these provisions, the Crown Court (Advance Notice of Expert Evidence) Rules10 were established as a result of the Committee’s report. This meant that, as well as an alibi witness, any expert evidence on which the defence sought to rely be disclosed in advance of trial. Disclosure in the mid-20th century represented a regime of pragmatic fairness. The subsequent developments during the 1990s would have seismic consequences for this concept. The decade began with a succession of successful appeals centred

4 5 6 7

[1946] 31 Cr App R 146. [1965] 1 QB 348. Ibid. at 369. The Fraud Trials Committee, Chairman: The Right Honourable Lord Roskill, P.C. (HMSO, 1986) p. 1. Paragraph 1. 8 M. Levi, ‘The future of fraud prosecutions and trials: Reviewing Roskill’ (1986) Company Law, 7(4), 139–146 at 140. 9 R. Munday, ‘The Roskill Committee on fraud trials’ (1986) Cambridge LJ, 175–179 at 177. 10 SI 1987/716.

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on false confessions,11 and the then-government responded by establishing the Royal Commission on Criminal Justice (RCCJ). The Commission sought to examine potential reforms to the CJS and to tackle the ‘excesses of the adversarial system.’12 One identified excess was the right to silence; the then-Home Secretary, Michael Howard, famously proclaimed that ‘the right to silence will be abolished [and] the innocent have nothing to fear.’13 This clear conflation between silence and guilt was endemic in government criminal justice policy of the time, and was reflected in legal circles.14 It was thought by amending the silence provisions, the threat of an ambush defence would be greatly reduced.15 The Royal Commission and the existing empirical evidence on this matter suggested otherwise.16 Furthermore, Greer suggested that those who stayed silent are more, rather than less likely, to be charged and subsequently enter a plea of guilty.17 A further ‘excess’ of the adversarial system was the notion of partial defence disclosure. The Commission suggested that amendment could ‘bring forward the moment at which the issues [in the case are] . . . clearly and concisely laid out’;18 as a result, the adjudication should become more efficient. For example, more weak cases would be dropped at an earlier stage, and more cases would ‘crack,’ saving resources; trial dates would be fixed earlier, with better estimates of duration of trials, allowing more effective deployment of resources. The suggestion of an enhanced defence disclosure regime was met with vehement opposition from Michael Zander. Dissenting from the Commission’s general recommendations in this regard, he outlined four grounds as to why the proposals should not be followed. First, the proposal was inconsistent with the burden of proof, as the defendant should not be obliged to assist the prosecution; second, the changes suggested were designed to combat ambush defences, a problem not underpinned by strong evidence; third, advance disclosure was unlikely to streamline the process and render it more efficient; and fourth, sanctions for failing to comply with disclosure were difficult to enforce.19 The government largely ignored both the empirical evidence and this dissenting commentary and pressed 11 The Birmingham Six (MclKenny and Others [1992] Crim LR 117; Stefan Kiszko (Kiszko 1992); The Cardiff Three (Paris, Abdullahi and Miller [1993] 97 Cr App Rep 99; and Judith Ward (R v Ward [1993] 1 WLR 619, 96 Cr App Rep 1). 12 S. Field and P.A. Thomas, ‘Justice and efficiency? The Royal Commission on Criminal Justice’ (1994) JL Soc’y, 21 1–19 at 13–14. 13 A. Travers, ‘Right to silence abolished in crackdown on crime’ Guardian, 7 October 1993. 14 Lord Lane had to recuse himself in the Winchester Three Appeal, R v McCann, Cullen and Shanahan (1991) 92 Cr. App R 239. See also Lord Denning’s comments in ‘Free Justice From Silence’ The Sunday Times (London, 20 September 1987). 15 R. Leng, ‘Losing sight of the defendant: The government’s proposals on pre-trial disclosure’ (1995) Crim LR, 704. 16 See R. Leng, The Right to Silence in Police Interrogation: A Study of Some of the Issues Underlying the Debate, RCCJ Research Study no 10 (1993). 17 S. Greer, ‘The right to silence, defence disclosure and confession evidence,’ in S. Field and P.A. Thomas (Eds.), Justice and Efficiency? The Royal Commission on Criminal Justice (Oxford: Blackwell’s, 1994) at 104. 18 The Royal Commission on Criminal Justice, Report, Cm 2263 (HMSO, 1993) p. 84 at para 3. 19 Ibid. Note of Dissent, M. Zander at p. 222.

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ahead with a new regime of defence disclosure under the CPIA 1996. Critics have suggested that both the CJPOA 1994 and CPIA 1996 were designed to ‘mollify a police force in the wake of the Police and Criminal Evidence Act 1984 [PACE 1984]. . . and to restore the governments tattered law and order image.’20 Quirk suggests that these crime control policies were the ‘trade-off’ for the enhanced due process protections afforded by PACE.21 The CPIA 1996 fundamentally altered pretrial procedure in E&W. Previous to this, defence disclosure was extremely limited and non-contentious. If the defence wanted to offer alibi or expert evidence, it only seemed equitable to ensure the prosecution was aware of such witnesses and could properly test the veracity of their evidence. However, what was required under s.5 CPIA 1996 was a greatly enhanced approach to defence disclosure. For trials on indictment, the defendant now needs to provide a written statement outlining the following: s.5(6) (a) setting out in general terms the nature of the accused’s defence; (b) indicating the matters on which he takes issue with the prosecution; (c) setting out, in the case of each such matter, the reason why he takes issue with the prosecution. What followed was almost universal criticism of the regime, from suggestions that it ignored the operational cultures of the actors involved in the process,22 to the general unworkability of the regime for both the prosecution and the defence in terms of time frames.23 Owing to this, s.33 Criminal Justice Act 2003 amended the provisions and inserted a new s.6A into the CPIA 1996. This change meant that the defence statement now contains elements which: (a) set out the nature of the accused defence, including any particular defences on which he intends to rely; (b) indicating matters of fact on which he takes issue with the prosecution; (c) setting out, in the case of each such matter, as to why he takes issue with the prosecution and; (d) an indication of any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take and any authority he intends to rely on for that purpose.

20 S. Greer, ‘The right to silence, defence disclosure and confession evidence,’ in S. Field and P.A. Thomas (Eds.), Justice and Efficiency? The Royal Commission on Criminal Justice (Oxford: Blackwell’s, 1994) at 104. 21 H. Quirk, ‘Twenty years on, the right of silence and legal advice: The spiralling costs of an unfair exchange’ (2013) NILQ, 54(4), 465–483 at 466. 22 See H. Quirk, ‘Disclosure: Significance of culture in criminal procedural reform’(2006) 10 E&P, 42–59. 23 J. Plotnikoff and R. Woolfson, ‘A fair balance? Evaluation and operation of disclosure law’ RDS Occasional Paper no 76, 2001.

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As such, s.6A greatly increased the disclosure obligations of the defendant in very broad terms and mirrored the tone that was being reflected by the courts in the wake of the Auld Review. In the Review, Lord Justice Auld, perhaps inadvertently, created a mantra that would define the criminal process for the next 20 years (and currently shows no signs of abating). He stated that the ‘criminal trial is not a game under which a guilty defendant should be provided with a sporting chance.’24 He went on to define the trial as: a search for the truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate what he disputes about the prosecution case offends neither of these principles.’25 The courts were quick to adopt this mantra and implement it in an apparent desire for a more efficient process. For example, in Jisl26 Lord Justice Judge stated that the starting point of any criminal case is ‘simple’: Justice must be done. The defendant is entitled to a fair trial and what is sometimes overlooked, the prosecution are equally entitled to a reasonable opportunity to present the evidence against the defendant. It is not however a concomitant of the entitlement to a fair trial that either or both sides are further entitled to take as long as they like, or for that matter, as long as counsel and solicitors, or the defendants think appropriate. Resources are limited . . . time itself is a resource.27 Whereas the defence disclosure regime was merely voluntary in summary-only trials,28 the advent of the Case Management provisions of the CrimPR effectively rendered this null, and extensive disclosure is now, in effect, mandatory in the magistrates’ court. The advent of the CrimPR in 2004, as recommended by the Auld Review,29 effected a ‘sea change in the way that cases should be conducted . . . the Rules make it clear that the overriding objective is that criminal cases must be dealt with justly.’30 Importantly, ‘Rule 3.2 imposes upon the court a duty to further the overriding objective by actively managing the case.’31 As the court highlighted in Chor-

Supra n 4 at paragraph 154. Ibid. [2004] EWCA Crim 696. [2004] EWCA Crim 696 at 114. S.6 Criminal Procedure and Investigations Act 1996. Supra n 4 at para 184. R (On the Application of the DPP) v Chorley Justices [2006] EWHC 1795 Admin per Thomas LJ at para 24. 31 Ibid. per Thomas LJ at para 25. 24 25 26 27 28 29 30

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ley Justices, ‘[t]he pertinent part . . . is the early identification of the real issues.’32 This is eerily similar to the contents of the defence case statement outlined by the CPIA 1996. It is here that a great threat to traditional adversarialism exists; with the advent of the CrimPR, the defendant is now compelled to assist the prosecution fairly extensively in their pursuit of a conviction, potentially impinging upon key due process safeguards such as the privilege against self-incrimination, the presumption of innocence and the burden of proof.

Defence disclosure under the CrimPR: the enabler of managerialism The overriding objective of the CrimPR has effectively allowed the courts to ‘manage’ the trial with the goal of increased efficiency and economy, combating the negative impact of the ‘excesses of the adversarial system.’33 This agenda has been readily accepted by the courts. Lord Justice Judge highlighted the problems of failing to curb such excesses in Jisl: Every day unnecessarily used, while the trial meanders sluggishly to its eventual conclusion, represents another day’s stressful waiting for the remaining witnesses and the jurors in that particular trial, and no less important, continuing and increasing tension and worry for another defendant or defendants, some of whom are remanded in custody, and the witnesses in trials who are waiting their turn to be listed. It follows that the sensible use of time requires judicial management and control.34 With the language and tenor of the courts focusing on the elements of cost saving and swifter trials, it has been evident that the overriding objective of the CrimPR has been enthusiastically embraced by the judiciary. In particular, the notion of ‘dealing with cases justly’ in the post-CrimPR era is defined as:35 (a) acquitting the innocent and convicting the guilty; (b) dealing with the prosecution and defence fairly; (c) recognizing the rights of defendant, particularly those under Article 6 of the European Convention on Human Rights; and (d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case. This suggests that there is a shared desire to achieve the overriding objective and instil a culture of cooperation between the prosecution and defence. However, it 32 Director of Public Prosecutions v Chorley Justices [2006] EWHC 1795 (Admin). 33 S. Field and P.A. Thomas, ‘Justice and efficiency? The Royal Commission on Criminal Justice’ (1994) JL Soc’y 21 1–19 at 13–14. 34 [2004] EWCA Crim 696. 35 By CrimPR Rule 1.1(1).

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does little to reflect the fact that each side effectively remains an adversary with very different goals and roles within the CJS. In this sense, the CrimPR ‘drives a stake through the heart of traditional adversarial understandings.’36 Arguably, assisting the prosecution (and the court) to satisfy something other than the best interests of the client is adverse to the traditional role of the defence lawyer, which Lord Reid described in Rondel v Worsley37 as ‘one who fearlessly raises every issue, advances every argument and asks every question, however distasteful, which he thinks will help his client’s case.’38 As such, the defence lawyer’s fundamental loyalty, within an adversarial context, is to his client. This basic level of loyalty is well illustrated by O’Dair when he says that the duty of the defence lawyer is to present the facts of the case ‘as persuasively as he can . . . as seen from the standpoint of his client’s interests.’39 By presenting the facts as persuasively as he can, the lawyer transforms himself into a part of his client’s will. The issues he raises and the presentation of facts favour his client’s perspective; they are presented in a way that his client would present, if he could. Notions of fearlessness and partisanship are often interwoven. In order to give a full defence to a suspect, the defence lawyer must be fearless in his approach to protection of their interests. The client will often meet a lawyer post-arrest in the police station, which can be viewed as a hostile environment for a suspect. The police will interrogate the suspect in order to extract a confession from him, and this can then be used as a basis for prosecution. Police questioning may well be hostile and, as such, the defence lawyer will need to act with both ‘courage and devotion’40 in order to protect his client. As Lord Reid identified, a partisan defence lawyer must do all he can to advance his client’s case, which also includes being prepared to do ‘whatever it takes to improve the client’s position.’41 As such, he may offend others who may be uncomfortable with his actions; he may have to ignore certain evidence in order to present his client’s case in a more favourable light and to induce the jury or judge to find a verdict that is favourable to the client. Indeed, this approach – within an adversarial system – is mirrored by the police and prosecution, seeking to present as strong a version of their case as possible. In the context of the CrimPR, this is one example of the tension and conflict that the defence lawyer faces. As a partisan defender of the accused, he is not concerned with seeking the truth or helping the ‘opposition.’ He has an aim of serving the best interests of the client and attempts to persuade others to reach a decision that will fulfil that aim. Despite causing a potential conflict with the defence lawyer’s other obligations, the principle of partisanship is described as

36 M. McConville and L. Marsh, Criminal Judges: Legitimacy, Courts and State Induced Guilty Pleas in Britain (Northampton: Edward Elgar, 2014) at p. 171. 37 [1967] 3 WLR 1666. 38 Ibid. per Lord Reid at para 8. 39 R. O’Dair, Legal Ethics Text and Materials (London: Butterworths, 2001) at 152. 40 G. Lefcourt, Responsibilities of a Criminal Defence Attorney 30. Loy L.A.L. Rev., 61. 41 Ibid.

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the ‘virtue that trumps all other values and virtues.’42 Therefore, the obligation of partisanship should take precedence over the other obligations the defence lawyer has; namely, to the court and the public. This notion is supported by Charles Curtis, who said that the ‘lawyer’s official duty . . . is to devote himself to the client. The [duty to the] court comes second.’43 However, the era of cooperation and mutual goals have rendered this ‘type’ of defence lawyer a relic, and should the lawyer attempt to defend the client with only their best interests in mind, then they will fail in the modern arena. For example, in Gleeson44 the court ruled that the defence tactic of an ‘ambush defence,’ discussed earlier, will no longer be tolerated. This is a clear example of the court emphasising the discovery of objective truth over adversarial proof. At first instance, the prosecution could not prove the offence with which the defendant was charged (namely, conspiracy to defraud). It could only be proven once the indictment had been amended, something only discovered mid-trial. The court allowed the prosecution to do this and chastised the defence for failing to highlight this mistake. Essentially, this decision erodes the long-standing ‘penalty shoot-out theory’ of criminal procedure – that the Crown had one shot at the goal, and if they missed (however unlucky), they do not get another chance.45 Interestingly, this principle appears to remain important in the modern era, in which parties are expected to ‘get it right first time.’46 Whilst it appears that the prosecution still has to prove guilt beyond a reasonable doubt, it is clear the defendant now has to assist the them in doing so, at least in some circumstances. Yet it appears that, despite the notion of efficiency and effectiveness coursing through the CJS, the ‘tolerance of prosecution errors is alarmingly apparent.’47 For example, in Payne, the CPS were allowed an adjournment to ‘get its case in order.’48 However, case law suggests the courts are less sympathetic to the defence in this regard. In Rochford,49 there was a lack of detail in the defence statement and the judge indicated that failure to complete the case statement in more detail would be treated as contempt of court for both the defendant and the lawyer. As such, tolerance and patience are given to the prosecution but in the quest for truth and efficiency, the defence appear to be treated with less sympathy.

42 43 44 45 46 47 48 49

A. Smith and W. Montross, The Calling of the Criminal Defense (1998–1999) 50 Mercer L.R., 522. C. Curtis, The Ethics of Advocacy (1951–1952) Stan.L.Rev 12. [2003] EWCA Crim 3357. J. Chalmers, F. Leverick and L. Farmer, Essays in Criminal Law in Honour of Sir Gerald Gordon (Edinburgh: Edinburgh University Press, 2010) p. 323. See R v R [2015] EWCA Crim 1941 and Sir Brian Leveson, Review of Efficiency in Criminal Proceedings (London: Judiciary of England and Wales, 2015). M. McConville and L. Marsh, Criminal Judges, Legitimacy, Courts and State-Induced Guilty Pleas in Britain (Cheltenham: Edward Elgar, 2014) p. 175. R (on the application of Payne) v South Lakeland Magistrates’ Court [2011] EWHC 1802 (Admin) at para 39. [2010] EWCA Crim 1928.

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Furthermore, as mentioned earlier, in order to fulfil the goals of the overriding objective, defence disclosure is now effectively mandatory in the magistrates’ court. Under the CPIA 1996 regime, defence disclosure was voluntary, although it did trigger secondary disclosure from the CPS. However, under the CrimPR, the case management provisions effectively render voluntary disclosure as obsolete, as even the Case Progression Form is analogous to the defence statement. There is an inherent danger that if completion of such forms – which are arguably administrative in nature – become part of the defence case, this might lead to a breach the privilege against self-incrimination or, at the very least, operate against the best interests of the client. For example, in Firth,50 the prosecution established the identity of the defendant as the assailant by using an admission on the case progression form. The court allowed the admission and held that ‘it does not infringe against the principle that a defendant is not required to incriminate himself for the court to require that the nature of the defence is made plain well before the trial.’51 However, theoretically one could argue that this conclusion is questionable; without the completed form, the prosecution had no way to identify the assailant, a key component of their case. The courts have departed from the Firth stance in a subsequent case, so long as the ‘spirit of the rules’ is adhered to. In Newell,52 the appellant appealed against a conviction for possession of cocaine with intent to supply. At the Plea and Case Management Hearing (PCMH), the appellant did not serve a defence statement and when completing the PCMH Form, the lawyer, who did not represent the appellant at trial, stated ‘no possession.’ On the morning of the trial and under the instruction of new solicitors, a defence statement was served in which he accepted possession of cocaine but denied the intent to supply. The CPS sought to cross-examine him about inconsistencies between the PCMH Form and the defence statement admission. Allowing the appeal, the CACD held that the trial judge should have excluded the Case Progression Form under s.78 PACE 1984, as the sanction of adverse inferences for the failure to serve the defence statement was sufficient.53 This provides a clear conflict of duties for the defence lawyer. In order to combat the potential breach of self-incrimination, Rhodes suggests that the content of the PCMH Form should not contain vast amounts of detail.54 Edwards also suggests that the form should be completed with the word ‘privileged.’55 Whilst the approaches suggested by Rhodes and Edwards appear sound in a theoretical context, the court may well view the approaches as inadequate and per Newell may lead the court to believe that the lawyer is acting outside of the spirit of the rules. As such, the court might admit case management forms in order to help achieve the overriding objective. 50 51 52 53 54 55

Firth v Epping Magistrates’ Court [2011] EWHC 388 (Admin). Ibid. per Toulson LJ at para 22. [2012] EWCA Crim 650. Ibid. at para 36. D. Rhodes, ‘Life in crime: The truth is out there’ (2011) Solicitor’s Journal, 156(19) 16 May. A. Edwards, ‘Case management forms’ (2011) Crim L Rev 546 at 548.

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Ineffective sanctions Although the Case Progression Form now has the potential to further extend the scope of the compulsory disclosure regime in the magistrates’ courts, completion is not a statutory obligation, thus there is no statutory sanction for failure to do so. However, it is arguable that the defence lawyer will have to notify the both the court and prosecution of the accused’s failure to supply adequate information in not completing the form, as this could potentially be deemed a ‘significant failure’ under the CrimPR and therefore hinder the furthering of the overriding objective. As such, the lawyer might, theoretically, be obliged to act against his client’s interests by informing both the court and the prosecution that his client did not wish to comply. This places the defence lawyer in a uniquely challenging position. Yet the sanctions applied for such failures are somewhat ineffective. Sanctions for non-compliance are set out in sub-rule 3.5(6) of the CrimPR: If a party fails to comply with a rule or a direction, the court may – (a) fix, postpone, bring forward, extend, cancel or adjourn a hearing; (b) exercise its powers to make a costs order; and; (c) impose such other sanction as may be appropriate. The biggest threat to the defence is arguably a Wasted Costs Orders (hereafter WCO). In SVS,56 the defence failed to serve a defence statement to the prosecution; However, the defence insisted it was ‘essential’ to fly a witness from Australia to give evidence. At trial, it was concluded that the witness was not required, despite attending. The CPS made an application for wasted costs against the defence. The court held that the firm representing the defendant had failed to ‘[set] out the grounds of objection to the admission of [the witness’s] statement . . . within the stipulated time or at all’ and concluded that this was a ‘clear breach’ of the CrimPR.57 As such, the court held that ‘[t]he judge was entitled to conclude that a cross-application setting out that part [of the defendant’s] case that he had to put to [the witness] should have been served’ notwithstanding that ‘the client refused to sanction this step.’58 The court stated that ‘the appellant firm should have ceased to act for [the client]’ because the failure ‘was not a mere error of judgment.’59 Rather, they concluded that ‘[t]he defendant was manifestly seeking to manipulate the court’s processes’ by ‘insisting on the appearance of [the witness] without disclosing the defence case that was to be put to [him]’ and that ‘the appellant firm made themselves complicit in the manipulation being practiced by their client.’60 The decision led to the Law Society issuing a practice note informing defence

56 57 58 59 60

[2012] EWCA Crim 319. Ibid. at para 24. Ibid. Ibid. Ibid.

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lawyers that, should their client prevent them from complying with the CrimPR, they need to inform the court, as any failure could be interpreted as ‘manipulation of its process . . . and could give rise to a WCO being made against the solicitor.’61 This case makes it clear that courts are now actively attempting to ensure the defence complies with the CrimPR; but there remains an inherent difficulty in finding a suitable sanction that will ensure compliance. The threat of a WCO looms heavily over the lawyer, though the primary purpose of the order is ‘not to punish but to compensate.’62 As Wainwright et al. argue: As the costs order can be regarded as having a penal element when it is ordered against a non-party, a mere mistake by a legal representative (or his employee) is not sufficient to justify an order. There must be a more serious error.63 Should an application to adduce new evidence or introduce a witness be made outside of the prescribed time limits, the court can refuse an application to hear the evidence. In Musone,64 at a late stage in a murder trial, the appellant attempted to introduce hearsay evidence without any prior notice. This evidence was highly damaging to the co-accused. The trial judge refused leave and the decision was upheld. Moses LJ said: The Act . . . gives power to the judge to prevent that which, in the judge’s assessment, might cause incurable unfairness either to the prosecution or to a fellow defendant. Plainly, the procedural rules should not be used to discipline one who has failed to comply with them in circumstances where unfairness to others may be cured and where the interests of justice would otherwise require the evidence to be admitted.65 Both defendants were blaming the other for the murder. Moses LJ thought it was not possible to achieve the overriding objective if the court had no power to prevent deliberate abuse of the trial process, in this instance denying the co-defendant the opportunity of dealing with the allegation properly. As such, the court had the power to exclude the evidence. Furthermore, to combat an ambush defence, the court could allow the prosecution to introduce further evidence even though the prosecution had closed its case. A similar approach was adopted in Writtle v DPP,66 in which the defence sought to introduce an expert report after the close of the prosecution case. The magistrates rejected the application, deeming it irrelevant

61 Law Society Practice Note: Criminal Procedure Rules 2015: Solicitors’ duties (29 February 2016) para 4.4, available here: www.lawsociety.org.uk/support-services/advice/practice-notes/thecriminal-procedure-rules-2015-solicitors-duties/ [last accessed October 2019]. 62 T. Wainwright, E. Fenn and S. Begum, Criminal Disclosure Reference, 2nd Edition (Haywards Heath: Bloomsbury Professional, 2017), p. 72 63 Ibid. at p. 73. 64 [2007] EWCA Crim 1237. 65 R v Musone [2007] EWCA Crim 1237 per Moses LJ at para 37. 66 [2009] EWCA 236 (Admin).

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to the issues outlined in the Case Progression Form and concluding the defence lawyer was effectively seeking to introduce wholly new evidence. The CACD held that if the expert evidence could have been disclosed at a very early stage and the late application to adduce further evidence would undoubtedly cause delay, then this approach was to be ‘deplored.’67 The court held that the defence lawyer either knew the nature of the defence but failed to raise it appropriately, or the defence was contrived at the close of the prosecution’s case.68 The court believed that the efficient administration of justice would be delayed, as the prosecution would need adequate time to consider how to refute the ‘new’ evidence and reiterated the point that the issues in the case should be ‘identified well before a hearing.’69 Despite not carrying any statutory weight, Case Management Forms are now akin to the defence statement. However, failure to comply with any CrimPR provision carries no express sanction. The CrimPR are administrative rules rather than statutory; as such, it cannot create a sanction of, for example, adverse comment or inferences. Although the rules do not contain an adverse inference sanction, there are other enforcement mechanisms designed to ensure all parties comply with the provisions. Auld LJ noted the problem of creating an enforcement mechanism for compliance, having ‘anxiously searched here and abroad for just and efficient sanctions and incentives to encourage better preparation for trial.’70 He concluded that ‘we are not alone in this search and that, as to sanctions at any rate, [the search] is largely in vain.’71 Nonetheless, the Rules have attempted to fill this apparent gap (as outlined above).72 Whilst these sanctions are not explicitly penal in nature, the effect may be for the affected party. As discussed above, the court has the power to make a costs order73 or the court can impose any sanction as may be deem appropriate.74 Taken at face value, the final provision appears to give the court a great deal of latitude in administering effective enforcement mechanisms. However, with no statutory weight behind the rules, no clarity or detail about what sanctions to use and when, and little evidence that such sanctions ensure compliance, it is difficult to envisage anything other than the court administering a financial penalty in respect of costs being ordered. Auld LJ did highlight the difficulty of using such tools, believing that orders of costs, WCOs, the drawing of adverse inferences, or depriving one side or the other of the opportunity of advancing an aspect (or all) of their case were not ‘apt ways of encouraging and enforcing compliance with criminal pretrial procedures.’75 Furthermore, the making of orders directly against

67 68 69 70 71 72 73 74 75

Ibid. at para 14. Ibid. Ibid. Supra n.4 at para 231. Ibid. Rule 3.5(6)(a) Criminal Procedure Rules 2015. Rule 3.5(6)(b) Criminal Procedure Rules 2015. Rule 3.5(6)(c) Criminal Procedure Rules 2015. Supra n.4 at para 229.

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defendants are rarely a viable option owing to their lack of means, as well as the difficulty in apportioning blame between the client and their lawyer.

The blame game: the levelling of the scales Since the mid-1990s there has been a prevailing mantra that it is primarily the defence who frustrate the CrimPR, based on the stereotypical belief that they are seeking some unfair tactical advantage to allow their client to escape justice. The advent of the CJPOA 1994 meant that suspects could no longer stay silent in the police station and then ambush the prosecution at trial without the risk of adverse inferences being drawn.76 As mentioned earlier, this was a key reason the Government highlighted in favour of forcing early disclosure of the defence case, arguing that ‘hardened criminals have refused to answer police questions, only to ambush the prosecution by raising a defence at trial for the first time.’77 However, there was little evidence to suggest that ambush defences posed any threat to the administration of justice. Leng found that ‘the proportion of contested cases in which an ambush defence was raised was . . . at most 5 per cent,’78 with the vast majority of those defendants being convicted at trial anyway. So, if the use of this form of defence was not problematic in practice, was it worth the cost of diluting adversarial norms? Zander strongly disputed this (as mentioned earlier), and argued that, conversely, the cost of delays could be greater, citing the example provided by Levi in his examination of serious fraud trials.79 He found that disclosures were largely ineffective because the information provided was specific; this, he argued, was likely to cause rather than remedy delays, as each side demands more information from the other. Over the last 20 years, the tone and tenor of both the Government and courts has suggested that blame for disclosure failures lies primarily at the feet of the defence. Even when the prosecution has manifestly failed and been sanctioned, the courts cannot resist the opportunity to remind the defence that they have to play by the rules too and should highlight the failures of their counterparts earlier. In Boardman,80 the first instance court were ‘exasperated with the conduct of the

76 Whilst this is outside the scope of this chapter, the Act represented the first curtailment of the due process rights of the suspects. This was seen as the government taking back some of the rights that have been afforded to the suspect in the police station. See H. Quirk, ‘The right to silence in England and Wales’ sacred cow, sacrificial lamb or Trojan Horse?’ in J. Jackson and S. Summers (Eds.), Obstacles to Fairness in Criminal Proceedings: Individual Rights and Institutional Reforms (Oxford: Hart Publishing, 2018) pp. 75–97. 77 Michael Howard, ‘Crime and punishment: Restoring the balance,’ Frank Newsam Memorial Lecture, Bramshill College, April 19, 1995 as cited in R. Leng, ‘Losing sight of the defendant: The government’s proposals on pre-trial disclosure’ (1995) Crim L.R 704 at 705. 78 R. Leng, The Right to Silence in Police Interrogation: A Study of Some of the Issues Underlying the Debate, RCCJ Research Study no 10 (1993) at p. 58. 79 M. Levi, The Investigation, Prosecution and Trial of Serious Fraud, RCCJ Research Study no. 14 (1993) 104, 182. 80 [2015] EWCA Crim 175.

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prosecution’81 who had failed to disclose evidence of telephone data records which could potentially be excluded under s.78 PACE 1984. Despite the failures resting with the prosecution, the CACD sounded ‘notes of warning’82 to the defence as the defendant’s lawyers ‘did not alert the court to the problems of non-disclosure at a time when something can be done about it.’83 As such, as well as preparing and advancing their own case, the defence should now be alert to failures of the prosecution – a significant and distinctly non-adversarial burden, which emphasises that the defence must be an active and cooperative participant driven by the shared goal of dealing with cases justly. This was supported in Hassani,84 in which the court reminded the defence that if ‘[they] are going to suggest that some document or piece of service is missing, they must do so early.’85 If they failed to do so, it would be ‘open to the court to find that the point was raised late, and any direction then sought to produce a document or apply for an adjournment may be properly refused.’86 These obligations thus mean the defence cannot sit back and do nothing if they notice a fundamental flaw in the prosecution case. McConville and Marsh suggest that ‘negative duties on the defence have now become positive duties: the defence is now under a duty to remedy flaws in the prosecution case.’87 However, when examining the most recent Criminal Justice Quarterly Statistics,88 it is clear that the rate of failures to be ready for trial (owing to lack of disclosure) are remarkably similar for both parties: Collapsed Cases: Disclosure Failures

350 300 250 200 150 100 50 0

2015

2016 Prosecution

2017

2018

Defence

Ibid. at para 39. Ibid. at para 40. Ibid. R (on the Application of Hassani) v West London Magistrates’ Court [2017] EWHC 1270 (Admin). Ibid. at para 12. Ibid. M. McConville and L. Marsh, Criminal Judges: Legitimacy, Courts and State Induced Guilty Pleas in Britain (Northampton: Edward Elgar, 2014) 174 88 Data taken from ‘Trial Effectiveness Tool’ Criminal Justice Quarterly Statistics January to March 2019, available here: www.gov.uk/government/statistics/criminal-court-statistics-quarterlyjanuary-to-march-2019 [last accessed March 2020]. 81 82 83 84 85 86 87

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The latest iteration of the CrimPR came into force in 2015, and since then there has clearly been a vast improvement in the way that the defence prepare and disclosure their cases in advance of trial. However, despite this improvement, the general tenor of the court continues to focus on the danger that the defence will attempt to ‘game’ the system to frustrate justice. Yet the evidence presented earlier suggests the courts might look at the prosecution with similar cynicism in light of the number of failings for which they are responsible. In 2019, a Freedom of Information request submitted by The Times revealed that 1,078 cases were discontinued between January and September 2018 due to disclosure failures, marking a 53% increase when compared with the whole of 2014.89 Yet such cynicism may be unfair; police handling of disclosure may leave the CPS ‘boxed in,’ a situation only exacerbated by the continuing issue of funding. In response to the statistics presented here, the chairwoman of the Criminal Bar Association hinted at the cause behind such problems, arguing that ‘the government has a constitutional and moral duty to ensure there is sufficient funding across the system to ensure a good and proper disclosure regime.’90 The President of the Law Society echoed this call, stating that the prosecution system ‘was starved of funds [and] plagued by endemic delays.’91 That being said, funding is a frequently cited excuse; there have been a number of reviews92 into the disclosure regime, all suggesting myriad answers – yet none fully tackle the issue of occupational culture. As Chapters 3 and 4 will suggest, the police and prosecution are effectively on the same side with the shared goal of securing a conviction. In practice, it continues to appear that to cooperate with the defence and provide them with information that might undermine the police and prosecution case remains an alien concept, despite two decades of the CPIA 1996 regime. On the contrary, to expect the defence lawyer and his client to cooperate with the prosecution and the court to achieve the overriding objective is fully entrenched and increasingly complied with. This inequality represents a fundamental problem with a managerial approach to a traditionally adversarial system. The current process blunts a number of adversarial weapons and potential safeguards for the defence with the end goal of an efficient and economic process justifying the means. However, traditional adversarial culture still permeates

89 R. Ellis and J. Ames, ‘Evidence failings cause twice as many criminal cases to collapse,’ The Times, 15 October 2019, available here: www.thetimes.co.uk/article/evidence-failings-cause-twiceas-many-criminal-cases-to-collapse-2vm0hn06r [last accessed March 2020]. 90 D. Barrett, ‘Twice as many criminal cases collapse due to evidence failings as key information is not disclosed to defence lawyers over the last four years,’ Daily Mail, 15 October 2019, available here: www.dailymail.co.uk/news/article-7573413/Twice-criminal-cases-collapse-evidence-failings-keyinformation-not-disclosed.html [last accessed March 2020]. 91 Supra n 89. 92 See generally, Crown Prosecution Service Inspectorate, The Inspectorates Report on The Thematic Review of the Disclosure of Unused Material, Thematic Report 2/2000, March 2000; J. Plotnikoff and R. Woolfson, ‘A fair balance? Evaluation and operation of disclosure law’ RDS Occasional Paper No 76, 2001; and HMCPSI, Making it fair – a joint inspection of the disclosure of unused material in volume Crown Court cases, (2017).

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through the police and the case construction of the prosecution with ineffective sanctions for non-compliance.

Conclusion This chapter has highlighted the drift toward a less adversarial and more managerial approach to justice and specifically the operation of disclosure post-investigation. This has arguably come at the expense of traditional and vital adversarial safeguards. The defence have consistently been singled out by the courts for failure to comply with the letter and spirit of the CrimPR, and accused of attempting to give clients a ‘sporting chance’ rather than dealing with a case ‘justly.’ However, a comparison of the parties in terms of readiness for trial suggests the difference is small, and in fact favourable to the defence.93 Multiple examples (discussed elsewhere in this book) make it apparent that in serious cases the prosecution is providing inadequate disclosure to the defence, leading to delays at best, or collapsed cases and miscarriages of justice at worst. With these results in mind, embracing managerialist ideology, which incorporates notions of more economic, effective and efficient processes, should be halted. In order to deal with cases justly, this chapter contends that a reversal in procedural culture is needed, in order to restore balance in a system which retains an adversarial architecture. The criminal justice system of E&W ought to reflect traditional adversarial values which continue to, in theory, underpin so much of its construction; reverting to such values would reduce the level of defendant cooperation and reassert vital safeguards such as the privilege against self-incrimination. Lord Justice Auld’s ‘sporting chance’ mantra, and its mention of the ‘twin principles’ of the burden of proof and the right to silence, highlights a conflict, as such principles are (arguably) an affront to the managerial values adopted as part of the CJS over the last 20 years. The prosecution must prove guilt, yet it appears they can now expect assistance from the defence in terms of readily identifying errors or omissions in their case. The privilege against self-incrimination is offended when case management and its associated forms can be used as substantial evidence against the defendant.94 The criminal courts have adopted a tunnel-vision approach to enforcement, believing that it is the defence that will attempt to subvert the overriding objective of the CrimPR. However, statistics tell a different story. The raft of disclosure failures resulting from police and prosecution errors that are discussed in this book and elsewhere add weight to the need for a more equitable approach to sanctioning. Whilst issues of funding and training cannot be ignored, it is perhaps more important that there be a change in culture – either restoring both parties to a classic adversarial approach (in which the defendant is fully protected by vital safeguards) or diluting police and prosecution adversarialism to match the cooperative approach required of the defence.

93 Table 1. 94 R v Newell [2012] EWCA Crim 650.

2

‘Something to work with’ Contemporary issues with pre-charge police disclosure and the role of the defence lawyer Stephen Davies* and Dr Ed Johnston** with Anthony Edwards+

Introduction Pre-charge disclosure of evidence in the police station is of pivotal importance for the suspect and the defence lawyer and fundamental to a fair and transparent criminal investigation. Its importance can be overlooked, with the regime itself reliant on the defence regulating the obligations of the investigating officer. It is one of the key ingredients which any defence representative will need in order to formulate effective and meaningful legal advice for a suspect. The quality and quantity of police station disclosure will determine the legal advice provided to the suspect at the crucial earliest stages of the criminal justice process and, assuming the suspect follows it, the advice can shape the course of proceedings that may follow after charge and beyond. In short, pre-charge disclosure matters a great deal, not only at the start of a police investigation, but throughout the life of a case. This chapter will examine some of the key issues relating to police (and to some extent, CPS) disclosure at the investigative stage and, particularly, the impact this has on the role of the defence lawyer. It will examine the obligations of the police concerning disclosure and provide a critique of the flaws within this regime. The chapter will examine some of the most significant developments to have influenced disclosure practice over the last three decades – particularly, the introduction of adverse inferences from the silence of the suspect at the investigative stage. Finally, the chapter will conclude with some consideration of the proper role of the defence lawyer within this context and how the defence can effectively seek, and challenge, police disclosure at the investigative stage. The EU Directive 2012/13/EU on the right to information in criminal proceedings describes pre-interview disclosure as ‘information provided to suspects or *

Stephen Davies is a Criminal Defence Solicitor at Tuckers Solicitors LLP, daviess@tuckers solicitors.com. ** Dr Ed Johnston is a Senior Lecturer in Law at UWE, Bristol, [email protected]. + Anthony Edwards is a non-practising solicitor and former partner at TV Edwards. This chapter is based on a paper Anthony presented at the SLSA Seminar Series, The Perennial Problem with Disclosure: A Way Forward? at UWE Bristol in July 2019. The authors would like to thank Anthony for his assistance with the completion of this chapter.

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accused persons about the criminal act they are suspected or accused of having committed’, including ‘a description of the facts, including, where known, time and place, relating to the criminal act that the persons are suspected or accused of having committed and the possible legal classification of the alleged offence.’1 At the pre-charge stage, this is primarily regulated by PACE 1984 and its attendant Codes of Practice, a statute introduced, in part, to rectify decades of problematic police behaviour during criminal investigations. Disclosure is dealt with, largely, by Code C2 which relates to the detention, treatment and questioning of nonterrorist suspects in police custody. The 2012 Directive states disclosure ‘should be given promptly, and at the latest before their first official interview by the police or another competent authority, and without prejudicing the course of ongoing investigations’ and must be given ‘in sufficient detail . . . to safeguard the fairness of the proceedings and allow for an effective exercise of the rights of the defence.’3 Understanding and applying the Codes in practice enables the defence lawyer to secure the rights afforded by them.4 Disclosure is provided by the Interviewing Officer or the OIC,5 and will normally take place prior to the suspect being interviewed under caution. This will also usually be provided prior to the defence lawyer going into consultation with the suspect to take instructions. It is an opportunity for the defence lawyer to ascertain information as to what the allegation(s) are against the suspect, the strengths and weaknesses of the case, and what evidence is likely to be outstanding and unavailable prior to the start of the interview. Importantly, pre-charge disclosure is only applicable to represented suspects. According to guidance from the College of Policing, unrepresented suspects are not given a pre-interview briefing, as it is thought they may not understand the evidential value of any material provided.6 Disclosure is a continuing requirement, as is the ability of the suspect to have a private consultation with their representative before and during an interview.7

1 OJ L 142, 01.06.12, at 28. 2 See generally, Code C revised: Code of practice for the detention, treatment and questioning of persons by police officers, August 2019, available here: https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/826813/PACE-Code-C_2019.pdf [last accessed April 2020]. 3 EU Directive 2012/13/EU of the European Parliament and of the Council of 28 May 2012 on the right to information in criminal proceedings at 28. 4 Code D, 3.1 also identifies limited rights of disclosure: ‘A record must be kept of the description of the suspect as first given by the eye witness. The record must be made and kept in a form which enables details of the description to be accurately produced from it in a visible and legible form which had been given to the suspect or the suspect’s solicitor in accordance with this code.’ 5 The interviewing officer is a police officer, usually a Police Constable or Detective Constable, who conducts the interview, whereas the Officer-In-Charge or Officer-In-Case (OIC) is tasked with following up lines of enquiry thereafter. The interviewing officer may also be the OIC, though sometimes they are not. OIC as an acronym, varies across the jurisdiction. 6 See the College of Policing Guidance on Investigative Interviewing, available here: www.app. college.police.uk/app-content/investigations/investigative-interviewing/ [last accessed April 2020]. 7 Cadder (Peter) v HM Advocate [2010] UKSC 43.

‘Something to work with’ 21 Pre-interview disclosure by the police must not be misleading. The defence lawyer’s advice is only as good as the disclosure he receives from the police, and the instructions he receives from the client. For the police to deliberately mislead the defence lawyer during pre-interview disclosure is, de facto, influencing the advice given to the suspect. For example, in Mason,8 the police ‘hoodwinked both solicitor and client’9 when they deliberately made the defendant believe they had a fingerprint on some of the glass fragments from the bottle that was used to perpetrate the crime. Such action was deemed the ‘most reprehensible thing to do.’10 Even if disclosure is not misleading, the police may attempt to give the impression their case is stronger than it actually is. In such a scenario, the defence lawyer should be particularly mindful of ‘phased’ disclosure strategies – the process in which the police drip-feed information to the defence from the initial briefing stage, and throughout the interview process – as the strength of the prosecution case may impact on the strategy deployed by the defence. In Imran & Anor,11 the court held that in relation to the provisions of the CJPOA 1994, the police are not required to disclose everything prior to the commencement of an interview but did confirm the duty on the police not to actively mislead any suspect.12 A fundamental role of the defence solicitor is to advise a client whether or not there is a sufficient case against him for which he would need to raise a defence. In DPP v Ara, the court held there is a duty on the police to disclose the details of a previous interview; failure to do so may be an abuse of process.13 The reason being is that acceptance of a caution is ‘inextricably linked with his entitlement . . . to legal advice’; details of the previous interview impact on the accuracy of the legal advice.14 However, the court clarified that this does not amount to a police obligation to disclose material prior to charge; it is impracticable and undesirable, especially regarding ongoing investigations.15 One reason for voluntarily disclosure is that the investigator can withhold material which may prejudice further inquiries or the wider investigation. In Farrell,16 the court held that ‘it is . . . important to make clear that in our view it is not [the] court’s function, and we do not intend to do so, to lay down what should and what should not be disclosed in detail before an interview starts.’17 Lord Justice Buxton went on to say: [W]e do not seek to lay down rules for pre-interview disclosure. It is very much a matter for the judge to decide whether there has been relevant misleading of a defendant; but judges may wish to consider whether it is appropriate

8 9 10 11 12 13 14 15 16 17

R v Mason (Carl) [1988] 86 Cr App R 349. R v Mason (Carl) [1988] 86 Cr App R 349 at 353, Watkins L.J. Ibid. [1997] EWCA Crim 1401. R v Imran & Anor [1997] EWCA Crim 1401, Mr Justice Rougier. DPP v Ara [2001] 4 All ER 559 at 23. Ibid. at 24. Ibid. at 25. R v Farrell [2004] EWCA Crim 597. Ibid. at 20, Lord Justice Buxton.

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The police are not required to disclose the questions or the topics they wish to put to the suspect. This judgment is left to the police, but they must conduct the interview fairly.19 If detention or a warrant is in question, Code C 3.4(b) – which requires disclosure of materials ‘essential to effectively challenging’ such matters – may be relied upon insofar as representations to the Custody Sergeant; however, the House of Lords held in Ward20 that it is not to the suspect’s disadvantage if the line of questioning is withheld until interview, as the suspect’s safeguard is judicial oversight. It is ‘the judge whose function it is rigorously and comprehensively to examine the basis on which the application is being made.’21 Consequently, the notion of the overriding objective of the CrimPR 2015 is to deal with cases ‘justly.’22 This includes ‘acquitting the innocent and convicting the guilty.’23 Arguably, this goal is immediately put in doubt from the outset. Withholding such disclosure is at odds with efficiency drivers and creates opportunity for the investigator to be uncooperative. Whilst it may highlight the adversarial nature of the criminal justice system, it does generate further risk as to unnecessarily prolonged detention; judicial oversight by this stage may be too late. Nevertheless, the European Court of Human Rights have made clear the importance of the right to legal advice in Salduz v Turkey.24 The court held that ‘the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment.’25

The evolution of pre-charge disclosure Until the implementation of the CJPOA 1994, very few represented suspects were advised to say anything but ‘no comment,’ and any disclosure made little difference to this; at the time, minimal disclosure was a given, and that also accorded with police culture. However, as later chapters will explore, the culture of defence disclosure has been dramatically transformed, whereas police station disclosure remains limited. A marked change in culture from the mid-1990s onwards meant the ‘no comment’ interview could not remain unaffected, which has subsequently had a significant impact on the nature of pre-charge police disclosure. There were arguably three fundamental reasons for this: the implementation of the CJPOA 1994; the expansion, in the modern

18 19 20 21 22 23 24 25

Ibid. 28, Lord Justice Buxton. Ward v Police Service of Northern Ireland [2007] UKHL 50 at 22. [2007] UKHL 50. Ibid. at para 28. Rule 1.1(1) CrimPR 2015. Rule 1.1(1)(2)(a). Salduz v Turkey Application No.36391/02 (2009) 49 E.H.R.R. 19. Ibid. at 54.

‘Something to work with’ 23 age of austerity, of diversions from and delays to prosecution; and the increased availability of digital forensic evidence.

The implementation of the Criminal Justice and Public Order Act (CJPOA) 1994 Despite strong reservations expressed by the RCCJ in its 1993 report,26 the thenGovernment implemented the CJPOA 1994, making it possible, in defined circumstances, to draw adverse inferences from a suspect’s silence.27 The potential threat of adverse inferences meant that ‘no comment’ could not survive as the default approach to advice. It should, however, be noted that the provision under section 38(3) of the 1994 Act means that a suspect shall not be convicted of an offence solely on an inference drawn from a failure or refusal to give an account.28 The underlying requirement for drawing adverse inferences is that there are reasonable grounds to believe involvement in crime. Essentially, this means there must already be a prima facie case against a suspect. These provisions are in many ways no more than an expression of common sense; if, for example, someone is found with a credit card in another person’s name, an explanation is reasonably going to be required at some stage. Section 34 is the most impactful and relevant provision of the CJPOA 1994 in this context. Informally referred to as the provision against ‘ambush defences,’ it is best summarised by the caution issued to suspects upon arrest: ‘it may harm your defence if you do not mention when questioned something which you later rely on in court.’29 However, if there is no sufficient disclosure by the police of a case for the suspect to answer, it will not be reasonable to expect a response from the suspect, and therefore adverse inferences cannot be drawn. As such, faced with insufficient disclosure, no competent legal representative should advise their client to comment. Case law suggests little or no disclosure may be a good reason for the defence representative to advise ‘no comment.’ In Roble,30 the court held that good reasons may exist for doing so, stating that an example would be: ‘if . . . the interviewing officer has disclosed to the solicitor little or nothing of the nature of the case against the defendant, so that the solicitor cannot usefully advise his client or, where the nature of the offence, or the material in the hands of the police is so complex, or relates to matters so long ago, that no sensible immediate response is feasible.’31 The CACD held in

26 For example, the Royal Commission favoured the adversarial system, rather than an inquisitorial system. 27 The court may draw an adverse inference from silence if the suspect fails to mention a relevant fact when questioned. An adverse inference can only be drawn if six conditions are satisfied. See R. v Brian Argent [1997] 2 Cr. App. R. 27 at 32–33 per Lord Bingham. 28 Criminal Justice and Public Order Act 1994, s.38(3). 29 See Gov.UK (Being Arrested: Your Rights) available here: www.gov.uk/arrested-your-rights [last accessed April 2020]. 30 [1997] CLR 346. 31 R v Roble [1997] CLR 346; also see R v Nottle (Paul James) [2004] EWCA Crim 599 at 15.

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Condron32 that the trial judge was correct to leave it open to the jury to draw an adverse inference from the failure to answer questions, notwithstanding the solicitor’s advice. The court concluded that the failure could only sensibly be attributed to the accused’s having fabricated the evidence subsequently. Thus, the advice from the solicitor was not enough to protect the defendant from the judge directing an adverse inference to the jury.33 However, in the subsequent application to the EctHR,34 it was held that ‘appropriate weight’35 must be given to the fact a defence lawyer has advised a suspect to maintain silence, despite concluding the adverse inference was appropriate. In this context, if pre-charge disclosure is sufficient, it will be in the public interest to see what the suspect has to say about the allegations against him; otherwise the purpose of the CJPOA 1994 is thwarted if silence upon legal advice avoids adverse inferences.36 As such, defence representatives must have soundly based objective reasons – such as inadequate disclosure – for advising ‘no comment.’37 In short, the balance between the right to silence and the burden and standard of proof is difficult to strike. The police are not obliged to disclose everything. There are few rules and no standardised procedures governing pre-interview disclosure.38 The extent of police disclosure will depend on the nature of the case, and the OIC is considered to be best placed to assess this. This was clarified in Nottle,39 when the court stated that ‘the police were not obliged to disclose every piece of evidence that they had’ but did confirm that ‘[t]he purpose of the pre-interview disclosure derives from the realisation by the police that, without proper disclosure, solicitors cannot properly advise their clients.’40 In the context of adverse inferences, the court suggested that the police may voluntarily go beyond the low level of compulsory disclosure ‘in order to counter an argument at trial that no adverse inferences should be drawn.’41 To avoid an adverse inference, some defendants will claim silence was based on legal advice. However, in Hoare,42 the court held that doing so must be reasonable, stating that advice and reliance must be ‘genuinely given and genuinely accepted’ and not ‘because [he] had no or no satisfactory explanation to give.’43 This decision highlights the significance of pre-charge disclosure to legal advice. However, the decision in Beckles44 raises concerns and questions about the viability of free, independent legal advice. Defence lawyers advise a suspect based on the level of pre-interview

32 33 34 35 36 37 38 39 40 41 42 43 44

[1997] 1 Cr. App. R. 185. R. v Karen Condron and William Condron [1997] 1 Cr. App. R. 185 at 185–186. Application No. 35718/97 (2001) 31 E.H.R.R. 1. Condron v United Kingdom Application No. 35718/97 (2001) 31 E.H.R.R. 1 at 60. See R v Howell (Jeffrey John) [2003] EWCA Crim 01. R v Howell (Jeffrey John) [2003] EWCA Crim 01 at 24, Lord Justice Laws. PACE Code C 11.1A; and see R v Nottle (Paul James) [2004] EWCA Crim 599. R v Nottle (Paul James) [2004] EWCA Crim 599. Ibid. Ibid. R v Hoare and Another [2004] EWCA Crim 784. Ibid. at 55, Auld LJ. R v Beckles (Keith Anderson) [2004] EWCA Crim 2766.

‘Something to work with’ 25 disclosure and the client’s instructions at the time. If a jury can be directed to question the reasonableness of that advice, i.e. by a judge’s direction which casts doubt as to the ‘true explanation for silence,’45 the defence lawyer is, by default, advising with the consideration of what 12 random people on a jury might think of that advice, several months, or even years, after the advice was given. Advice therefore has a dual-purpose: to assist in (hopefully) getting the client out of the police station (for the present) and to protect the client at a later date (for a future trial). The current position on disclosure can best be explored by reviewing the case of Green.46 The defendant was prosecuted for inflicting GBH under s.20, OAPA 1861. At trial he ran two defences. The first was defence of another, namely, his father for whose safety he said he feared. The second was defence of property, given his concern that with one wing mirror broken other parts of the car would also be damaged. The whole incident was caught on CCTV. At the police station, the police officer gave a wholly inaccurate description of what had actually occurred but offered the defence lawyer an opportunity to view the CCTV which had captured the whole episode. At trial the Crown applied to draw inferences from the silence in interview and the judge agreed. The defendant gave evidence that he made ‘no comment’ based on the advice of his solicitor. The defence argued no specific question had been asked which he had refused to answer. Rather, the defendant was asked a general question to explain what occurred at the time of the incident. The defendant was convicted, and the CACD held that, notwithstanding there was no specific question, it was possible to draw inferences from questions of a general nature to explain what happened on the day. However, the appeal succeeded for two reasons; most significantly, the judge omitted any reference to the defence of property, but also failed to give accurately the summing up on drawing inferences from silence. Indeed, this is so complex that few judges will want to enter that arena unless there are very clear grounds for doing so.

The impact of ‘diversionary’ practices on disclosure Pre-charge disclosure, and indeed the provision of ‘no comment’ advice by legal representatives, has also been impacted by the increased use of ‘diversionary’ practices at the early stages of an investigation. CPS legal guidance suggests cautioning is the only formal disposal which diverts away from prosecution, though it is not the only way; a Penalty Notice for Disorder may be issued, or it may be that the matter is diverted away from criminal justice altogether by taking no further action, or giving informal advice.47 This has arguably been driven by the challenging financial constraints faced by all actors within the CJS over the last decade. Since 2010, cuts to policing budgets

45 R v Beckles (Keith Anderson) [2004] EWCA Crim 2766 at 46. 46 R v Green (Ricky) [2019] EWCA Crim 411. 47 CPS, Cautioning and Diversion, available here: www.cps.gov.uk/legal-guidance/cautioning-anddiversion [last accessed April 2020].

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have resulted in 21,000 fewer police officers48 and closure of over 600 police stations.49 The Ministry of Justice has engaged in an aggressive court closure programme, with over 50% of Magistrates’ Courts having ceased to function.50 The CPS,51 National Probation Service52 and Criminal Legal Aid budgets53 have all been cut. Predating these developments, the New Labour Government of the late 1990s and 2000s encouraged increased use of diversions from prosecution, something which has only been accelerated by the austerity measures of the Coalition and Conservative Governments post-2010. For example, there has been a 45% reduction in prosecutions between 2010 and 201854 The prospect of a diversion, particularly if it is disclosed to the suspect at an early stage, means the defence lawyer must give careful consideration to the correct route forward. Nevertheless, the prospects of diversion should never be underestimated, and a rigorous approach to testing the strength of the police case at this early stage should still be applied. The practice of police disclosure prior to charge has also developed significantly in recent years due to another form of ‘diversion’: that is, the increased use of ‘release under investigation’ (hereafter RUI). RUI is the practice of releasing persons arrested on suspicion of, but not charged with, an offence without bail (or in other words, they are simply ‘released’); however, suspects are informed that they are RUI (which is in fact an operational police term with no formal legal status). This implies (but does not confirm) that the investigation remains live and leaves the suspect with no clear idea as to their status in relation to it.55 It is thus a form of investigative ‘limbo,’ with no time limits, legal or procedural framework, or oversight. Whilst it is technically an informal investigation strategy rather than a disposal, because of its flexible and unregulated nature RUI can be considered an additional ‘outcome’ mechanism available to the police. It may therefore represent,

48 R. Schraer, ‘Have police numbers dropped?,’ BBC, 26 July 2019, available here: www.bbc.co.uk/ news/uk-47225797 [last accessed April 2020]. 49 J. Ungoed-Thomas, T. Harper and K. Shevda, ‘600 police stations shut in eight years,’ The Times, 2nd September 2020, available here: www.thetimes.co.uk/article/600-police-stations-shut-in-eightyears-nvjdjwmwj [last accessed April 2020]. 50 O. Bowcott and P. Duncan, ‘Half of magistrates’ courts in England and Wales closed since 2010, The Guardian, 27 January 2019, available here: www.theguardian.com/law/2019/jan/27/half-ofmagistrates-courts-in-england-and-wales-closed-since-tories-elected [last accessed April 2020]. 51 J. Hyde, ‘CPS can take no more cuts–attorney general,’ The Law Society Gazette, 23 January 2019, available here: www.lawgazette.co.uk/news/cps-can-take-no-more-cuts-attorneygeneral-/5068981.article [last accessed April 2020]. 52 J. Robins, ‘In probation, we’re poorly paid and the caseloads are unmanageable,’ The Guardian, 13 March 2019, available here: www.theguardian.com/society/2019/mar/13/probation-poorly-paidcaseloads-unmanageable-chris-grayling [last accessed April 2020]. 53 House of Commons Justice Committee, Criminal Legal Aid (HC 1069, 26 July 2018). 54 M. Fenhalls, ‘QC, Sharp fall in criminal prosecutions shames our country,’ The Times, 18 July 2019, available here: www.thetimes.co.uk/article/the-sharp-fall-in-criminal-prosecutions-shamesour-country-9bnfz5vcx [last accessed April 2020]. 55 E. Cape, The Police Bail Provisions of the Policing and Crime Act 2017 (Crim. L.R, 8, 587–600, 2017).

‘Something to work with’ 27 in effect, a form of diversion – either temporary or permanent – much like No Further Action (NFA) or an out-of-court disposal. In the aftermath of the Policing and Crime Act 2017 (which overhauled and limited pre-charge bail) the use of RUI increased sharply. The College of Policing found that, between April and June 2017, bail without charge was used in only 4% of cases (down from 26% in March 2017) whilst 25% of cases involved RUI (which was previously not used at all).56 In 2017–18, 193,073 were RUI, including more than 93,000 suspected of violence and sexual offences.57 In contrast, the use of bail has dramatically decreased across E&W; from 216,178 in 2016–17, to 43,923 in 2017–18.58 Such emerging evidence suggests that RUI is effectively replacing bail without charge as it ‘removes all the pressures associated with a release on bail’ and provides the police with a free hand to investigate people.59 The development of this diversionary tactic is relevant to pre-charge disclosure. RUI increases the risk that material evidence perishes (such as CCTV/DNA/witness recollection), risking injustice to either side. Engaging with the police pre-charge to assist and encourage them in gathering this evidence is an important function of a defence lawyer; however, it is not remunerated. Instead, fixed fees are paid for police station attendance and advice. This is significant in light of the potential length of RUI, which is unlimited. For example, suspects released under investigation by the MPS in 2017/18 waited an average of 225 days for a conclusion to the case.60 The London Criminal Courts Solicitors’Association reported that in a sample of 109 RUI cases, that more than 69 had been ongoing for between 18 months and two years.61 With potentially long delays, the defence is put in the invidious position of having to conduct this work speculatively (that is, without knowing if there will be a charge and subsequent fee) in order to avoid prejudice to their clients. In addition, by building up a large bank of unresolved and unbilled casework, RUI is causing a significant cash flow crisis for defence firms already under severe financial pressure. This is in effect a hidden tax on defence lawyers, further compounding the aforementioned 56 College of Policing, ‘Pre-charge bail data,’ September 2017 available here: https://www.college. police.uk/News/College-news/Pages/precharge_bail_data.aspx [last accessed August 2020]. 57 The Law Society, Victims and Suspects Left in Limbo after Changes to Police Bail: New Research, 9 October 2019, available here: www.lawsociety.org.uk/news/press-releases/victims-suspects-inlimbo-after-changes-to-police-bail/ [last accessed August 2020]; Monidipa Fouzder, ‘Police figures confirm 193,000 suspects were “released under investigation,”’ The Law Society Gazette, 10 October 2019, www.lawgazette.co.uk/news/police-figures-confirm-193000-suspects-werereleased-under-investigation/5101742.article [last accessed August 2020]. 58 Ibid. 59 E. Cape, ‘Police bail: A right old mess’ (Centre for Criminal Justice Studies, 30 May 2017), available here: www.crimeandjustice.org.uk/resources/police-bail-right-old-mess [last accessed August 2020]. 60 See Home Office, Crime outcomes in England and Wales: Year ending March 2018, available here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/729127/crime-outcomes-hosb1018.pdf [last accessed April 2020]. 61 London Criminal Courts Solicitors’ Association, ‘Top findings for Released Under Investigation (RUI) Survey,’ May 2019, available here: www.lccsa.org.uk/wp-content/uploads/2019/06/ RUISURVEY-TOP-FINDINGS.pdf [last accessed April 2020].

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cuts and increasing risks to the sustainability of legal aid provision in E&W. For the majority of suspects. the drafting of the remuneration arrangements effectively result in no additional payments for pre-charge work. In terms of disclosure, it undoubtedly raises the risk that representatives will not have the time – and perhaps the inclination – to pursue pre-charge disclosure as vigorously.

Evidential advancements: the ‘explosion’ in digital evidence Given what has been described as the ‘digital explosion’62 in evidence available to investigations and trials, pre-charge disclosure has become a greater concern for defence lawyers and police officers because of issues of both volume and cost.63 For the latter, there is a particular impact on the pursuit of reasonable lines of enquiry, as illustrated in E.64 The defendant was accused of sexually assaulting his two stepsisters (S1 and S2); the police seized the phone of S1, but not S2, as she claimed not to have any messages on her device about the incident. It transpired S2 had in fact messaged her step-father, shortly after the alleged assaults. E successfully sought a stay of proceedings as an abuse of process on the grounds the police had breached their duty to seize and disclose, leading to a loss of material, thus preventing a fair trial. The prosecution appealed on the basis that the defence had wrongly concluded there was a duty to seize and examine S2’s phone, as this was not a reasonable line of enquiry and therefore no breach of duty. Alternatively, even if there was a breach, E was not prevented from receiving a fair trial. The Court concluded, notwithstanding the breach of duty, a stay was not appropriate, as a fair trial could have been possible with appropriate direction to the jury. The CACD has, on a number of occasions, dealt with matters related to precharge disclosure and the extent of the police’s duty to pursue reasonable lines of enquiry. Of particular relevance in the context is the availability of large amounts of digital forensic evidence data. In its judgment, the court strongly approved of several official forms of guidance in this area. For example, the CPS Guidelines on Communication Evidence were relied upon, which states that ‘[i]nvestigating officers are required to pursue all reasonable lines of inquiry, whether to exonerate or implicate suspects.’65 The court also endorsed the Attorney General’s Guidelines on Disclosure, which expanded on what ‘reasonable lines’ should include: What is ‘reasonable’ will depend on the context of the case. A fair investigation does not mean an endless investigation: investigators and disclosure

62 Judiciary of England and Wales, Speech by Gross LJ, ‘Disclosure–again: CBA disclosure event,’ June 2018, at para 36, available here: www.judiciary.uk/wp-content/uploads/2018/06/lj-grossdisclosure-speech-june18.pdf [last accessed April 2020]. 63 L.J. Gross, ‘Disclosure–again: CBA disclosure event,’ June 2018 at 33; House of Lords Science and Technology Select Committee, Forensic Science and the Criminal Justice System: A Blueprint for Change (HL Paper 333, 3rd Report of Session 2017–19, 01 May 2019) at 49. 64 [2018] EWCA Crim 2426. 65 Crown Prosecution Service, Disclosure–Guidelines on Communications Evidence (26 January 2018).

‘Something to work with’ 29 officers must give thought to defining, and thereby limiting, the scope of their investigations, seeking the guidance of the prosecutor where appropriate.66 Additionally, the court made reference to the CPS Guide to ‘Reasonable Lines of Enquiry’ and Communication Evidence,67 which recognise police discretion in deciding what to pursue: What represents a reasonable line of enquiry is an investigative matter for the police and whilst the prosecution will do what they can to assist in identifying potential further enquiries, that ought not to be taken by the police as definitive or exhaustive.68 Nevertheless, E clarified that ‘the decision is fact specific in each and every case.’69 As such, the modern-day problem for defence lawyers with pre-charge disclosure is choosing when to consider it, where to start and how far to go.70 For example, the defence must carefully weigh the benefits of seeking further exculpatory evidence, with the risks it will reveal the opposite. This may result, for example, from a defendant’s mistaken/faulty memory of his actions, or a mistaken/flawed understanding of what constitutes incriminatory conduct. Alongside this, the defence cannot necessarily instigate pursuit of a line of enquiry purely by providing an indication of relevant evidence. In Khalime Shah,71 confirmed in E, the court commented: [I]t was never the intention . . . of these provisions in some way that the defence could obtain a piece of information and then by sending it to the prosecution place upon them a duty to investigate matters, in the hope that in some speculative way, it might produce further information that would assist the defence case.72 As such, this draws attention to the difficulty for defence lawyers in approaching reasonable lines of enquiry pre-charge, whilst highlighting that ‘the court is always going to be very reluctant to intervene and suggest that an enquiry of some

66 Attorney General’s Office, Attorney General’s Guidelines on Disclosure–For Investigators, Prosecutors and Defence Practitioners (3 December 2013) at 17. 67 CPS, ‘Disclosure–A guide to ‘reasonable lines of enquiry’ and communications evidence,’ available here: www.cps.gov.uk/legal-guidance/disclosure-guide-reasonable-lines-enquiry-and-communications-evidence [last accessed August 2020]. 68 Crown Prosecution Service, A Guide to ‘Reasonable Lines of Enquiry’ and Communications Evidence (24 July 2018) at 19. 69 R v E [2018] EWCA Crim 2426 at 23. 70 Mary Aspinall-Miles, ‘The Fundamentals of Mobile Phone Evidence,’ Counsel Magazine, March 2019, available here: www.counselmagazine.co.uk/articles/r-v-e-and-the-great-disclosure-debate [last accessed August 2020]. 71 R v Khalime Shah [2002] EWCA Crim 1623. 72 Ibid. at 25, Kay LJ.

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kind should have been made.’73 This is affirmed in Boardman,74 which suggested that whilst the courts will highlight when defendants that have suffered prejudice through abject failures in the disclosure regime post-charge, they will not impose a duty on the police to investigate any matters raised by the defence under this concept. In any event, with payment and obligation considerations in mind, the defence would be minded to wait until the prosecution case is served so that disclosure enquiries fall within a payment scheme, and the Crown are obligated to do so. An additional layer of complexity is added to the issue of what constitutes a reasonable line of enquiry in light of privacy concerns. For example, civil liberties organisations have objected to the use of what they have termed ‘digital strip searches’75 which incorrectly suggests the defence regularly go on ‘fishing expeditions’ with regards to victim’s mobile phones. In contrast, the case law suggests that only ‘reasonable’ disclosure requests will be made and allowed, all of which are case- and fact-specific. As Sir Brian Leveson has pointed out: ‘[A]s recent developments have shown us, in trying to cope with the Pandora’s Box that is data management, the system comes up against the rights of complainants and witnesses: to what extent should their data be interrogated in the light of a “reasonable line of enquiry”?’76 With that in mind, the police face an uphill struggle in terms of what digital evidence they should focus on. In practice, cases are sent to the prosecution for a charging decision, and many are sent back for further lines of enquiry to be conducted, whether digital or not. As for digital evidence specifically, there is an increased chance that one line of enquiry leads to another. The courts are reluctant to intervene, and there appears to be no obligation on the prosecution to respond to requests from the defence; this may well change in light of the Attorney General’s new guidelines on disclosure and the prospective mechanism for pre-charge engagement. If the newly found criminal ‘digital’ justice system is to yield success from the pre-charge regime, the police will be required to take on a more pro-active approach to requests from the defence at a much earlier stage, so that the risk of a miscarriage of justice is reduced at the earliest possible opportunity. It is hoped that frontloading reasonable lines of enquiry will reduce the prospect of cases such as that of Liam Allan, whose trial could have been avoided pre-charge, had the relevant exculpatory evidence attracted the attention it rightly deserved. This will require an element of judicial oversight to balance the scales of justice, which could be feasibly tied up with the RUI regime given the overlap. In the near future, it is possible a payment mechanism for precharge engagement will be introduced following on from the Criminal Legal Aid

73 Ibid. at 24, Kay LJ. 74 R. v Boardman (David) [2015] EWCA Crim 175. 75 Big Brother Watch, ‘Digital Strip Searches: The police’s data investigations of victims’ (July 2019), available here: https://bigbrotherwatch.org.uk/wp-content/uploads/2019/07/Digital-Strip-SearchesFinal.pdf [last accessed August 2020]. 76 Sir Brian Leveson, Criminal Justice: The Past and The Future (The Slynn Memorial Lecture, 12 June 2019), available here: https://www.judiciary.uk/wp-content/uploads/2019/06/Sir-BrianLeveson-Slynn-Memorial-Lecture.pdf [last accessed August 2020].

‘Something to work with’ 31 Review,77 reflecting the regime recommended by the Attorney General’s review on disclosure.78

Conclusion Whilst case law and Code C outline the rights of the suspect and the obligations of the defence lawyer in some detail, they also emphasise that the obligations on the police with regards to pre-charge disclosure are limited. Disclosure must be conducted without ambiguity and technical language, and contain sufficient information so as to enable the suspect and the defence lawyer to understand relevant circumstances surrounding the investigation of the alleged offence and the suspect’s supposed role in it. Despite important adversarial safeguards, such as the privilege against self-incrimination and the burden and standard of proof, the balance of power at the investigative stage is tilted in favour of the State given the level of disclosure incumbent on the OIC. Limited pre-charge disclosure by the police may well result in advice from the defence lawyer to provide a no comment interview at this early stage. However, ultimately, the risk of adverse inferences remains a threat in situations where the police provide some disclosure, even if it is arguably inadequate. This needs to be considered by the suspect and their lawyer, who must be conscious that disclosure pre-interview will not only shape their advice but have significant implications should the matter proceed to trial. Alongside the looming shadow of adverse inferences, the modern age of austerity has restricted the ability of the police to fully investigate the evidence in a case – particularly one involving digital forensic evidence. This impacts on the ability of the suspect and lawyer to obtain (or demand) more extensive disclosure. These restrictions must not be allowed to undermine the importance of determined and zealous defence lawyers at the investigative stage, who can effectively utilise their thorough understanding of the issues related to disclosure for the benefit of not only their client but the pursuit of fair and accurate justice.

77 Ministry of Justice, Criminal Legal Aid Review: An Accelerated Package of Measures Amending The Criminal Legal Aid Fee Schemes (Consultation) (28 February 2020), available here: https://consult.justice.gov.uk/criminal-legal-aid/criminal-legal-aid-review/supporting_documents/ criminallegalaidconsultationdocument.pdf [last accessed August 2020). 78 Attorney General’s Office, Attorney General’s Guidelines on Disclosure (26 February 2020), https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/868617/AG_Guidelines_on_Disclosure_-_FINAL.pdf [last accessed August 2020].

3

Changing culture? Thinking differently about police and prosecution disclosure Dr Tom Smith*

Introduction Non-disclosure of exculpatory evidence (that is, evidence supportive of a suspect or defendant) is ‘a potent source of injustice.’1 Since disclosure seeks to ensure all relevant information is available to the appropriate parties (and ultimately a court), it arguably serves a higher public good: it promotes truth-seeking; enhances the accuracy of decision making by all parties and bolsters the legitimacy and reliability of the criminal justice system. For the Police, disclosure demonstrates ‘absolute impartial service to the law’2 and characterises the open-minded and inquiring ‘investigative mind-set’ described by Lord Justice Gross.3 However, the ‘disclosure problem’ is an old and persistent one, which has proven resistant to regulation and guidance.4 The theory proposed in this chapter is that a deeper, cultural issue sustains the problem: specifically, adversarial culture within policing. It argues that adversarial culture is part of the fabric of policing in E&W and has the scope to interfere with proper disclosure practice. This chapter will explore this hypothesis first by providing an overview of the ‘disclosure problem’ and the issue of culture; second, by examining the ‘conflicted role’ of the police within an adversarial criminal justice system; third, by conceptualising disclosure as an ethical ‘dilemma’, which officers are required to resolve in their day-to-day practice; fourth, by considering factors which may influence officer resolution of this dilemma; and finally, by discussing the importance of changing culture and how this might be approached. Before examining the disclosure problem (as this chapter will term it) and its relationship to police culture, it is important to provide context. Any debate about disclosure must be presaged by recognition of the unique type of work which

* Dr Tom Smith is a Senior Lecturer in Law at UWE, Bristol, [email protected]. 1 R v Judith Ward [1993] 1 WLR 619, 642. 2 Peel Principle 5, as stated in College of Policing, ‘Code of Ethics: Supporting Documents’ (July 2014), at 5. 3 L.J. Gross, ‘Review of disclosure in criminal proceedings’ (Judiciary of England and Wales, 2011) at 72, quoting the Association of Police Officers’ ‘Practice Advice on Core Investigative Doctrine.’ 4 Discussed in Chapter 5.

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policing involves, and therefore the context in which this problem exists. Policing demands that officers adopt highly visible and impactful roles in society, requiring the balancing of a range of dynamic and competing interests, whilst being subject to significant and consistent pressure from a variety of sources. There is the public expectation of the performance of law enforcement duties.5 Officers are affected by shifting policy priorities (dictated by public opinion, national politics, internal targets and KPIs).6 The police are exposed to constant external scrutiny and critique from the media,7 inspectorates8 and investigative bodies.9 Additionally, they must work within a challenging financial climate; a very topical issue is limited resources, not only post-austerity but in light of concerns regarding officer numbers and the rise in knife crime.10 The police must also, of course, undertake their duties in accordance with their various legal obligations, dependent to an extent on the powers they are choosing to exercise. Alongside these various pressures, it should be remembered that police work (particularly front-line or response service) involves daily, direct interaction with some of the most dangerous, problematic and vulnerable people in society. This job is, inevitably, physically and mentally stressful and emotive, and it involves personal risk. As such, this should be kept in mind when discussing the disclosure problem; policing places many responsibilities on officers and it must be remembered that they are both public servants and human beings.

The disclosure ‘problem’: what lies beneath? Explanations for the disclosure problem have varied over the years, but common factors cited as influencing the quality of disclosure practice include police officer knowledge, availability of resources and the ‘explosion’ in digital evidence 5 Particularly Peelian Principles 1–5 and 9 (see n3); also see, generally, the tenor and tone of L. Casey, ‘Engaging communities in fighting crime: A review by Louise Casey (Cabinet Office, 2008); and R. Muir, ‘Great expectations: What do the public want from the police?,’ The Police Foundation: www.police-foundation.org.uk/2016/09/great-expectations-what-do-the-public-want-from-thepolice/ [last accessed March 2020]. 6 See, for example, the shift in law and policy related to police stop-and-search powers; from 2013 to 2018, these powers were heavily criticised (a key supporter of reform and restriction being the Home Secretary, Theresa May). From 2018 onwards (particularly under the Johnson Government) the narrative espoused by politicians, police and parts of the media has shifted back towards a favourable attitude, with increased use of stop-and-search seen as key to preventing knife crime. 7 Crime and policing stories are a staple of news media, with the tone often critical. See for a recent example, BBC, ‘Crimes unreported as public lose faith in police,’ BBC News, 7 February 2020, available here: www.bbc.co.uk/news/uk-51408921 [last accessed March 2020]. 8 For the police, this is HM Inspectorate of Constabulary and Fire and Rescue Services (HMICFRS, formerly HMIC). 9 See the Independent Office for Police Conduct (IOPC, formerly the IPCC). 10 See, for example, Home Office, ‘National campaign to recruit 20,000 police officers launches today’ (HM Government website, 5 September 2019): www.gov.uk/government/news/nationalcampaign-to-recruit-20000-police-officers-launches-today (last accessed March 2020]; and J. Grierson, ‘Minister set aside extra £100m for police to tackle knife crime,’ The Guardian, 13 March 2019, available here: www.theguardian.com/uk-news/2019/mar/13/knife-crime-spring-statementpolice [last accessed March 2020].

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involved in criminal investigations.11 Whilst it is reasonable to say that, to some extent, all of these contribute, it can also be argued that since the CPIA 1996 created the modern disclosure regime (as discussed in Chapter 1), all of these factors have been subject to significant change. In terms of resources, police officer numbers and general funding of policing have both risen to a peak and subsequently declined.12 Legislative changes, and various forms of guidance and training, have been introduced to improve disclosure practice.13 The increase in digital evidence – particularly smartphone and social media data – is a relatively recent phenomenon.14 Yet the disclosure ‘problem’ has been a fixture throughout, with evidence of problems and criticism by academics,15 judiciary,16 media17 and lawyers prevalent from the late 1990s onwards.18 This chapter suggests that there is a deeper, consistent problem that has not been addressed: that is, an underlying culture in police management of the disclosure process. In 2017, HMCPSI/HMIC argued that there needed to be a ‘cultural shift’ in managing disclosure by both the police and CPS, stating: Only then will assurance be provided that the prosecution agencies are motivated in their desire for a fair trial, rather than one that focuses on the prosecution case and pays insufficient heed to potential evidence for the defence that lies within the unused material in their possession.19 In 2018, the Justice Committee noted the perception of several witnesses in its inquiry into disclosure which suggested there was ‘a culture within policing that 11 See Gross, n 4; Attorney General’s Office, ‘Review of the efficiency and effectiveness of disclosure in criminal proceedings’ (Attorney General’s Office, Cm 9735, November 2018); and House of Commons Justice Committee, ‘Disclosure of evidence in criminal cases’ (House of Commons, HC 859, 20 July 2018). 12 See House of Commons Home Affairs Committee, ‘Policing for the future’ (House of Commons, HC 515, 25 October 2018), at 13–14; and G. Allen and L. Audickas, ‘Police service strength’ (House of Commons Library, SN-00634, 4 March 2020). 13 See, for example, Part 5, Criminal Justice Act 2003; Attorney General’s Office, ‘Attorney general’s guidelines on disclosure for investigators, prosecutors and defence practitioners’ (Attorney General’s Office, December 2013); various parts of the Criminal Procedure Rules (hereafter, CrimPR), but particularly Part 15; Judiciary of England and Wales, ‘Judicial protocol on disclosure of unused material in criminal cases’ (Judiciary of England and Wales, December 2013); and Crown Prosecution Service, ‘Disclosure manual’ (Crown Prosecution Service, 14 December 2018). 14 Facebook was launched in 2004; Twitter in 2006; the iPhone and Android-based smart phones in 2007 and WhatsApp in 2009. 15 See J. Plotnikoff and R. Woolfson, ‘“A fair balance”? Evaluation of the operation of disclosure law (RDS Occasional Paper No. 76)’ (Home Office, 2001). 16 See Gross (n 4); H.H.J. Kinch QC and H. Riddle, ‘Magistrates’ court disclosure review’ (Judiciary of England and Wales, May 2014); B. Leveson, ‘Review of efficiency in criminal proceedings’ (Judiciary of England and Wales, January 2015). 17 See various examples in the media after the Liam Allan case in December 2017. 18 R. Horwell, ‘Mouncher investigation report’ (House of Commons, HC 292, July 2017). 19 HM Inspectorate of the Crown Prosecution Service (HMICPS), HM Inspectorate of Constabulary (HMIC), ‘Making it fair: A joint inspection of the disclosure of unused material in volume Crown Court cases’ (HMICPS/HMIC, July 2017), 3.

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encourages the pursuit of a conviction against a suspect, and does not give enough weight to the investigation of alternatives.’20 The Attorney General’s 2018 review of disclosure practice noted the ‘irreconcilable conflict at the heart of CPIA 1996,’ with some stakeholders arguing: It is unrealistic to expect investigators and prosecutors, who are working to secure convictions, to exercise due care in searching for and identifying material that might assist an acquittal.21 All of this implies that, in considering disclosure, some officers are too ‘prosecutionminded,’ placing excessive focus on securing convictions. The argument therefore is that whilst other factors clearly contribute to the disclosure problem, they do not necessarily explain its longevity; rather, an entrenched adversarial culture in policing affecting the management of disclosure has kept the issue alive. In the context of E&W criminal justice, adversarialism functions by encouraging competition between the police/prosecution and the defence in order to find ‘truth,’with the argument being that two competing perspectives allow a more fair and rounded conclusion regarding guilt.22 However, this rationale is dependent on the realisation of principles such as equality of arms, a full and fair investigation of the evidence and fair advocacy in court. An excessive focus on ‘winning’ and inequality between the opposing sides undermines the credibility of this model, since the competition is no longer on a level playing field. In such circumstances, the truth of the matter ultimately becomes a casualty of the game, with an impact on both victims of crime and innocent suspects.

The adversarial role of the police and the conflict of disclosure The concept of ‘sides’ is fundamental to adversarial theory. It is reasonable to suggest that, at least historically, policing is aligned with the ‘harmed’ (for example, victims of crime, the general public). This is most evident in ‘traditional’ front-line or response police work, which emphasises adversarial detection, prevention and prosecution of crime.23 As such, adversarialism is linked to several core objectives of policing.24 For some, the police only exist to ‘catch the villain.’25 This attitude is

20 21 22 23 24

Justice Committee (n 12), 29. Attorney General (n 12), 10. Ex Parte Lloyd [1822] Mont. 70. See Chapters 4 and 5 for more on this. See College of Policing (n 3); College of Policing, ‘The role of the police: Core planning principles’ (College of Policing, 11 September 2018), available here: www.app.college.police.uk/app-content/ operations/operational-planning/core-principles/ [last accessed March 2020]; and National Police Chiefs’ Council, ‘Policing vision 2025’ (National Police Chiefs’ Council), 4, available here: www. npcc.police.uk/documents/Policing%20Vision.pdf [last accessed March 2020]. 25 R. Sollund, ‘Tough cop-soft cop? The impact of motivations and experiences on police officers’ approaches to the public’ (2008) J of Scand. Studies in Crim. & Crime Prev. 9(2), 132.

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understandable in light of the dangerous and emotionally taxing work police officers are frequently required to undertake. It is, arguably, necessary to have a deep commitment to securing justice for those harmed. Without this adversarial sense of ‘mission,’ it would be challenging for individuals to do the required job effectively, efficiently and sustainably. Thus, the cultural norm – particularly within front-line policing – is to prioritise helping the harmed, not those who harm. Nonetheless, policing aims more broadly to serve the public good, and this is a concept which is multifaceted. It includes, but is not limited to, crime control; indeed, alongside detection and prosecution of guilty persons, policing should also be concerned with filtering out innocence at as early a stage of the process as possible.26 Police officers should be impartial, fair and objective officers of the law, first and foremost, and whilst the police service is primarily an adversarial institution which is undoubtedly prosecution-oriented, it also owes a wider duty to others (including suspects). As such, the police have a conflicted role in our adversarial system; as a result, they must simultaneously balance competing interests – for example, those of victims and suspects of crime. At times, they must achieve this balance on the basis of limited information, significant uncertainty, little time and high pressure. They must account for both the presumption of innocence and genuine allegations of criminality, two concepts which, at the very start of an investigation, effectively coexist. In short, balancing these interests is a fundamental professional challenge. This in-built normative conflict has relevance to disclosure practice. Disclosure is, in essence, a quasi-inquisitorial process; it requires those working within the criminal justice system to undertake neutral evaluation of evidence and information and supply it to the relevant party, with the ultimate aim being that all relevant material is placed before the arbiter (whether this be magistrates or a jury). In this sense, disclosure feeds into inquisitorial principles of truth-seeking and cooperative inquiry.27 This chapter thus argues that disclosure, as both a normative concept and legal procedure, arguably clashes with the adversarial nature of policing, which may not be fully recognised by the officers affected by it. In considering disclosure, officers may focus only on the assistance it provides to a suspect (whom they may believe to be guilty), rather than the wider benefits to accuracy and fairness of the process. Theoretically, adversarialism tends to be characterised as a zero-sum game; that is, if one side wins, the other side must lose. The adage that ‘if you show your hand, you may lose the game’ might be readily applied to the partisan sides within adversarial criminal justice processes. The notion of ‘sides’ encourages (and requires) partisan loyalty: that is, police and prosecution loyalty to the victimised and defence lawyer loyalty to the accused. However, this may, in practice, come at the expense of loyalty to facts and truth, a concept which

26 See H. Packer, ‘The courts, the police, and the rest of us’ (1966) J of Crim Law, Criminol & Pol Sci 57(3); and more broadly, H. Packer, The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968). 27 For a classic account of inquisitorialism, see M. Damaska, ‘Evidentiary barriers to conviction and two models of criminal procedure: A comparative study’ (1973) U. Pa. L.Rev. 121, 563.

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ultimately side-lines adversarial concepts of ‘losing,’ ‘winning,’ and ‘sides.’ In essence, disclosure requires loyalty to the abstract concept of truth-seeking, which not only contradicts the cultural norm of loyalty to a ‘side’ but is less relatable than loyalty to a flesh-and-blood person. This can create a deep-seated sense of conflict for those committed to such norms – particularly for officers who are close to or have direct responsibility for a criminal investigation (for example, response officers or the OIC). As a result, adversarial tribalism can override propriety and fealty to facts, accuracy and truth-seeking.

Resolving the ethical dilemma of disclosure If we accept the thesis that a cultural conflict exists, we should consider the impact this has on disclosure practice: in short, how officers might respond when faced (consciously or not) with this sort of ethical dilemma regarding disclosure. Like any form of cognitive dissonance, officers will want to resolve it; arguably, this will fall into one of two broad approaches. These are: engagement with or resistance to disclosure. Engagement with the disclosure process – in short, embracing it positively – might include providing relevant material that is available and/ or requested (as envisaged by the CPIA 1996 regime); doing so in a timely and accessible manner; and actively identifying and providing material that the defence should have on a continuous basis.28 In contrast, resistance to disclosure – that is, actively fighting or passively avoiding engagement – might include providing no disclosure or partial disclosure, even if there is or might be relevant material; delaying, staggering or ‘phasing’ access to information for tactical advantage;29 disengaging from the suspect and defence lawyer, thus preventing any cooperative disclosure process; and ignoring the possibility of additional unidentified material that could be disclosed (that is, not pursuing reasonable lines of inquiry).30 The route chosen by the responsible officer will clearly influence the future direction not only of the case (in terms of its completeness, fairness and accuracy) but also of the relationships between the police, the prosecution and the defence – relationships which significantly impact on the quality of disclosure practice. In resolving the disclosure dilemma – that is, choosing whether to engage or resist – a variety of factors could, consciously or not, influence an officer’s decision making. These include instinct; the need for ‘safety’; the avoidance of risk; and the influence of pressure (both internal and external). The adversarial cultural norm already discussed can shape how these factors impact on disclosure practice and, by extension, on the process and outcome of criminal proceedings.

28 This is clearly not everything; for example, sensitive or Public Immunity Interest (PII) materials. 29 E. Cape, ‘Transposing the EU directive on the right to information: A firecracker or a damp squib?’ (2015) Crim. LR 48; and also, D. Sukumar, J. Hodgson and K. Wade, ‘How the timing of police evidence disclosure impacts custodial legal advice’ (2016) Int. J. of E & P 201. 30 For discussion of this latter point, see Attorney General (n 12); and R v E [2018] EWCA 2426 (Crim).

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Instinct Because of the discretionary and interpretive nature of police work, officers are frequently required and encouraged to use their instincts. This is necessary, particularly when there is a lack of certainty, limited time or urgency, with a need for an officer to make a swift decision. Instinctive decision making can be derived from rules and formal training, but it also is shaped by cultural norms and learned behaviour (such as the underlying cultural traditions discussed previously); as ‘working rules’ developed through personal experience; wider knowledge of ‘on the street’ police work; or the influence of close colleagues and peers.31 The problem with this situation is that instinct may (unwittingly or not) override reasonable arguments for disclosure, leading to an unjustifiably resistant response from an officer. A concern is that experience, culture and working rules can lead officers to become case-hardened, perceiving most suspects to be suspicious or guilty and likely to evade or frustrate justice if they can. The adversarial instinct that develops is therefore based on a perceived need to maintain ‘balance’ in the system, which is also reflected in related concepts like noble cause corruption.32 It might be argued that suspects and their lawyers also ‘play games’ (for example, providing late or limited disclosure, or engaging in obstructive silence when interviewed);33 if this is the case, one might question whether the police should be berated for doing so. This is of course a classic ‘two wrongs make a right’ type of argument. Equally, this fairly narrow perspective means that some suspects (even if it is the minority) could be treated unfairly and face serious consequences – even if this is limited to time on bail or the ‘whiff’ of suspicion created by an investigation – because the majority are perceived as trying to play the system. If the criminal justice system and the police (as neutral investigators) are supposed to be seeking truth, we should question how well this approach serves that end. Any argument that adversarial behaviour maintains a form of balance lacks weight unless we can be sure that equality of arms truly exists in practice. Clearly, some suspects and their lawyers use excessive, illegitimate and disruptive tactics to avoid conviction;34 but there is little evidence to suggest this represents the majority.35 In fact, suspects (in practice) potentially face a number of significant

31 See M. Bacon, ‘Police culture and the new policing context,’ in J. Brown (Ed.), The Future of Policing (Abingdon: Routledge, 2014), 103. 32 J. Crank and M. Caldero, Police Ethics: The Corruption of Noble Cause (Abingdon, Routledge, 2000), 2. 33 See Chapters 1 and 2 for more on the prevailing narrative about the defence ‘playing’ the CJS in order to provide their client with a ‘sporting chance.’ 34 For example, see R v Farooqi [2013] EWCA Crim 1649. 35 We might point to long-standing evidence that most suspects do not exercise their right to silence or even their right to a lawyer at the police station. See, for example, T. Bucke and D. Brown, ‘In police custody: Police powers and suspects’ rights under the revised codes of practice’ (London: HMSO, 1997); L. Skinns, ‘“I’m a detainee: Get me out of here”’(2009) Brit J of Criminol 49(3); and V. Kemp, ‘“No time for a solicitor”: Implications for delays on the take-up of legal advice’ (2013) Crim LR (3).

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disadvantages.36 The need to maintain adversarial balance also appears somewhat outdated in the modern context of criminal justice, with the priority agenda having shifted towards promoting increased openness and cooperation between prosecution and defence.37 In this context, if one side ‘plays games’ whilst the other does not or perhaps more importantly cannot (perhaps due to lack of resources), any sense of balance is illusory. Nonetheless, adversarial instincts may unconsciously lead officers to an unjustified default resistance to disclosure. In cases involving a difficult suspect or an uncooperative lawyer, such instincts may be triggered or enhanced by a sense of ‘competition’ – which is effectively a form of adversarial reflex. The use of adversarial game-playing and tactics (for example, utilising ‘drip-feed’ disclosure as a tactic to gain compliance from a suspect or obtain information) are also well documented.38 Such an approach treats disclosure as an adversarial negotiation strategy rather than as an obligation directed at truthseeking. Ultimately, this is likely to lead to tit-for-tat game playing by suspects and lawyers, and eventually to a stalemate built primarily on distrust. By weaponising disclosure in this manner, it is easy to see how adversarial instincts can be instinctively engaged and outweigh neutral, objective assessment; and how, when in doubt or without time for conscious reflection, officers may feel obliged to rely on their ‘gut.’ Safety, risk and pressure Another potential influence is a group of interrelated factors affecting each other: the need for ‘safety,’ risk avoidance and pressure. Avoiding risk is acute for legal professionals generally, but the police are particularly affected by risk because of the impactful and often dangerous work they do. Indeed, the College of Policing’s Risk Principles (originally espoused by the Association of Chief Police Officers) identify taking risks as ‘a core professional requirement’ involving ‘judgement and balance.’39 Such risks are taken whilst exposed to high levels of scrutiny, criticism

36 For example, limited rights to information or evidence at the investigation stage (mainly at police discretion); the potential for adverse inferences to be drawn from silence; issues with legal advice (see n 34) and potential vulnerabilities such as mental or physical health issues, addiction or housing or financial difficulties, which are not always identified at these early stages – see National Appropriate Adult Network (NAAN), ‘There to help 2: Ensuring provision of appropriate adults for vulnerable adults detained or interviewed by police’ (NAAN, May 2019). 37 Primary examples would be forms of disclosure such as defence case statements and the duties imposed by the CPIA 1996 on the prosecution as well as the extensive case management duties incumbent on all parties under the Criminal Procedure Rules 2015. See Chapter 2. 38 See Cape (n 29); Hodgson (n 28); and V. Kemp, ‘Effective police station legal advice country report 2: England and Wales’ (University of Nottingham, April 2018), available here: http://eprints. nottingham.ac.uk/51145/1/Country%20Report%20England%20and%20Wales%20Final%20.pdf [last accessed March 2020]. 39 College of Policing, ‘Risk–risk principles’ (College of Policing, 10 September 2018), Principles 1 and 3, available here: www.app.college.police.uk/app-content/risk-2/risk/ [last accessed March 2020].

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and the various pressures mentioned earlier in this chapter. Indeed, any appetite for improving disclosure practice may be dulled for front-line officers in light of the many different obligations they need to fulfil in their modern role.40 This combination can create an environment that is very challenging for officers to work in, one defined by excessive risk aversion and in which effectiveness is undermined by fear of mistakes and blame. The highly visible role of police officers may create pressure to avoid evident mistakes; when one does occur (which it inevitably will), the inclination of an officer might be to hide it or downplay its significance. Ultimately, officers may fear that a mistake or misjudgement may be perceived as indicative of incompetence, negligence or even corruption – even if it was in fact unwitting, or an unconscious result of the prevailing culture and/or embedded instincts. In short, this is a systemic problem rather than one unique to a particular officer. As a result, officers might fear individual scapegoating and censure (when in fact the practice in question may be common), damage to their career safety or progression and exposure to both internal and external scrutiny and criticism. The mistake becomes personalised, and the officer (and others) may blame themselves as entirely and uniquely responsible, which does not solve the problem.41 In this environment, officers will likely find their work and responsibilities more stressful, will become more risk averse, will fear mistakes (even reasonable ones) and will be encouraged to conceal or de-emphasise errors. Unfortunately, the results of the mistake cannot be fixed, and the underlying causes of the initial mistake cannot be addressed.42 Evidence for this culture of distrust and blame was made apparent in the Home Affairs Committee report ‘Policing for the Future.’43 Policing witnesses were almost united in lamenting a risk-averse ‘culture of blame,’44 suggesting: ‘We are afraid that to deviate from tried and tested practices will lead to failure.’45 Another police witness compared policing to ‘[t]he Borg’ from Star Trek: everyone assimilates and no longer has their own thought process.46 Major problems therefore emerge; innovation in practice, changes to problematic behaviour and taking reasonable risks are all avoided. When in doubt, officers may revert to the safest option, that does not deviate from the norm, for fear of mistake and subsequent blame. Moreover, in trying to avoid mistakes, it is arguable that officers may be more likely to ask a colleague of similar status or with whom they have

40 See K. Choi, J.L. Lee and H. Shin, ‘“Jack of all trades and master of none,” is this a true reflection of today’s British police’ (2014) Psych & Behavioural Sciences 3(2). 41 See, for example, the implications of the Allan and Itiary cases for Detective Constable Mark Azariah (L. Deardon, ‘Met police detective in collapsed rape cases removed from investigations amid widening disclosure scandal,’ The Independent, 21st December 2017, available here: www.independent.co.uk/news/uk/crime/mark-azaria-met-police-detective-rape-cases-collapseinvestigations-removed-liam-allan-itiary-a8121996.html [last accessed March 2020]. 42 For example, miscarriages of justice cannot be corrected; see Chapter 6 for more on correction after conviction. 43 See Home Affairs Committee (n 13). 44 Ibid. 69. 45 Ibid. 71. 46 Ibid.

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a relationship of trust and confidence, and conversely are less to likely to consult the law or official guidance or someone further up the institutional structure.47 In some cases, this will be appropriate and the best way to proceed, but it also has the potential for reliance on the flawed ‘institutional’ or ‘legacy’ knowledge of peers and therefore may perpetuate bad practice.48 Fear of mistakes – and or perhaps more accurately, being caught – leads to reliance on this mechanism for resolving dilemmas, entrenching the problem. In this context, we might question why resistance to disclosure represents the ‘safe’ option, whilst engagement with it is ‘risky.’ Certain disclosure practices are likely to be endemic, representing the norm. Examples might include habitually only disclosing certain limited information, refusing disclosure or consistently scheduling potentially relevant materials as unused or sensitive.49 In contrast, engaging with disclosure might lead to consequences which, from a policing perspective, are perceived as negative (for example, undermining their case); or uncontrollable (officers are less able to regulate the flow of information once it has been disclosed). Indeed, defence lawyers might reasonably argue that they cannot question or challenge material they do not know about – and if an officer reveals information or evidence, a lawyer can do just that. As such, resistance may be safer in this regard. Limited disclosure is unlikely to be challenged by a suspect alone; a defence lawyer might – but this of course depends on the skill and motivation of the lawyer. Lawyers have limited power to require disclosure in the police station,50 and unused materials may not be examined any further by any party, for reasons of time and resources. There may also be issues related to disclosing sensitive or private material – such as phone or social media data – and the potential for negative consequences or criticism for decisions to share it.51 In summary, if unreasonable resistance to disclosure lacks meaningful negative consequences, and engaging with disclosure potentially exposes officers to more risk, it may be safer to follow the norm (or perceived norm) of resistance. 47 See Chapter 4 on ‘in-group solidarity’ and Chapter 5 generally on peer learning and influence and the problems officers experience in understanding ‘legalistic’ and official guidance. 48 For more on the concept of institutional knowledge or memory, see J. Fleming and R. Rhodes, ‘Can experience be evidence? Craft knowledge and evidence-based policing’ (2018) Policy & Politics 46(1); also see, K. Griffiths, K. Birdi, V. Alsina, A. Baban, P.S. Bayerl and F. Bisogni, ‘Knowledge sharing practices and issues in policing contexts: A systematic review of the literature’ (2016) Euro J of Policing Studies 3(3). 49 For more on poor scheduling, see HMICPS/HMIC (n 20), 11–14. 50 See PACE Code C. [11.5]; the basic common law requirements in R v DPP ex parte Lee [1999] 2 All ER 737 and R v Ara [2001] EWHC Admin 493; also see Sukumar et al., FN28. 51 For example, media coverage of police requests for phone and social media data from rape complainants for the purposes of investigating reasonable lines of enquiry (dubbed a ‘digital strip search’); see O. Bowcott, ‘Police demands for access to rape victims’ phones “unlawful,”’ The Guardian, 23 July 2019, available here: www.theguardian.com/law/2019/jul/23/police-demandsfor-access-to-victims-phones-unlawful [last accessed March 2020]; and Big Brother Watch, ‘Digital strip searches: the police’s data investigations of victims,’ Big Brother Watch, July 2019, available here: https://bigbrotherwatch.org.uk/wp-content/uploads/2019/07/Digital-Strip-SearchesFinal.pdf [last accessed March 2020].

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Conclusion: changing culture It should be noted that this chapter does not seek to demonise adversarialism per se or suggest that resisting disclosure is inherently incorrect. This would neither be reasonable nor reflect the law or its objectives, which focus on relevancy and fairness. Indeed, there will be plenty of cases where suspects or defendants seek disclosure of tangential material, merely seeking to unjustifiably derail a legitimate prosecution.52 Rather, this chapter (and others in this collection) suggests that the goal should be a ‘thinking’ approach to disclosure where officers judge, case by case, the relevance of material for disclosure (in the same way that judgment should be made of reasonable lines of inquiry).53 This requires a self-aware and objective consideration of disclosure, underpinned by a culture that encourages officers to step back from adversarial instincts and consider the correct course of action according to the legislative objectives. Some suggestions have been made that the default approach should be to disclose, unless there are good reasons not to. For example, in H, the court described the disclosure of all exculpatory evidence as the ‘golden rule.’54 More recently, the Attorney General recommended that a ‘rebuttable presumption be created through the CPIA 1996 Code of Practice that certain types or categories of unused material meet the disclosure test.’55 This would mean certain materials would automatically be considered disclosable, with ‘the focus for the investigator and the prosecutor shift[ing] . . . to whether there is good reason that those items do not satisfy the disclosure test.’56 In short, this would require some rationalisation of a decision to resist disclosure for some evidence (with suggested items including crime reports, existing investigator notes, draft witness statements, CCTV footage and previous convictions of witnesses).57 These suggestions inherently imply officers should adopt a considered, less instinctively adversarial approach to limiting disclosure. The prevailing conclusion regarding the disclosure problem is that the regime under the CPIA 1996 is sound in principle but ineffective in practice.58 Therefore,

52 For example, see for example R (on the application of DPP) v Caernarfon Crown Court [2019] EWHC 767 (Admin). 53 An approach generally endorsed by the courts (see R v E (n 29)); the Government (see Attorney General’s Office (n 12); the CPS (see ‘Disclosure: A guide to “reasonable lines of enquiry” and communications evidence,’ CPS, 24 July 2018, available here: www.cps.gov.uk/legal-guidance/ disclosure-guide-reasonable-lines-enquiry-and-communications-evidence [last accessed March 2020]; and various CJS agencies (see National Police Chiefs’ Council, College of Policing, CPS, ‘National Disclosure Improvement Plan (NDIP)’ (January 2018). 54 R v H and C [2004] 2 AC 134. 55 Attorney General’s Office (n 12), 16. 56 Ibid. 16–17. 57 Ibid. 17. This recommendation, amongst others, is now the subject of a consultation (Attorney General’s Office, ‘Consultation on revisions to the attorney general’s guidelines on disclosure and the CPIA code of practice’ (Attorney General’s Office, February 2020). 58 Attorney General’s Office (n 12), 11; Justice Committee (n 12), 34.

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the current accepted approach to the disclosure problem is to improve the functionality of current mechanisms rather than replace or overhaul them. There have been repeated attempts to improve disclosure practice over the quarter century since the passage of the CPIA 1996 – yet the same problems re-emerge. Arguably, this is (in part) due to a failure to fully address the underlying issue of culture – particularly adversarial culture. Without doing so, sustainable change is jeopardised. Fair investigation requires a less instinctively adversarial mindset, characterised by the open-minded, inquiring, objective approach of an investigator who seeks truth rather than results or even victories. Disclosure needs to be regarded as an investigative mechanism for reaching truth rather than an adversarial challenge to the success of a prosecution. It should be prioritised as a necessary part of a good investigation from the very start rather than treated as a mandatory ‘bolt-on’ to be considered later or (if possible) not at all. However, such change needs more than money, training and guidance; work must be done to change the cultural norm from the bottom up, through integration into recruit training, proactive learning and engaged practice by officers. To do this, it is necessary to improve levels of trust and support within policing and to encourage some degree of partnership between the police and the defence in identifying disclosable material. Cultural change of this nature cannot, arguably, be achieved unless officers are engaged in conscious learning, heightened awareness and considered reflection in an institutional environment which breeds confidence and provides support. To simply lecture, guide and train will likely fall short.59 Officers dealing with disclosure need to be more conscious of the cultural context in which they work and the expectation, imposed by themselves and others, to be ‘adversarial’ crime stoppers and nothing more. They need to be alive to the normative conflict that may arise when considering disclosure of unfavourable evidence or information; more conscious reflection on the instinctive nature of decision making and what drives it should be encouraged. In this sense, disclosure can be treated like similar issues within any institution – an obvious example being unconscious bias – where awareness enables challenge of habits and entrenched norms and ultimately allows changes in behaviour. In the context of disclosure, the ultimate decision in a given case may not change, but the officer (and others) will now fully understand and be able to rationalise why they are doing what they do. At the same time, it is important that police officers are able to exercise discretion, without fear of unjust censure, and that they feel supported in learning from their own mistakes and those of others. They should also be left to consider disclosure in a given case without unhelpful internal and external pressures. Indeed, officers need institutional support, including continuing professional development led by both their peers and superiors. It might be argued that a good template

59 See Chapter 5 for a more extensive discussion of this.

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for this is the ‘learn from failure’ model practised by the airline industry;60 in its evidence to the Home Affairs Committee, the MPS argued that ‘officers making genuine mistakes need to be supported to learn – not fear misconduct.’61 Clearly, individual accountability is important to an extent – but this must be used fairly to support and improve officers’ practice. Fear of becoming an example of poor practice is counterproductive, and encourages deceit and avoidance. For too long, ‘disclosure’ has arguably been regarded as a dirty word for policing – a problem which will not go away and with which others criticise the professional practice or their peers. This needs to change. This chapter has argued that beneath the problem of disclosure lies a cultural issue: that of excessive adversarial behaviour, undermining an objective approach to disclosure. Adversarialism – whilst a necessary part of policing – is not an absolute to always be applied; taken to the extreme, it simply frustrates justice, something which applies to all parties in the criminal justice process. Changing the cultural norm will take time, learning, support and leadership – but the benefits for all concerned could be substantial, with the reduced likelihood of miscarriages of justice undoubtedly foremost among them.

60 M. Syed, ‘Our politicians could learn a great deal from the aviation industry,’ The Independent, 23 September 2015, available here: www.independent.co.uk/voices/comment/our-politicians-couldlearn-a-great-deal-from-the-aviation-industry-10514735.html [last accessed March 2020]. 61 Home Affairs Committee (n 13), 70.

4

‘Hidden in plain sight’ The influence of culture on the police approach to disclosure Dave Houchin* and Dr Nick Caveney**

Introduction The concept of ‘policing by consent’ is underpinned by fundamental values such as independence, neutrality and the absence of prejudice or bias and independence.1 Indeed, Peelian Principles highlight the importance of ‘not pandering to public opinion, but constantly demonstrating absolutely impartial service to law.’2 These principles, which reflect broader democratic values, have endured over time and are enshrined in a formal code of police ethical values.3 In this context, it is an important but challenging exercise to understand how policing could fail so deeply in not taking disclosure seriously enough. Yet these are precisely the findings outlined by the Mouncher enquiry.4 This chapter will be approached from a sociological perspective and specifically investigate the conflict emanating from the relationship between police culture and disclosure. It will posit that the issues identified in the Mouncher enquiry are but one manifestation of a wider propensity to conservatism, cognitive homogeneity and inertia to change. Far from being at odds with societal expectations, these cultural tenets are positioned as reflective of wider societal attitudes which are both adversarial and exclusionary, reinforced by common media and political stereotyping. To demonstrate this argument, the failure to recognise Child Sexual Exploitation (CSE) is examined as an example of a blind spot in the policing psyche, resultant from such cognitive narrowness. It will be contended that the policing response to CSE encompassed procedural change but did not properly engage value and cultural change. The National Disclosure Improvement Plan (NDIP)5 is considered in similar terms, with cognitive homogeneity positioned as * Superintendent and Senior Leadership Trainer, College of Policing. ** Visiting Fellow in Criminology, University of Northampton; Superintendent, Bedfordshire Police. 1 Home Office, ‘Definition of policing by consent,’ GOV.UK, 10 December 2012, available here: www.gov.uk/government/publications/policing-by-consent/definition-of-policing-by-consent [last accessed December 2019]. 2 Ibid. 3 College of Policing, Code of Ethics (Ryton-on-Dunsmore: College of Policing Ltd, 2014). 4 R. Horwell, “Mouncher investigation report” (HM Stationery Office [HC 292], 2017). 5 National Police Chiefs’ Council, College of Policing and Crown Prosecution Service, ‘National Disclosure Improvement Plan: Phase Two – Embedding Culture Change and Continuous Improvement’ (2018), available here: www.npcc.police.uk/Publication/NDIP%202.pdf [last accessed December 2019].

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part of a cultural narrative for these occurrences. If the thinking and behaviour that led to under-prioritisation of disclosure identified in Mouncher and subsequent cases are truly cultural, then causal processes need to be understood and, more importantly, addressed if the response is to extend beyond dealing with the latest symptomatic manifestation and future systemic failures avoided. In understanding and addressing police culture, self-determination theory is positioned as an underlying motivational mechanism which, if engaged, would help to elucidate the cultural paradigm and therefore enable meaningful change. The chapter concludes by considering how police leaders might respond to these challenges, how cognitive diversity might be supported, and, ultimately, how failings such as those identified in Mouncher require a different approach to police culture and an informed conversation with the general public as to the policing role.

Police disclosure failings: but one manifestation of police culture? The police are responsible for many functions within the criminal justice system, including the investigation of criminal acts, during which the disclosure of material to the defence is of crucial importance in maintaining democratic balance and the rule of law. The role of policing within society is espoused as impartial and independent investigators and evidence gatherers, built on principles of justice for all. However, Richard Horwell asserted that ‘the culture that was eventually harmful in the Mouncher investigation was a culture in which disclosure was not taken, in my view, seriously.’6 He evidences this with reference to poor decision making, inadequate training, leadership and governance but stops short of speculating about underlying causes. There is a strong argument for accepting that disclosure is a manifestation of the negative elements of wider police culture. The joint HMCPSI and HMIC report ‘Making it Fair’ specifically refers to culture pertaining to acceptance of the failings of the disclosure process and low appetite for addressing its root problems, with 78% of police cases reviewed only achieving a fair or poor rating.7 This confirmed that the issue was well known and understood but not addressed: Non-compliance with the disclosure process is not new and has been common knowledge amongst those engaged within the criminal justice system for many years and it is difficult to justify why progress has not previously been made in volume crime cases. Until the police and CPS take their responsibilities in dealing with disclosure in volume cases more seriously, no improvement will result and the likelihood of a fair trial is jeopardised.8 6 Supra n.236. 7 HMCPSI and HMIC, ‘Making it fair: A joint inspection of the disclosure of unused material in volume Crown Court cases’ (2017), available here: www.justiceinspectorates.gov.uk/cjji/wp-content/ uploads/sites/2/2017/07/CJJI_DSC_thm_July17_rpt.pdf [last accessed April 2020]. 8 Ibid.

‘Hidden in plain sight’ 47 The House of Commons Justice Committee report on Disclosure of Evidence in Criminal Cases9 dedicates an entire chapter to leadership, oversight and culture. More recently, the Attorney General, was scathing in his review of disclosure: ‘For too long, disclosure has been seen as an administrative add on rather than fundamental pillar of our justice system. This ends now.’10 Whilst disclosure is but one component of the criminal justice process, the link between police culture and disclosure failings is both well known and well documented. If the values and behaviour that led to under-prioritisation of disclosure in Mouncher and subsequent cases are truly cultural, then there is a clear imperative to understand this relationship fully in order that it be addressed properly.

Police culture, and a propensity to inertia The thesis of an identifiable police culture rests on seminal work from the 1960s to 1990s from authors such as Rubinstein,11 Banton12 and Manning.13 What emanates from these classical theorists is an essentially negative set of cultural stereotypes centred on the work of street officers, both uniformed and detective, and how these officers both view society and collectively identify with one another. Seizing upon these themes, more contemporary writers, notably Reiner14 and Loftus,15 find partial support for many of the classical themes of their forebears. A prima facie relationship between failings in disclosure and classical police cultural norms appears evident. Essentially, these can be summarised as follows: Conservatism – Theorists16 identify a narrow moral and political outlook prevalent within policing, manifesting itself in a dislike for others and

9 House of Commons Justice Committee, ‘Disclosure of evidence in criminal cases’ (HM Stationery Office [(HC 859], 2018). 10 ‘Creating a “zero tolerance” culture for disclosure failings across the criminal justice system,’ GOV.UK, 15 November 2018, available here: https://assets.publishing.service.gov.uk/government/ uploads/system/uploads/attachment_data/file/756436/Attorney_General_s_Disclosure_Review.pdf [last accessed December 2019]. 11 J. Rubinstein, City Police (New York: Ballantine, 1974). 12 M. Banton, The Policeman in the Community (London: Tavistock Publications, 1964). 13 P.K. Manning, Police Work: The Social Organization of Policing (Long Grove: Waveland Press, 1997). 14 R. Reiner, The Politics of the Police, 4th Edition (Oxford: Oxford University Press, 2010), R. Reiner, ‘Revisiting the classics: Three seminal founders of the study of policing: M. Banton, J. Skolnick and E. Bittner” (2015) Policing and Society 25, 308 and R. Reiner, ‘Is police culture cultural?’ (2016) Policing: A Journal of Policy and Practice 11. 15 B. Loftus, Police Culture in a Changing World (Oxford: Oxford University Press, 2009), B. Loftus, “Police occupational culture: Classic themes, altered times’ (2010) 20 Policing and Society 1, B. Loftus, ‘Revisiting the classics: S. Holdaway (1983) inside the British police: A force at work. Oxford: Basil Blackwell.” (2016) Policing and Society 26, 713. 16 See generally, R. Reiner, The Politics of the Police, 4th Edition (Oxford: Oxford University Press, 2010), J.H. Skolnick, ‘Enduring issues of police culture and demographics’ (2008) Policing and Society 18, 35.

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Dave Houchin and Dr Nick Caveney minority groups, including racism as a recurrent17 theme. For the ultimate gatekeepers of disclosure material, such prevalent biases, if present, signpost important potential gaps in the justice system. Mission-Action-Pessimism-Cynicism – Reiner most famously postulates a cyclical mismatch between officers’love of excitement, routinely juxtaposed with a mundane bureaucratic existence, descending to psychological pessimism and ultimately a cynical world view.18 Such descent into cynicism about the wider criminal justice system and its inability to convict and suitably punish defendants with an associated presumption of guilt is often noted by commentators.19 Whilst assertions as to the behavioural manifestations of such cynicism are beyond the scope of this chapter, this raises the potential for associated cynicism towards the disclosure process. In-group solidarity – Officers are observed to stick together, to ‘have one another’s back’ in the face of public hostility.20 This leads to an insular perspective and the tendency to conceal indiscretions.21 Whilst the operational utility of such solidarity may be clear, the juxtaposition with Blackstone’s Ratio and values of impartiality and independence could not be starker. Espoused systemic intolerance, supported by seemingly robust procedures to encourage confidential reporting of unethical, unacceptable, unprofessional or illegal behaviour, has been established for many years. However, only 57% of officers trust that this confidentiality would be respected, and a third did not agree that supervisors or managers encourage such challenge.22 Adversarialism – The work of Charman23 refers to symbolic classic characterisations of policing such as ‘the thin blue line’ and ‘defenders of freedom.’ Such a mindset contributes to legitimising and fostering an adversarial identity, which may cause officers to potentially perceive activities of benefit to the suspect as distasteful. Hough24 identifies how

17 See W. MacPherson, ‘The Stephen Lawrence inquiry’ (1999), available here: https://assets. publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/277111/4262. pdf [last accessed January 2020], Michael Rowe, Policing, Race and Racism (Willan, 2004) and Anna Souhami, ‘Institutional racism and police reform: An empirical critique’ (2012) Policing and Society 24, 1. 18 R. Reiner, The Politics of the Police, 4th Edition (Oxford: Oxford University Press, 2010). 19 N. Caveney, ‘The material preconditions of engagement in the police’ (ProfDoc, 2015). 20 A. Myhill and B. Bradford, ‘Overcoming cop culture? Organizational justice and police officers’ attitudes toward the public’ (2013) Policing: An International Journal 36, 338. 21 J.K. Cochran and M.L. Bromley, ‘The myth(?) of the police sub-culture’ (2003) Policing: An International Journal of Police Strategies & Management 26, 88 and L. Westmarland and M. Rowe, ‘Police ethics and integrity: Can a new code overturn the blue code?’ (2018) Policing and Society 28, 854. 22 HMIC, “Integrity matters” (2015). 23 S. Charman, Police Socialisation, Identity and Culture: Becoming Blue (Cham, Switzerland: Palgrave Macmillan, 2017). 24 M. Hough, ‘Procedural justice and professional policing in times of austerity’ (2012) Criminology & Criminal Justice 13, 181.

‘Hidden in plain sight’ 49 officers internalise an adversarial approach to the justice system, whilst more traditionally this is recognised as the crime-fighter25 identity. Both versions serve not to reinforce a neutral impartiality but a weighted, biased and adversarial approach to investigation and prosecution, and of cultural nuances as described by Horwell.26 Not only do these manifestations of police culture clash, in themselves, with the espoused values of ethical and lawful adherence to the disclosure process but they serve to reinforce and elongate their own existence – in short, they are selfperpetuating cultural norms. Campeau27 identifies a stubborn cultural inertia within policing organisations reinforced by higher-ranking officers via an interweaving of formal, informal, internal and external factors. A conservative culture predisposed to applying procedural remedies to values-related issues runs the risk of engaging at too superficial a level. The scale of influencing such entrenched self-identities in the police service as a means of driving values-based change should not be underestimated. By means of example, the ‘Direct Entry’ schemes introduced new thinking and innovation into the Service. Winsor28 was clear not to set targets but offered an expectation that a sixth of all superintendents should be Direct Entry to provide sufficient critical mass to make a meaningful difference. In 2016/17, the scheme sought to recruit 43 Inspectors and Superintendents; yet the recruitment process yielded slightly over half of this target.29 This equates to approximately 33 recruits per year for E&W. Actual numbers entering the scheme since 2015 are a fraction of that and dwindling from a peak of 9 in 2014 to under 5 for both 2018 and 2019 with no intake planned for 2020.30 Reasons why the majority of chief constables are not engaging with the scheme are unclear, but it may reflect the sort of senior resistance articulated by Campeau and how procedural solutions to values challenges are unlikely to be successful independent of broader long-term sustainable development.

Cognitive homogeneity Culture is variously described, but in essence is a propensity to share a set of values, ‘an interconnected set of assumptions.’31 Whilst the existence of a monolithic

25 R. Reiner, The Politics of the Police, 4th Edition (Oxford: Oxford University Press, 2010). 26 Supra n. 236 and for more discussion on adversarial culture, see Chapters 1 and 3. 27 H. Campeau, ‘Institutional myths and generational boundaries: Cultural inertia in the police organisation’ (2017) Policing and Society 29, 69. 28 T.P. Winsor, ‘Independent review of police officer and staff remuneration and conditions’ (HM Stationery Office, 2012). 29 National Police Chiefs Council, Recruitment and Retention Survey Summary of Key Findings (January 2018) at p. 48–49. 30 College of Policing Flexible Entry Team to Dave Houchin, ‘DE Supt numbers’ (April 1, 2020). 31 E.H. Schein and P. Schein, Organizational Culture and Leadership, 5th Edition (Wiley, 2017) p. 203.

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police culture is hotly debated,32 the cultural tendencies as described here do suggest a degree of cognitive homogeneity and closed-mindedness to ideas, opinions and groups outside of a formal elite. Alongside disclosure, the policing response to CSE illustrates this dynamic. CSE victims are often difficult to engage and frequently viewed as troublemakers by police and other professionals, which impacts on agency responses to largescale abuse.33 The review into South Yorkshire Police’s handling of CSE, alludes to senior officers not taking the issue seriously enough, suggesting that underresourcing and inadequate responses from senior managers was a result of a lack of professional curiosity and greater focus on other, government led, performance priorities.34 Recurring themes identified in relation to CSE – such as the issue being hidden in plain sight, a reactive response when major systemic failures and judgemental attitudes contributing to how activity was prioritised are identified – are remarkably familiar when considering disclosure. Arguably the genesis of the police CSE crisis was an inability to think differently and to perceive the problem from an alternative perspective, namely, that of the victims. Although the scale and resources committed to resolve the issue have been substantial, the actual solutions were relatively rudimentary and included training, awareness raising, proportionate resourcing, prioritisation and appropriate performance measures. There is little evidence of seeking to understand and address the attitudes that allowed the situation of wholesale abuse to be largely ignored. Winsor35 highlighted a need to introduce new thinking to achieve cultural change. This need formed much of his rationale for recommending direct entry to senior ranks based, in part, on the political suggestion that police leadership culture was narrow and closed. Similarly, the College of Policing36 recognised the need to change culture and attract diverse thinking from a broader range of sources, and identified good practice whereby some police leadership teams actively engaged with other agencies to challenge thinking and preconceptions. Whilst there is some rhetorical response from the Service which suggests, at least, a surface-level interest in cognitive diversity within policing,37 there is also a deep-seated cultural

32 N. Caveney, ‘Police reform, austerity and “cop culture”: Time to change the record?’ (2019) Policing and Society 1 and M. van Hulst, ‘Storytelling at the police station: The canteen culture revisited’ (2013) British Journal of Criminology 53, 624. 33 NSPCC, ‘Child sexual exploitation: Learning from case reviews’ (2013), available here: https:// learning.nspcc.org.uk/media/1331/learning-from-case-reviews_child-sexual-exploitation.pdf [last accessed November 2019]. 34 J. Drew, ‘Drew review: An independent review of South Yorkshire police’s handling of child sexual exploitation’ (2016). 35 T.P. Winsor, ‘Independent review of police officer and staff remuneration and conditions’ (HM Stationery Office, 2012). 36 College of Policing, ‘Leadership review’ (College of Policing Ltd, 2015). 37 M. Syed, Black Box Thinking: The Surprising Truth About Success (London: John Murray Publishers, 2015) temporarily became a favoured countercultural staple amongst policing circles, with presentations to the NPCC, (‘Chief Constables’ Council Minutes,’ 2016) and Police Superintendents’ Association, (‘Previous conferences,’ 2018), available here: www.policesupers.com/events/

‘Hidden in plain sight’ 51 inertia which acts in opposition. CSE can be observed as a blind spot in the policing psyche based on a cognitive homogeneity, and in drawing a link between police culture and disclosure, Horwell recognised this same narrowness in thinking.

Micro and macro cultures: a mandate from the people? Whilst police culture is an organisational phenomenon, it does not exist in a societal vacuum, both in terms of what the public expect and need from its police service. Schein articulates how occupational culture nests within wider macro and national cultures.38 This builds on Hofstede’s39 research, which positions culture as a layered concept encompassing strata across national, regional, gender, generation, social class and organisational levels. If Peel’s famous 1829 maxim that ‘the police are the people and people are the police’40 is valid, then it follows that any manifestation of less desirable components of police culture are likely to reflect wider societal attitudes. Arguably societal values are shaped by a media which reinforces an adversarial perception of the justice system. Cultural texts and practices, including television, help to establish discursive fields,41 shape both bodies and minds and involve relations of power. Identifying these subtexts and introducing them into conscious thought allows disparity to be challenged, although discursive fields can be particularly difficult to identify. HMIC-sponsored research into police integrity discusses how noble cause corruption (a propensity to bend rules and evade bureaucracy for seemingly honourable outcomes) is commonly referred to in literature as the ‘Dirty Harry’ problem.42 This link to an iconic and heroic crime fighter exemplifies a recurring theme. We must question not only how societal views are formed, but also the very construct of the common understanding of society and any exclusionary bias. Sir Ian Blair referred to Sir Richard Mayne’s43 (1829) speech, articulating how ‘the prevention of crime and the preservation of

38 39 40 41

42 43

annual-conference/speakers/ [last accessed April 2020]. It is debatable whether the promotion of Syed’s ideas by both the NPCC and PSA had genuine substance or represented ‘spin.’ Indeed, the sequel (M. Syed, Rebel Ideas: The Power of Diverse Thinking [London: John Murray, 2019]) has yet to become such a firm favourite. E.H. Schein and P. Schein, Organizational Culture and Leadership, 5th Edition (Hoboken: Wiley, 2017). G.H. Hofstede, G. Jan Hofstede and M. Minkov, Cultures and Organizations: Software of the Mind : Intercultural Cooperation and Its Importance for Survival, 3rd Edition (New York: McGraw-Hill, 2010). Home Office, ‘Definition of policing by consent,’ GOV.UK, 10 December 2012, available here: www.gov.uk/government/publications/policing-by-consent/definition-of-policing-by-consent [last accessed 31 December 2019]. A discursive field is defined as ‘competing ways of giving meaning to the world and of organizing social institutions and processes.’ For further reading, see C. Weedon, Identity and Culture: [Narratives of Difference and Belonging] (Maidenhead: Open University Press, 2004) and C. Weedon, Feminist Practice and Poststructuralist Theory (Oxford: Blackwell Pub, 1987) p. 34. T. Newburn, ‘Literature review – police integrity and corruption’ (HMIC, 2015). Sir Richard Mayne was one of the first Metropolitan Police Commissioners (1829–1868).

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public tranquillity were the primary objectives of the police.44 He argued that this was anachronistic and grounded in the police’s role being determined as protecting the ‘better off’ from the ‘dangerous classes.’ The police are routinely depicted as highly effective, heroic crime solvers with clear delineation between offender and victim.45 As crude as some people comprehend this portrayal to be, it does provide a window into how a simplistic societal ethos might create or at least reinforce an adversarial mission to catch and convict. Schein highlights how persistent first-generation cultures, such as those established in Sir Robert Peel’s earliest Metropolitan Police, can be.46 If correct, the enduring mindset of a simple dichotomy between good and evil, reinforced along exclusionary lines, is an attitude which is reflective of wider society. The National Policing Improvement Agency (NPIA) has articulated the need for a more holistic approach to procedural justice, recognising the overlap between criminality and victimisation; yet binary distinctions between the two seem to pervade.47 This supports wider evidence of a societal perception of the police as protectors of victims, rather than guardians of an impartial procedural justice system. The police operate within a wider society which forms its perceptions based on distorted common media portrayals which reinforce an outmoded and adversarial perception of justice. Further, attitudes of social exclusion serve to mask vulnerability and impose artificial and unhelpful dichotomous labels of offender and victim which further exclude those most needy of police assistance. Ensuring impartiality of procedural justice within a society which in sections supports a more biased and conservative outlook inevitably requires policing to confront not just a set of procedural changes but a fundamental discourse with the public about what it really wants and what values it wants its police service to truly defend.

Behavioural or culture change? Policing in E&W demonstrated clear and pragmatic commitment to ‘fixing’ procedural issues in response to CSE failings. This flexibility is admirable, but it arguably misses the more fundamental and deep-seated issues of value and cultural change. There is a clear distinction to be made between behaviour change and culture change. This is not always understood by an organisation such as the police, with its preference for structural and procedural transformations which have little impact on culture.48 In their contribution to the Home Office Front Line Policing

44 I. Blair, ‘What kind of police service do we want?’ (The Richard Dimbleby Lecture, 2005). 45 R. Reiner, ‘Policing and the media,’ in Handbook of Policing (Willan, 2003). 46 E.H. Schein, ‘The role of the founder in creating organizational culture’ (1983) Organizational Dynamics, 12, 13. 47 A. Myhill and P. Quinton, ‘It’s a fair cop? Police legitimacy, public cooperation, and crime reduction’ (National Policing Improvement Agency, 2011). 48 P. Brough, S. Chataway and A. Biggs, ‘“You don’t want people knowing you’re a copper!” A contemporary assessment of police organisational culture’ (2016) International Journal of Police Science & Management, 18, 28.

‘Hidden in plain sight’ 53 Review, Graham and others49 warn of the organisational problems associated with not gaining a sufficient understanding of cultural issues and of adopting short-term solutions. Arguably the police failing in respect of CSE was related to a cognitive homogeneity. Historical approaches of categorising crime as discrete incidents perpetrated by an offender against a victim does not reflect the complexity of abusive relationships or those being repeatedly targeted or discriminated against by whole sections of the community for being different or vulnerable. Including CSE victims in the cohort of deserving people who can now expect a proportionate response in reaction to national failings may incrementally professionalise the service, but it does not necessarily address the underlying cultural biases that appear to be so stubbornly enduring. Those most frequently suffering harm being the least likely to seek a police response was a blind spot in the policing psyche. Moreover, the lack of recognition that such behaviour resulted from bias and fundamental elements of identity suggests that the problems relating to CSE investigations are not isolated examples. This superficial approach to understanding the impact of culture is also reflected in the National Disclosure Improvement Plan. References to the ‘Embedding Culture Change’ theme of the subtitle for phase two50 are supplemented with narrative that describes process improvement and awareness raising. This is not to question the practical necessity of the process plans in their own right but to question the extent to which those plans engage the values, attitudes and motivations of those involved in implementing the change. Understanding a range of underlying psychological mechanisms and their organisational effects would greatly enhance the study and understanding of police culture. Ryan and Deci’s51 self-determination theory identifies three innate psychological needs (competence, autonomy and relatedness) which enhance or undermine intrinsic motivation, self-regulation and well-being. Intrinsic motivation, self-regulation and well-being are, of course, not just essential organisational objectives in their own right but are the psychological and cultural levers through which effective organisational change may be achieved. Failing to understand and apply these principles endangers programmes and increases likelihood of reactance to and antagonism with the organisational change being pursued.52 Whilst the creation of additional processes is essential, ultimately the motivation, control and attention of those empowered to deliver 49 L. Graham and others, ‘Research into workplace factors, well-being, attitudes and behaviour in policing, summary of evidence and insights presented for the front line review of policing’ (Durham University, 2019). 50 National Police Chiefs’ Council, College of Policing and Crown Prosecution Service, ‘National disclosure improvement plan: Phase two – embedding culture change and continuous improvement’ (2018) available here: www.npcc.police.uk/Publication/NDIP%202.pdf [last accessed December 2019]. 51 R.M. Ryan and E.L. Deci, ‘Self-determination theory and the facilitation of intrinsic motivation, social development, and well-being.’ (2000) American Psychologist, 55, 68. 52 M. Vansteenkiste and R. M Ryan, ‘On psychological growth and vulnerability: Basic psychological need satisfaction and need frustration as a unifying principle.’ (2013) Journal of Psychotherapy Integration, 23, 263.

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those processes and procedures is of vastly greater importance.53 In this context, failings in disclosure are but one manifestation of policing’s inability to engage in this wider cultural debate. As Loftus neatly describes, the enduring nature of many facets of traditional police culture reflects wider societal divisions which ‘inhibit the extent to which meaningful police change can occur.’54 In essence, the required effort to bring about effective change in the police service is multipronged. It requires understanding and attention to the values, identities and cultures of the policing organisation and crucially to the relationship and conversations policing has with a polarised and exclusionary society. Such conversations are mediated by a media and political elite which serve to reinforce outmoded models of adversarialism and social division, which inhibits change.

Part of the solution or the problem? The challenge for police leadership The police service does not have a monopoly on the struggle to adapt to the findings of independent research; indeed, this inflexibility is prevalent in organisational leadership generally.55 However, when police-specific issues – such as institutional conservatism and a distorted sense of mission – are the issues which need to be addressed, this inability to change may be more acute. Skogan outlines that police reform is particularly difficult and often fails due to resistance to change at all levels.56 Motivation may differ between ranks and roles, but a general lack of trust, risk aversion and low perceptions of psychological safety appear to permeate leadership. There is additional mistrust in police leadership to deliver effective change.57 The challenge presented by engaging in deeper understanding and cultural development is akin to culturally managing an organisation.58 Such an approach necessitates a shift towards explicitly building cultural awareness into planning organisational change. If leaders identify the activity or behaviour that 53 Other potential psychological mechanisms linked to police culture include employee engagement (William A. Kahn, ‘Psychological conditions of personal engagement and disengagement at work’ (1990) Academy of Management Journal, 33, 692.), perceived organisational support (S. Armeli and others, ‘Perceived organizational support and police performance: The moderating influence of socioemotional needs.’ (1998) Journal of Applied Psychology, 83, 288.), servant leadership (R.C. Liden and others, ‘Servant leadership and serving culture: Influence on individual and unit performance’ (2014) Academy of Management Journal, 57, 1434.) and moral disengagement (C. Moore and others, ‘Why employees do bad things: Moral disengagement and unethical organizational behavior’ (2012) Personnel Psychology, 65, 1.) 54 B. Loftus, Police Culture in a Changing World (Oxford: Oxford University Press, 2009) p. 200. 55 D. Nicolini and others, ‘Through the eyes of others: Using developmental peer reviews to promote reflection and change in organizations’ (2011) Journal of Organizational Change Management, 24, 211. 56 W.G. Skogan, ‘Why reforms fail’ (2008) Policing and Society, 18, 23. 57 P. Villiers, ‘Philosophy, doctrine and leadership: Some core beliefs’ in Robert Adlam and Peter Villiers (Eds.), Police Leadership in the Twenty First Century (London: Waterside Press, 2003). 58 M. Hatch and A.L. Cunliffe, Organization Theory: Modern, Symbolic, and Postmodern Perspectives, 3rd Edition (Oxford: Oxford University Press, 2013).

‘Hidden in plain sight’ 55 they want to change, they must then consider the cultural ‘enablers’ and ‘inhibitors’ to such change – cultural factors which help and hold back change, respectively. In seeking to enhance the police attitude and approach to disclosure, pre-existing cultural enablers include proven history of implementing procedural improvement, training, and governance in response to identified need. Natural inhibitors involve conservatism and propensity to identify and implement straightforward solutions to complex or even wicked problems.59 Reflection and objectivity will be required to balance the two elements and truly understand the required leadership behaviour and activity. This last task may be problematic. Cockcroft60 asserts: Numerous academic commentators have drawn attention to the prevalence of transformational leadership strategies and rhetoric within law enforcement circles . . . it soon becomes apparent that such sentiments might make more sense as rhetorical aspiration rather than an empirical example of cause and effect. Cockcroft’s perception that police leaders have an oversimplified view of police culture may account for disparity between the research and current pace of change. There are positive signs that police leadership is increasingly incorporating evidence-based practice; however, this appears to be the preserve of operational practice.61 The potential for evidence-based practice to be focused on cultural development is at risk if the emphasis on evidence-based crime control remains prevalent.62 The litany of problems identified in the Mouncher review and inveterate errors in other cases may have similar drivers; whether this is accepted or not, the specific cultural contribution identified in Mouncher must be recognised if systemic improvement of disclosure management is to extend beyond the superficial and process driven. The establishment of the Police Education Qualification Framework (PEQF) introduces consistency and a distinct ethical dimension.63 When combined with the 20,000 officers uplift announcement,64 this presents an opportunity to create a critical mass of people who do not conform to police identity

59 K. Grint, ‘Problems, problems, problems: The social construction of “Leadership”’ (2005) Human Relations, 58, 1467. 60 T. Cockcroft, ‘Police culture and transformational leadership: Outlining the contours of a troubled relationship’ (2014) Policing, 8, 7. 61 G. Hunter, T. May and M. Hough, ‘Are the police embracing evidence-informed practice? A view from England and Wales’ (2018) Policing and Society, 29, 251. 62 G. Thomas, ‘Research on policing: Insights from the literature’ (2014) The Police Journal: Theory, Practice and Principles, 87, 5. 63 College of Policing, ‘Policing education qualifications framework’ (College of Policing, 2019), available here: www.college.police.uk/What-we-do/Learning/Policing-Education-QualificationsFramework/Pages/Policing-Education-Qualifications-Framework.aspx [last accessed December 2019]. 64 Home Office, ‘Home office announces first wave of 20,000 police officer uplift,’ GOV.UK, 9 October 2019, available here: www.gov.uk/government/news/home-office-announces-first-waveof-20000-police-officer-uplift [last accessed December 2019].

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stereotypes and to professionalise the service. However, as Cox and Kirby65 warn, police culture may be so strong that higher education alone is unlikely to deliver culture change, and solely relying on a structural change to fix a cultural issue exhibits the same deficiencies of approach as are being highlighted here. In the context of disclosure practice, the ultimate challenge for police leadership is for it to escape the bounds of its own cultural parameters. As Syed recounts, the power of echo chambers to reinforce and curtail our thinking is huge.66 Arguably, in order to escape the traits of police culture which could hamper meaningful change to disclosure practice, police leaders need to step outside of their traditional environments to be able to perceive and understand the very walls which surround them.

Conclusion Inertia to cultural change appears to be heavily influenced by organisational identity, underpinned by societal expectations and perceptions of the police service’s role. This paralysis constrains societal and organisational progression towards a less polarised environment. It also inhibits genuinely impartial and less biased approaches to investigation, perpetuating an over-simplistic, dichotomous categorisation of victims and offenders, thereby marginalising the most vulnerable. In terms of disclosure, which inherently requires consideration of perspectives of ‘the other side,’ this is a significant problem. There is almost an inevitability that police culture has evolved to adopt an adversarial approach to crime investigation that represents a wider societal view. The service needs to acknowledge and confront the hindering elements of such a police culture in the context of these wider social factors in order to influence wider change, but most particularly in the area of practice considered in this book. If we are to properly address the underlying cultural causes that led to the failures reflected on in the Mouncher Review and anticipate future challenges, the service needs to recognise that behaviour change does not necessarily validate culture change. Engaging in purely process, training and procedural reform in response to a review will merely address the symptoms of a wider, deeper causal issue. It is unlikely to deliver long-term sustainable identity transformation. This, therefore, creates the potential for the re-emergence of such problems in the future, a pattern which has developed over the last two decades. Police culture may be changing, but progress is slow, and most research emphasises cultural inertia. There is a necessity to invest greater attention to cultural understanding within the police service and to reflect on underlying explanatory mechanisms (such as self-determination theory) which help to define the motivational influences most liable to achieve long-term value change. The police service is unusual in that it has access to so much organisation-specific, robust academic

65 C. Cox and S. Kirby, ‘Can higher education reduce the negative consequences of police occupational culture amongst new recruits?’ (2018) Policing: An International Journal, 41, 550. 66 M. Syed, Rebel Ideas: The Power of Diverse Thinking (London: John Murray, 2019).

‘Hidden in plain sight’ 57 research relating to its culture. Most of the evidence-based findings, however, currently have little impact and are barely even acknowledged. Further work is required to understand the prevalence of an adversarial approach to policing and the implications of this for core functions such as disclosure. New discussions are required that begin to properly explore how evidence-based practice can be applied to understanding and developing police culture to deliver sustainable change in crucial areas such as this. Increasing cognitive diversity is an important step which may enable police leaders to move more easily between the ‘dance floor and the balcony’67 in order to properly perceive and therefore properly address the culture of which they are an integral part. Police leadership needs to become far more introspective if it is to overcome tendencies for conservatism and ultimately shape police culture and redefine police identity. The enduring negative elements of police culture, which undermine procedural justice and adherence to the legal requirements incumbent on police officers, warrant as much attention from police leaders as the interest they generate for academics. Otherwise, the reactive cycle cannot be broken and no proactive transformation can be achieved in any problematic area of practice, disclosure included.

67 R.A. Heifetz, A. Grashow and M. Linsky, The Practice of Adaptive Leadership: Tools and Tactics for Changing Your Organization and the World (Boston, MA: Harvard Business Press, 2009).

5

The search for new solutions to the disclosure problem Behavioural and empirical perspectives Fiona McLean* and Libby Potten**

Introduction The disclosure ‘problem’ discussed in this book has long drawn the interest and scrutiny of various stakeholders in the criminal justice system. Across the various chapters of this collection, different perspectives have been offered as to what the nature of the problem is and how it might be tackled. This chapter seeks to provide insight into the approaches of the police in attempting to address this issue by providing a summary of the contributing factors and underlying influences which have driven them. It will critically examine the work that has been done previously and discuss the reasons why disclosure is seen as a perennial or ‘wicked’ problem in policing terms, characterised by a 20-year history of criminal justice failings. This chapter broadly considers whether interventions deployed since 2017 have had an effect on improving the practice of disclosure and whether we are closer to making meaningful progress with a problem that has remained live for two decades. Finally, it will outline an alternative approach, using early findings from ongoing empirical research to understand the subtleties of the problem in more depth. It will explore the benefits of undertaking a thorough diagnosis of the problem before embarking on the search for solutions and look at the implications of taking a more holistic approach with a longer delivery timetable.

The disclosure problem: a ‘symptom’ of wider issues? While disclosure failings are often presented as a single independent malfunction in the criminal justice process, poor disclosure is, in our opinion, an ‘outcome’ problem: that is, it is the product of many other processes which precede it. It is therefore the symptom of the problem and not the cause. At the police investigation stage, disclosure is effective when a number of separate components are successfully delivered: primarily, a high quality investigation and the building of a case file. This chapter will argue that poor investigations will result in disclosure

* Evidence Advisor (Crime & Criminal Justice), College of Policing. ** Policing Standards Manager (Criminal Justice), College of Policing.

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failings and that any response needs to address investigative practice more widely, not just the process of ‘disclosure’ itself. In 2017, the College of Policing undertook research with the aim of identifying the recurring ‘perennial challenges’;1 that is, areas in policing where action was needed to drive improvement for the public across a range of contexts rather than for a particular crime type or operational area of policing. The research identified ten recurring areas where improvement was required, all of which can be considered to require a system-wide solution. One of the areas identified was ‘evidence and investigation,’ a core component of which is disclosure. Issues with investigations and disclosure are generally considered to be more pronounced in volume crime investigations.2 A recent HMCPSI review3 suggested that complex cases, such as homicide or terrorism, will be dealt with by specialist police teams and CPS units with the resources and experience to ensure that disclosure is dealt with effectively; in contrast, less complex volume crime is more likely to be dealt with by inexperienced and under-resourced front-line officers who have less familiarity with producing a prosecution case file. The nature of E&W policing is changing, and officers are spending less and less of their time responding to and investigating crime.4 Instead, they are spending more time deployed to deal with social and welfare issues, such as dealing with mental health crises because of a decline in service provision by other organisations.5 For response officers, the volume of demand on the police can result in an overriding pressure to move on to the next call and respond to the next person in need of real-time assistance.6 Changing demand, combined with reduced resourcing, has resulted in many forces moving to a model of investigation that requires officers to be more omnicompetent.7 When resources were less constrained (particularly pre-austerity), many forces operated a model where, following the initial investigation at the scene by the response officer, the vast majority of cases would be handed over either to a specialist investigation unit or to one that was dedicated to building the case file. Many forces have now disbanded such units and moved to a model in which the attending officer retains the case, builds the file and deals with the

1 College of Policing, ‘Perennial challenges in policing’ (2017, unpublished). 2 There are various definitions of volume crime see ACPO (2009) Practice Advice on the Management of Priority and Volume Crime (The Volume Crime Management Model) (Second Edition), available here: www.polfed.org/media/13796/pfew_policy_-_volume_crime_-_march_2017_v2.pdf [last accessed August 2020]. 3 HMCPSI, ‘Disclosure of unused material in the Crown Court,’ January 2020, available here: www. justiceinspectorates.gov.uk/hmcpsi/wp-content/uploads/sites/3/2020/01/Disclosure-of-unusedmaterial-in-the-crown-court-January-2020.pdf [last accessed August 2020]. 4 Home Office, Front Line Review: workshops with police officers and police staff, a summary report (2019), available here: https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/815254/flr-workshops-with-police-and-staff-summary-chapter.pdf [last accessed August 2020]. 5 Ibid. 6 Ibid. 7 Ibid.

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process end-to-end for all lower-level volume crime. In forces which operate such a model, serious and complex cases are still transferred to specialist teams after the initial response and investigation. Nonetheless, the front-line officer’s initial response will still have an important impact on the outcome of any subsequent investigation. Whether or not they proceed to take complete responsibility for the investigation, front-line officers (usually from the response team) are the first to attend at a crime scene and conduct the most important preliminary tasks in any investigation. Research suggests that the quality of initial crime reports is a factor that contributes to investigative outcomes.8 Notwithstanding this fact, less and less of front-line officers’ work ends in prosecution (currently approximately 8% of crimes proceed to the court stage,9 compared to 17.2% in the year ending March 2014).10 As such, front-line officers are becoming responsible for a wider range of initial investigations for cases which do not necessarily progress. As a result, the skills developed through practical learning – such as the building of a case file – quickly dissipate because it is simply not required to use them in practice.

Current responses to disclosure: the National Disclosure Improvement Plan The primary response from policing and the CPS to the recent disclosure failings, which culminated in late 2017, was the National Disclosure Improvement Plan (NDIP).11 Published in January 2018 by the CoP, NPCC and the CPS, NDIP represented a joint action plan and shared commitment to create a sustainable change to the way disclosure is tackled. NDIP sought to address both the very practical issues that would result in improved disclosure as well as affect the change in mindset that Richard Horwell advocated was necessary in the Mouncher Review.12 To support this (on behalf of policing), there was a complete review of the police curriculum in relation to disclosure and new eLearning developed, with over 100,000 officers and staff completing an online package via the College’s web-based platform.13 A network of disclosure champions was created in forces to provide specialist

8 M. Gill, J. Hart, K. Livingstone and J. Stevens, ‘The crime allocation system: Police investigations into burglary and auto crime’ (1996, Police Research Series Paper 16, London: Home Office). 9 Office for National Statistics (ONS), ‘Crime outcomes in England and Wales 2018 to 2019’ (2019), available here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/ attachment_data/file/817769/crime-outcomes-hosb1219.pdf [last accessed August 2020]. 10 ONS, ‘Crime outcomes in England and Wales 2013 to 2014’ (2014), available here: www.gov.uk/ government/statistics/crime-outcomes-in-england-and-wales-2013-to-2014 [last accessed August 2020]. 11 CPS, ‘The National Disclosure Improvement Plan’ (2017), available here: www.cps.gov.uk/ publication/national-disclosure-improvement-plan [last accessed August 2020]. 12 R. Horwell, ‘Mouncher Investigation Report’ (2017), available here: www.gov.uk/government/ publications/mouncher-investigation-report [last accessed August 2020]. 13 Figures as of August 2019. College of Policing, ‘More than 100,000 in policing have completed College training on disclosure,’ 27 August 2019, available here: www.college.police.uk/News/ College-news/Pages/Updates-disclosure-training-figures-August-2019.aspx [last accessed August 2020].

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support and a number of events were held to raise the profile of the issue, providing further learning for both senior officers and disclosure champions in order to enhance leadership in this space. Getting the swift, joint agreement of three pivotal organisations to act on the identified issue was clearly no simple task; yet NDIP was successful in doing so, demonstrating cohesive leadership and a genuine commitment to reform from the outset. Much of the initial national response has inevitably been focused on the presenting symptoms of the problem rather than the underlying causes, involving more training, guidance and forms, which we will observe later in this chapter tend to be a default response of policing to problems of this nature. Invariably in crisis situations, criminal justice partners are in a difficult position; there is an expectation that they do something to address the problem ‘now,’ but many of the underlying issues which drive such problems are complicated. As such, understanding what actions will have the biggest positive impact can take time. At the time of writing, NDIP was two years old. With many of the actions identified in the first phase having been completed, it is now in its second phase and the challenge faced by the organisations involved is to achieve substantial and sustained change. In January 2020, HMCPSI assessed the extent of progress on the improvements outlined under NDIP, and appraised the police and CPS of their performance in this context.14 Its report points to some improvements in terms of the appropriate provision of either unused material or adequate reporting about material at the charging stage, with an increase from 58.2% to 78.0% in the most recent sample.15 However, they also found that the relevant police forms were only completed fully in 20.9% of the cases in the live trial file sample, with the most common error being the omission of items which should have been listed.16 In addition, the report also found that in over 80% of cases the CPS failed to feedback to the police any failings with their dealings with unused material at charge.17 As such, the report concluded that ‘the culture of defeated acceptance is yet to be broken.’18

Why do we look to the same solutions? This chapter will suggest, within policing especially, that the commonly deployed responses to problems are overwhelmingly more training, guidance and forms. The reason for this may, in part, relate to how problems come to light. For example, criminal justice partners, such as those involved in NDIP, had been working on

14 15 16 17 18

HMCPSI (n 3). Ibid. 10. Ibid. 26. Ibid. 47. HMCPSI, ‘HMCPSI: Disclosure of unused material in the crown court (Summary),’ January 2020, available here: www.justiceinspectorates.gov.uk/hmcpsi/hmcpsi-disclosure-of-unused-material-inthe-crown-court/ [last accessed August 2020].

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disclosure for some time before the Allan case shone a spotlight on the issue;19 its advent turned, in effect, a long-standing problem into an immediate crisis.20 As such, it is arguable that, at that moment in time, the issue of disclosure was no more of a crisis than it had been in the preceding years.21 However, in response to pressure from the media, commentators and politicians,22 affected organisations often feel compelled to demonstrate responsiveness by taking action quickly. This means they do not have adequate time to explore the problem fully and to identify whether there are alternative solutions that could bring sustained change.

Why an alternative approach is required Whilst the delivery of new training to such a large number of officers is, in itself, an achievement, many commentators have highlighted the importance of culture and mindset to the problem of disclosure.23 Indeed, NDIP suggested that it was essential that disclosure was dealt with using ‘a thinking approach throughout’;24 notwithstanding this sentiment, what this term should mean to front-line officers or how they achieve it was not articulated. Additional training aimed at such officers can, on its own, only go so far in changing well-developed cultural norms and behaviours. In order to develop interventions that achieve this, there is a need to unpick what these terms mean in this context and understand their drivers. A number of concepts and issues are embraced by such phrases; for example, Chapter 3 outlined how the adversarial nature of the criminal justice system is a defining factor in disclosure and something that may fundamentally skew the thinking of the police and prosecution. In 2006, Quirk suggested that ‘the police occupy an anomalous position in the criminal justice process. They are accorded an inquisitorial, investigative role in an adversarial system, yet they continue to be perceived, by both themselves and the public, as agents of the prosecution.’25 Others have suggested that police officers may be susceptible to confirmation bias and selectivity in considering evidence.26 Whilst it is accepted that there is not ‘one’ police culture, there is some agreement that there are a number of core elements within what is considered the

19 BBC News, ‘Student Liam Allan “betrayed” after rape trial collapse,’ 15 December 2017, available here: www.bbc.co.uk/news/uk-england-london-42366629 [last accessed August 2020]. Various, ‘Liam Allan and Isaac Itiary trial collapses should lead to much-needed reform,’ The Guardian, 22 December 2017, available here: www.theguardian.com/law/2017/dec/22/liam-allan-and-isaacitiary-trial-collapses-should-lead-to-much-needed-reform [last accessed August 2020]. 20 Ibid. 21 See Chapter 3 for more on the various examinations of disclosure preceding the Allan case. 22 See n 20; and T. Smith, ‘The “near miss” of Liam Allan: critical problems in police disclosure, investigation culture and the resourcing of criminal justice’ (2018) Crim LR (9). 23 For example, Horwell (n 13); HMCPSI (n 3) ibid.; and Chapters 3 and 4 of this book. 24 CPS (n 12), 2. 25 H. Quirk, ‘The significance of culture in criminal procedure reform: Why the revised disclosure scheme cannot work’ (2006) Int J of Ev & Proof, 10(1), 48. 26 Smith (n 23).

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dominant culture in policing – for example, ‘street cop culture.’27 These elements include an exaggerated sense of mission, the need for activity, work that affords status (that is, which is fast paced, crime-oriented and exciting) and work which is far removed from careful, exploratory, process-heavy, paper-based activity.28 Training and guidance are not developed and delivered in a vacuum; other factors influence the impact they can have on the overall change being sought – for example, environment, conditions, leadership and resources. In 2018, Smith identified an emerging narrative that suggested failings in police disclosure were the result of reduced budgets and resources across the criminal justice system (especially for the police), and compounded by ‘[t]he increased evidential opportunities presented by electronic and digital communication and burgeoning social media.’29 The aforementioned HMCPSI review also recognised the role of reduced resources within the CPS in disclosure failings.30

How could we look at the problem differently? Evidence from the academic field of behavioural science brings into sharp focus the limitations of typical responses by policing to problems like disclosure. It can be used to help us to see how different components of the same problem relate, and therefore reveal that a proposed solution will likely involve a number of connected interventions to achieve change, particularly behavioural or cultural change. In this context, we will be looking at the behaviour change wheel (see Figure 5.1), developed by Michie et al. following a systematic literature review which identified 19 existing behaviour change frameworks.31 The most effective elements of each model comprise the wheel, at the heart of which are three core components; capability, opportunity and motivation. The wheel shows us how capability, opportunity and motivation work together to create behaviours. The wheel allows the categorisation of the drivers behind problems, suggesting potential interventions that are likely to have the greatest impact. In order to understand what type of intervention is likely to achieve this, it is therefore necessary to spend more time in diagnosis of a problem, thus acquiring deeper understanding of its drivers. This behaviour change model suggests that any response to a problem should be bespoke to the issue but should also be customisable to allow for variations at a micro (team) level and macro level within an organisation. Police forces in E&W currently employ just over 200,000 people,32 working 27 See B. Loftus, ‘Police occupational culture: classic themes, altered times’ (2010) Policing and Society, 20(1). Also see Chapter 4. 28 See R. Reiner, The Politics of the Police (4th Ed.) (Oxford: Oxford University Press, 2010). 29 Smith (n 23), 727. 30 HMCPSI (n 3), 7. 31 S. Michie, M. Van Stralen and R. West, ‘The behaviour change wheel a new method of characterising and designing behaviour change interventions’ (2011) Implementation Science 42(6). 32 Home Office, ‘Police workforce England and Wales March 2019 (2nd Ed.)’ (2019), available here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/831726/police-workforce-mar19-hosb1119.pdf [last accessed August 2020].

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Figure 5.1 Behaviour change wheel – the COM-B model Source: (Michie et al. [2011])

for 43 police forces. Within each force are different departments and teams split across various geographic locations, each with potentially unique behaviours and attitudes. Studies of policing culture have found variations across ranks and units and between forces,33 meaning it is likely that there is no ‘one size fits all’ solution to any problem, including disclosure. This presents one of the key challenges for nationally driven solutions; the behaviour change model may prove beneficial in modifying such solutions for local application. As many national responses take little account of the likely variation in practice at the micro level of policing, it is little wonder that when, for example, a national form is introduced to encourage 33 Loftus (n 28).

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officers to approach their work differently, one tends to find that the form is not completed as required.34 This is then followed with published guidance on how to correctly complete the form, so as to standardise the response across different forces. Yet this perpetuates a cycle of overlaying more process and guidance on systems that are already compromised by variation. An analysis of the interventions created to improve police disclosure practice shows that the majority of those currently deployed are targeted at ‘capability.’ This suggests an assumption that officers do not understand how to ‘do’ disclosure, leading to the conclusion that more training and forms to further systematise the process are necessary. The ‘thinking approach’35 suggested by NDIP sits in direct opposition to systematising the process further. It promotes the careful consideration of decisions around disclosure rather than dealing with them in a routinised manner. Yet there has been little consideration of the environments within which investigators/ responders are trying to make such decisions and complete relevant forms and whether they are conducive to fulfilling the goal of ‘getting it right first time.’36 In telling officers to ‘think’ and use their discretion, we engage them as individuals with natural variations in personality, motivation and values exhibited by all human beings. Individuals do not necessarily interpret things in the same way, nor draw the same conclusions based on the same set of information, so it is challenging to ensure procedural fairness is achieved. The behaviour change wheel reveals that the message promoted to officers in recent years has not been sufficiently comprehensive. Officers have been provided with learning opportunities and procedural tools, but there has not been consideration of their opportunity – both physical (that is, time and resources) and social (in light of pervading culture) – to do what they have been asked to do. Nor has there been consideration of their motivation for ‘doing it’; that is, their levels of ownership and responsibility for investigations; their professional identities and their performance drivers, such as what their force and the public are telling them is most important.

A possible new approach: understanding the problem in greater detail The COM-B model requires a far more detailed understanding of the underlying issues and behaviours driving the problem. The authors, in applying this model to the problem of disclosure, began to develop a greater understanding by reviewing existing relevant research literature, inquiries and inspections. The resulting issues were categorised according to the behaviour change COM-B framework with a

34 The HMCPSI review recently found that ‘Whilst the police almost always used the correct forms, overall they were only completed fully in 20.9% of the cases in the live trial file sample’ (HMCPSI (n 3), 10). 35 CPS (n 12). 36 See B. Leveson, ‘Review of efficiency in criminal proceedings’ (Judiciary of England and Wales, 2015); R v R [2015] EWCA Crim 1941; and more generally, DPP v Petrie [2015] EWHC 48 (Admin).

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number of issues identified under each of the categories (capability, opportunity and motivation) that may be driving ineffective disclosure practice (see Table 5.1). It also led us to conclude that the key problem with disclosure, at least in part, is down to the initial investigation and the lines of enquiry developed at the outset of a case. Table 5.1 Scoping the problem: summary of issues identified from existing reports and research37 Capability

Opportunity

Motivation

• Lack of understanding of the need to record unused material/ what to record/ what is sensitive material/ variable application of the relevancy test and how to record it • Lack of understanding of disclosure by supervisors • Lack of confidence of officers and supervisors in investigations • Lack of confidence in collecting and using evidence from social media, text messages and digital equipment • Lack of understanding by the judiciary of the implications and feasibility of demanding large/full downloads of data • lack of understanding of the iterative nature of the process and the need to revisit decisions • Increasing complexity of crime being dealt with by non-specialist investigators

• Difficulties dealing with the volume of digital evidence, • Poor communication with CPS – lack of support for police • Lack of resources, meaning disclosure schedules left until later in the process • Increased demand and reduced resources reducing available time for completing investigative tasks • A prosecution biased culture – police performance culture values prosecution • Problems with electronic case management system (CMS) • Police culture that values action over desk work • Late provision of defence statements

• A prosecution-biased culture/CJS as an adversarial system • Officers can become invested with victim and with getting victim justice • Officers do not see themselves as investigators • Disclosure seen as a bureaucratic process rather than integral to the investigation • Lack of importance given to disclosure at strategic level • False impression that the exercise is more difficult than it should be

37 HMICFRS, ‘Peel spotlight report: A system under pressure’ (2019), available here: www.justice inspectorates.gov.uk/hmicfrs/wp-content/uploads/peel-spotlight-report-a-system-under-pressure. pdf [last accessed August 2020]; Smith (n 23); Reiner (n 29); S. Charman, ‘From crime fighting to public protection: the shaping of police officers sense of role’ (Police Foundation, 2018); Quirk (n 26); Horwell (n 13); HMCPSI and HMICFRS, ‘Making it fair: The disclosure of unused material in Volume Crown Court Cases’ (July 2017); College of Policing, ‘Capability improvement in policing: A thematic analysis of perennial problems’ (unpublished); P. Gross, ‘A review of disclosure in criminal proceedings’ (Judiciary of England and Wales, 2011).

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Empirical study: methodology In order to both validate the issues raised in Table 5.1 and begin to unpick some of the issues in greater detail, the authors undertook some small-scale empirical research – specifically, a workshop with senior disclosure subject matter experts (SMEs) from several different police forces. We focused the workshop on some specific identified failings of police use of disclosure, such as the continuing failure to complete an MG6 schedule, which is essentially just a list of unused material.38 We set two questions for the workshop groups to consider: first, to identify the causes of poor schedule completion, and second, to identify the causes of inadequate reasonable lines of enquiry. The issues raised in Table 5.1 suggested that some of the drivers of the disclosure problem may relate to culture or mindset; therefore, an objective of the workshop was to understand how such concepts were influencing the problem, if at all. For these purposes, we defined ‘mindset’ as comprising attitudes, behaviours and norms and asked participants to consider these in their responses. Following the workshop, we undertook a series of focus groups in three forces. Although it is clear that there are issues with disclosure practice in all areas of policing, it was suggested by our analysis of inspections39 that such issues are most prevalent in investigations of volume crime by non-specialist officers (as suggested earlier in this chapter). As a consequence, the research detailed in our analysis was focused on those officers and staff predominantly involved in volume crime investigations: that is, response officers, detective constables and response supervisors (Sergeants). These will be collectively referred to as the ‘respondent officers.’The three forces were an opportunity sample which provided a reasonable spread of force types nationally: specifically, a large metropolitan force (Force 1); a small rural force (Force 2); and a medium sized, urban force (Force 3). The focus group transcripts were analysed and a number of themes identified. These themes were considered in the context of the COM-B model, in terms of whether they related to capability, opportunity or motivation to achieve effective disclosure and, ultimately, a fair and proportionate investigation. The questions used to explore the issues within the focus groups centred on the process of initial investigation, what types of cases officers are required to investigate and how confident they felt with that process. The questions also explored the process of case-file building and relationships with other parts of their organisation and with other agencies and actors in the CJS. The aim was to identify respondent officers’ understanding of their role in the process and the barriers and practices that affected their ability to investigate and put together a case from start to finish. The workshop confirmed that the issues raised in earlier research and categorised in Table 5.1 existed, and provided further explanation of some of the 38 The Manual of Guidance forms (MG forms) are the set of forms jointly agreed and used by the police and CPS to build a case file for court. The MG6 series are the forms used to ‘reveal’ information to the CPS to enable them to disclose material to the defence. 39 For example, HMICFRS (n 40) and HMCPSI (n 3).

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underlying drivers behind cultural and mindset issues. These include, but are not limited to: • • • • • • • • •

that officers and staff can become invested with the victim, and with justice for the victim; that there can be an unconscious bias towards ‘proving a case’; an assumption of guilt may dictate reasonable lines of enquiry; belief in the victim may influence reasonable lines of enquiry; lack of experience in seeing cases through the whole process, including to the court stage; being overconfident with existing evidence and what it tells them; a lack of understanding of the role of the investigator and the process; a lack of understanding of what is ‘reasonable’ in the context of ‘reasonable lines of enquiry’; and a lack of ownership and accountability of investigations and case files.

However, it should be noted that this is preliminary work, and there is much more research to be done, including extending the study to a wider range of forces. The next section outlines our initial observations from the focus groups and provides quotes from respondent officers.

Findings Motivation – the role of response officers Our initial findings suggest one of the key issues that may be impacting on effective volume crime investigations is that response officers (who generally undertake such work) do not identify themselves as investigators. Policing procedures and systems appear to have, over the years, pushed them towards a self-perception of recorders of information, rather than investigators. This perception affects how they regard their priorities and where they assign value, which in turn is likely to have an impact on their motivation to investigate. When response officers were asked what they saw as their primary role, they generally stated that their job was to get to the next call within the specified time limits. Servicing Computer-Aided Dispatch (CADs, 999 and 101 calls) was seen as an end in itself. Many in these groups did not see themselves, nor did they ever want to be seen, as ‘detectives.’ The reason they joined the police force was to keep people safe and do what they could to diffuse a situation, as the following quotes illustrate: If the ambulance has an eta of 3–4 hours – we’re the police, we can be there in ten minutes. (Response Officer, Force 2) The long and the short of it is, if your family rang up and someone was hurting them or they were in danger, what would you want us to say ‘oh sorry we

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can’t because they are doing case papers’ or ‘yes someone will be there in the next 10 minutes’? (Detective Sergeant, Force 1) The group discussions suggested response officers’ measure of personal satisfaction came from initial safeguarding and management of the situation, and their personal closure came from getting the case off of their worklist. There was a sense that, psychologically and emotionally, they could not afford to remain invested in cases due to the influx of new demand. The priority of responding to calls over investigation was also reinforced by response supervisors (sergeants), whose performance is often measured on their team’s response times. The reduction in available resources in recent years has exacerbated this issue, making it more difficult for sergeants to ring-fence time for their teams to pursue follow-up enquiries or complete paperwork. When they do allow officers time to complete their investigative tasks and related paperwork, if a call comes in and no one else is available, they will be deployed. Two of the three forces that we visited had relatively recently moved to an omnicompetent model of investigation,40 making the response officers responsible for all volume crime cases they attended from ‘cradle to grave.’ In many cases, some of the more experienced response officers had found the role change difficult, having spent many years in a system where they were not expected to be responsible for investigations. One interviewee (Detective, Force 1) described how, in response to delivering training on the key steps in the initial investigation of domestic abuse incidents, a colleague was told: [W]hy are you telling me to do all this stuff and investigate – I’m not an investigator I’m a reporting officer. Overall, it was clear from the focus groups that many response officers did not see investigation as their priority, and if demand outstripped supply, it was investigative tasks that naturally were set aside. This mirrors the findings of a Police Federation report in 2018; it followed a cohort of recruits over a period four years and found that their perception of their role moved from one of crime fighting to safeguarding.41 This change in emphasis was also illustrated in the findings of HMICFRS in 2017, which concluded that when officers first arrive at a crime scene, their primary focus is keeping victims safe. It did, however, note that ‘[i]n too many cases, officers do not do house-to-house enquires, identify witnesses and use body-worn cameras to get evidence,’ activities which are part of most initial

40 Described earlier in the chapter. The omnicompetent model generally means that an officer attending an incident will retain the resulting crime through to its conclusion for volume crime offences (i.e. those not considered serious). 41 Charman (n 40).

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investigations.42 Analysis of the focus groups therefore suggested that there is an issue in terms of motivation, in that investigating thoroughly often means more work when officers are already feeling overwhelmed in just trying to achieve what they feel are their priority tasks. Capability – knowledge and understanding of investigative practice The focus groups provided evidence that there are a number of capability issues that still need to be addressed in the knowledge and understanding of volume crime investigators. Whilst NDIP has made a significant contribution to developing understanding of disclosure in front-line officers, further work to embed this with a more investigative skill set is required. In recent years, a number of factors have influenced the nature of the investigations with which response officers are contending. These include the changing nature of demand, with a well-recognised increase in more complex crime such as sex offences.43 In addition, there have been shortages of trained detectives, with forces carrying large numbers of vacancies in investigation units (highlighted by HMIC)44 and evidence of a lack of experienced constables in front-line roles.45 Many of the respondent officers in the focus groups described feeling out of their depth, with cases being more complex than they felt able to deal with – cases which would have been investigated by detective constables in previous years. Examples were given in each force of cases, such as stalking or grievous bodily harm, being investigated by response officers. It was generally felt that these borderline cases were most problematic, in that they were more complex or serious but not enough to be taken on by the detective units: [W]here we start to fall down is that middle ground where there is a lot more expected of us now than there used to be. When I started compared to what these guys have got on their [workloads] now, there’s no way I would have had those sorts of investigations. (Response Officer, Force 3) If response officers are to effectively manage such investigations, they need appropriate support and the right conditions. Many of the participants suggested that the 42 HMICFRS, ‘Peel effectiveness 2017: A national overview’ (2017), available here: www.justiceinspectorates.gov.uk/hmicfrs/wp-content/uploads/peel-police-effectiveness-2017-1.pdf [last accessed August 2020]. 43 ONS, ‘Crime in England and Wales year ending March 2018’ (2018), Chapter 11, available here: www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/bulletins/crimeinenglandandwales/yearendingmarch2018#whats-happened-to-the-volume-of-crime-recorded-by-the-police [last accessed August 2020]. 44 HMIC, ‘PEEL: Police effectiveness 2016 – national overview’ (2017), available here: www.justiceinspectorates.gov.uk/hmicfrs/wp-content/uploads/peel-police-effectiveness-2016.pdf [last accessed August 2020]. 45 Home Office (n 5).

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initial training they received on investigations prior to their rotations with a tutor constable was theoretical, with the practical input limited to how to enter the crime onto the computer system. In general, they stated that it made no real sense until they had applied it in practice: [T]he majority [of our learning] is done in the ten weeks with your tutor but again you are trying to learn the legislation and put the law into practice and put it on [computer-systems] so a lot of it is self-taught. (Response Officer, Force 2) Clearly, the effectiveness of the tutor-training element depends on the knowledge and skills of the tutor. Thereafter, officers learn from whoever is around them on their shifts (in short, other officers). In some forces, the change in the model of investigation from the old handover model to one where, in the main, the attending response officer retains ownership, means that many of the more experienced officers may not have undertaken investigations for many years. The difficulty with this situation was summarised by one respondent: The issue with the case files in particular – you don’t get taught anything relevant at [training school]. You get taught by the people around you but . . . the people that should be teaching you actually don’t know themselves. (Response Officer, Force 1) Supervisors should also be a key part of the support on volume crime investigations through guiding and quality-assuring, particularly in the more complex cases. However, many of the response officers in the focus groups suggested that support was variable. Of the response supervisors interviewed, many told us that they did not feel confident in supervising investigations. In general, they were promoted to the rank of sergeant without any further training in investigations and struggled with that part of their role. In particular, making decisions on cases requiring some form of disposal was mentioned as a stress point. We were told it was often easier not to make a decision, instead of being blamed for getting it wrong. [I]f you have 7 officers in your paperwork group and they each have 30 jobs that’s 210 jobs for you to review and that is equally daunting . . . you sit down on day one with stripes on but no one says to you like ‘hey do you want some support?’ they might show you what buttons to press on [computer system] to get the job to go away and that hindsight brigade of people who then look at closed occurrences and look at your rationale and say ‘I don’t think you should have closed that job.’ (Sergeant, Force 3) While some forces were trying to address this need for greater support, with the provision of investigation courses for supervisors or through detectives assigned to

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areas who could advise response officers on investigations, access to this appeared to be variable. A further issue that emerged was that ‘disclosure’ is often taught as a standalone subject and becomes, in some cases, a concept officers do not understand because it is presented in isolation. This is compounded by the use of language that makes disclosure practice seem more mysterious and complicated than it is; for example, the use of the word ‘schedule’ instead of ‘list’ or the fact the process is known as ‘disclosure’ when the police’s main role in this process is ‘revelation.’ In the minds of some officers, disclosure became a separate bureaucratic and legalistic exercise disconnected from the investigation. In summary, disclosure was something they had to do at the end of the file build, but without a real understanding of why it needed to be done. I don’t think people tend to put disclosure alongside your lines of enquiry and what you should be doing, following up etc. that’s seen as almost something different. That’s investigating and disclosure is what you do afterwards. (Response Officer, Force 3) Overall, there seemed to be a reliance on checklists or aide-mémoires that officers had been given related to the tasks to be done at a crime scene rather than deeper understanding of investigative practice more generally. They seemed to follow ‘crib’ sheets religiously or apply mnemonics in order to remember the required actions. In our view, this seemed to remove the ‘thinking’ element of disclosure practice espoused by NDIP. One of the suggestions from the research literature described earlier is that there is a prosecution bias within the police. Response officers’ understanding of their role as an independent investigator appeared to be varied. Many seemed to understand this in principle but were less clear on how to put it into practice; others within the focus groups talked about ‘light-bulb’ moments, when the understanding of the need to investigate both towards and away from a suspect – and by extension the purpose of disclosure – dawned on them. For some of the older officers, the common factor was experiencing court and being ‘chewed up’ by the defence for the first time. For others, it was a particular case that was more complex, where they were mentored through it and learned via that process. They also talked about learning by ‘having a go,’ getting it wrong, and having it pointed out to them. This meant that those undertaking high numbers of cases generally felt confident with the types of cases they saw frequently: It’s like anything – you get good at the things you do regularly. (Response Officer, Force 3) Another method of achieving the ‘light-bulb moment’ in relation to disclosure was suggested to be through attachments – spending a period working in another area of practice, like CID. These were felt to be particularly beneficial, and evidence

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suggests that this is the most effective way to embed learning.46 However, there was a suggestion from the focus groups that reduced resources meant attachments to other parts of the force were less possible and very much dependent on whether their supervisor felt able to allow the abstraction. Opportunity to investigate From our initial observations, there appeared to be some particular factors which impacted on the opportunity of volume crime investigators to investigate. In the analysis of opportunity, the COM-B model examines not just physical opportunity but social opportunity. Physical opportunity generally refers to space and time, triggers and prompts in the external environment and objects, services and location of the activity. Social opportunity refers to the influences of peers, social norms, credible models and the overriding culture.47 Officers often told us that time for undertaking follow up enquiries and paperwork was scarce. Many officers described trying to complete paperwork at 3:00 a.m. or requesting time in the office to do paperwork; this was primarily for audit purposes, knowing it would not be possible in normal working hours due to available resources that day and the priority being to attend calls. This theme was common across the forces included in the research, suggesting the existence of social norms which reinforced the low value of (what were perceived to be) administrative rather than investigative activities. Other opportunity considerations include the nature of the response environment, which is not conducive to what policing is expecting of its officers with respect to disclosure. Officers attending scenes are often involved in fast-paced, chaotic situations where there is less opportunity to switch to a slower-paced, ‘thinking’ approach. One officer described this situation: You’ve been rolling around, adrenaline is pumping, everything is going – let’s slow it down what is going to be a proportionate line of enquiry for what we’ve got here. What do we need to follow up that might help our case and what do we need to follow up that might not help our case – that is essentially key to disclosure. (Response officer, Force 3) The cognitive load in these kinds of policing situations is significant. The reality of operating in this environment means, psychologically, that it is difficult to transition between fast- and slow-paced thinking. Others, tasked with taking a view on officers’ actions after the fact, may not account for these effects when reviewing decisions later that were taken in the midst of such chaos.

46 L. Wheller and J. Morris, ‘What works in training, behaviour change and implementing guidelines’ (National Policing Improvement Agency, 2010). 47 Michie et al. (n 34).

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Of the other issues that impact on the opportunity to investigate effectively, one of the more frequently mentioned was the relationship with CPS. For response officers, much of the relationship with the CPS is now conducted remotely, with technical solutions taking the place of human interaction. There is little opportunity to contact the CPS directly, and officers told us that they generally did not know the identity of the prosecutor with whom they were dealing. The most common issue raised in relation to the CPS was that the actions48 which they returned often had very short deadlines and a threat of discontinuance if these were not met.49 Officers described not understanding the relevance of something they were being asked to do or feeling it was unnecessary, which is likely to affect their motivation. For the response officers on a shift system, this would often occur when they were on rest days or on operations with no access to the computer system; by the time they returned to work, the deadline had passed and the sense of ‘failure’ had already set in. Officers suggested that communicating with the CPS prosecutor and negotiating a change to the deadline was very difficult, with the only opportunity being to attach a memo to the case and hope it was noticed in time. The adjective ‘faceless’ was used many times in relation to the CPS: You don’t have a face or even a voice to speak [to] it’s just email. (Response Officer, Force 2) Some comments from the focus groups suggested that, when faced with unrealistic deadlines, it was easier (if they could) to comply with CPS actions. One detective constable told us how she felt compelled to come in on rest days to complete an action log due to response failings and curt emails from the prosecutor. This is only one example, but indicative of commonly held views about the relationship between the two organisations. Other processes mentioned in relation to creating barriers to effective volume crime investigations included the lack of a clear process for getting mobile phones analysed and long waiting times for getting forensic evidence results. These often created significant gaps between the initial crime happening and being able to complete the relevant paperwork, with cases remaining on worklists for long periods. Officers would then have to re-engage with the crime long after it had occurred, which one might expect to have a substantial impact on their recall. These initial observations suggest that there are significant opportunity issues that affect the volume crime investigators’ ability to investigate, and there is potential to improve processes to reduce the impact of these barriers.

48 If an officer is considering what to charge a suspect with, or is looking to obtain legal advice for this purpose, they can digitally submit the evidence they have gathered so far to the CPS in an advice file. 49 Discontinuance is the ‘[t]imely termination of proceedings . . . in the interests of justice’ (CPS, ‘Termination of Proceedings (including discontinuance)’ (2019), available here: www.cps.gov.uk/ legal-guidance/termination-proceedings-including-discontinuance [last accessed August 2020].

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Conclusions Observations from our preliminary research provide useful insights into the disclosure problem. We have been able to comment on the applicability of alternative approaches to improving investigation and to consider the potential for future interventions to be more targeted, and therefore to achieve greater sustainable impact. In researching behavioural change theory, we began to realise that many pre-existing interventions have, to date, focused on capability measures alone. However, research shows that to have a long-lasting impact on behaviour change, capability measures cannot be addressed in isolation. We need to understand the broader behavioural drivers, too, like opportunity and motivation. From the analysis of the problem using the behaviour change model, we began to understand the value of spending a greater amount of time diagnosing the problem before embarking on solutions. NDIP has successfully created momentum in this area through a shared action plan. As a quick-time response to a crisis, its solutions were based on generalisations about what commentators believed constituted the problem at that time. What we have tried to set out is that disclosure is an outcome problem, and its causes are multilayered and rooted in behaviour. As discussed earlier and in other chapters of this collection, many commentators have identified cultural failings driving the issues, and while there is some evidence to support their view, we think that there is a gap in understanding how that culture develops and is sustained. To achieve further sustainable improvement, we suggest future actions need to focus more laterally on the system and the interconnectivity of its components parts: namely, capability, opportunity and motivation. Motivation From this initial research, there appear to be stark differences between the way response officers and their supervisors see their role in relation to investigation and the expectations being placed on them by others. In developing a more sustainable approach to improving disclosure practice, consideration should be given to improving the ‘motivation’ of front-line officers in undertaking investigative tasks and working to embed the perception of themselves as primary investigators with a crucial role in any subsequent prosecution. We need to understand how that view of their primary role is developed and reinforced if we are to address the motivational issue. Although officers may acquire a theoretical understanding of their role as an independent investigator during initial training, the focus groups suggest that practical skills – such as how to approach an investigation and what disclosure means in practice – are picked up on the job from tutors, more experienced colleagues and supervisors. Researchers in the past have described how the understanding of policing and how to deal with situations is passed on to new recruits through story telling.50 If the officers passing on these stories and working

50 S. Holdaway, Inside the British police: a force at work (Oxford: Blackwell, 1983).

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rules that govern the approach to investigations have had little recent experience in investigations themselves, it will be difficult for those new to that environment to develop good practice. A perpetual cycle of unconscious lack of competence may therefore develop, based on an understanding of what ‘good’ looks like but which is out of kilter with the broader expectations of the justice system as a whole. We would suggest that work also needs to be done to manage expectations about what a response officer can reasonably achieve in some circumstances, a point which transcends all three elements of the COM-B model. We have considered the pressure of the cognitive load on response staff and should recognise that training and guidance will never fully equip them for every eventuality; any individual can only carry a certain amount of tacit knowledge with them at any one time. We would question how realistic policing is being about the volume and range of activity expected from response officers and whether policing can design better systems and organisations to deliver what is wanted. We would suggest a need to reach a tighter shared definition of the role of a response officer with clearer boundaries, which will allow them to deliver what is desired and feel that they are doing so. Capability The types of jobs now assigned to front-line responders are more complex, challenging and, invariably, time-consuming to resolve; yet the support for such officers does not appear to have kept pace with the change in demand. Capability gaps are most evident in those supervising and mentoring those with less experience. Providing existing volume crime investigators and supervisors with opportunities to develop investigative skills and knowledge may be a way to increase capability for all front-line investigators, including new recruits. That may, in turn, have an impact on the importance they place on investigative tasks within their role. How the increase in capability is to be delivered to those existing officers and supervisors is important. It needs to recognise the importance of experiential learning and the use of alternative models of learning, such as attachments to specialist units or more consistent and comprehensive feedback.51 In addition, any process of upskilling needs to consider the way in which disclosure is taught and should ensure that it is embedded in investigations rather than presented as a discrete topic. Efforts should also focus on demystifying the language used, given that excessive legalese is not necessary; the actual process is quite straightforward. Opportunity We have observed that, when moving to different policing models, consideration should be given to how current resourcing levels and demand profiles will impact on the operation of the model. Those taking on new roles need the available social and physical opportunities to operate effectively. Policing models evolve to meet

51 Wheller and Morris (n 51).

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ever-changing requirements, but it may be that support structures and the levels of built-in resilience that are required in the new environment are not fully considered. The increasing complexity of crime52 and the lack of detectives53 have in recent years resulted in the types of cases that response officers are expected to hold on to from start to finish. These are often more serious and specialised than cases their predecessors would have had to manage. In addition, the nature of the demand on policing has changed with an increase in mental health-related incidents and a greater focus on safeguarding and social welfare-type issues.54 This means the range of situations, and the amount of knowledge which officers are expected to retain and then apply in some kind of systematic way, has also increased. As a first responder, the front-line officer could attend a range of serious incidents which pose personal dangers. The officers’ role in that moment is to diffuse the situation, isolate and mitigate all risks and build rapport in order to gather information while managing their own fears. In the moments after responding to these situations, they are expected to make quite a significant cognitive switch to a more thoughtful, inquisitive, considered mindset. They are expected to think about the investigation, what reasonable lines of enquiry to pursue and what evidence they need to obtain in a search for the truth. This change of pace and the speed with which they are expected to switch modes needs to be recognised and built into resourcing models. We may need to consider what so-called ‘softer’ skill sets and personal attributes are required to transition quickly from ‘doing’ to ‘thinking’ and back again. Other opportunity issues require improvements to the processes and systems necessary to build a case file. Relationships and transition points between organisations are very important. We have seen how opportunity blockers in this context also affect motivation. For example, when officers do not have details of individual prosecutors, they feel unable to contact them directly; if they do not understand the rationale behind what they are being asked to do by the prosecutor, they may be, understandably, less motivated to comply. Despite the efforts of NDIP, there are areas where relationships are still difficult and greater collaboration is required. Other issues Although not the main aim of our focus groups, we observed a distinct fear among attendees of getting things wrong and the possible resultant blame. This risk aversion was discussed in the Flanagan Report,55 which described how it had led to a

52 HMICFRS, PEEL spotlight (n 40). 53 HMICFRS, Making it fair (n 40). 54 College of Policing, ‘Demand analysis report’ (2015), available here: www.college.police.uk/ About/Pages/Demand-Analysis-Report.aspx [last accessed August 2020]. 55 R. Flanagan, ‘The review of policing: Final report’ (February 2008), available here: www.justice inspectorates.gov.uk/hmicfrs/media/flanagan-review-of-policing-20080201.pdf [last accessed August 2020].

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process-driven police service that creates ‘Rolls Royce processes’ that cover every eventuality.56 The report went on to explain that a proportionate approach that considers risk and harm is only possible if police officers and staff are confident, can use greater professional judgement and take greater risks in their decision making. For that, they need to know that they will have the support of their force and that clear and consistent standards exist against which their behaviour will be judged. Consequently, it is likely that for the ‘thinking approach’ mentioned in NDIP to work in the context of disclosure, it requires that officers are confident in basic investigative skills and that they have an understanding of a number of core skills which will support good disclosure. Moreover, officers need faith that their well-intentioned responses are viewed in the context of what they could have reasonably been expected to know or understand at the time. The benefit of hindsight may bring with it a lack of consideration of the nature of the environment in which the decisions were initially made. Potential next steps In summary, while NDIP has created momentum to improve practice around disclosure, there is still some way to go – and the organisations involved recognise the challenge. In order to develop sustainable change, a deeper understanding of the problem is required, and interventions need to be designed to tackle all the drivers of it. The COM-B behaviour change model is one approach that has allowed a more comprehensive analysis of the issues and helped us to identify potential alternative responses and more specifically, whom to target. The findings from our initial focus groups suggest that to improve investigative practice and the use of disclosure, we need to recognise the wide range of issues response officers deal with and their understanding of their role. We also need to consider how they develop their knowledge and investigative skills, and any interventions developed need to take account of these key factors. The focus groups indicate where a further concentration of efforts may help to deliver further improvements in disclosure practice. Much of the following would require that forces are able to dedicate the necessary time and resources, which is in itself not a straightforward issue, though some are less onerous: •

initial learning – This process has already begun, with far more comprehensive investigative training being embedded into the Police Constable Degree Apprenticeship (CDA). Learning standards for anyone involved in an investigation (for example, call takers) have been produced to drive up general investigative awareness. This activity needs to be supported by learning to uplift the knowledge and skills of those supervising and tutoring new recruits so they have a supportive culture around them which embeds good practice.

56 Ibid. 51.

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the need for greater experiential learning opportunities – It must be accepted that some aspects of investigation can only be learnt on the job; therefore, there is a need to widen opportunities for experiential learning. In addition, better structures are needed for CPD so that learning is not lost due to a lack of opportunity to apply skills in practice. demystification of disclosure – The process of disclosure could be demystified by changing the language used and teaching disclosure as an integral part of investigation, with a clear focus on the practical aspects of delivering fair criminal justice outcomes. support for response officers to undertake investigations – Some aspects of the problem are difficult to address in the current resourcing climate. However, where response officers are expected to carry an investigation workload and see cases through from cradle to grave, they need their leadership to acknowledge the difficulties which they face and provide appropriate support, particularly by providing ring-fenced time within shift patterns to allow follow-up actions. improved training for supervisors in relation to investigations – Opportunities for supervisors would enable them to guide their teams in thorough investigations but also give them the confidence to make effective decisions on the necessary finalisation of cases without the reasonable likelihood of conviction. improved relationships with the CPS – the ability to make contact with a named prosecutor would be desirable, building effective continuity in relationships across investigations and resulting in effective, case-specific feedback. This would be another way of encouraging good practice and motivating improved investigations and would help deliver the experiential learning desired. appropriate performance measures – An awareness of the impact of performance measures and an understanding of how measures will drive behaviour is needed if policing wants effective investigations. Balance should be sought in any monitoring of and targets for response call times.

6

Uncovering disclosure errors Appeals, innocence projects and the Criminal Cases Review Commission Dr Hannah Quirk*

The jurisdiction of England and Wales is currently at a critical juncture in the context of criminal justice (a brief phase of institutional flux during which dramatic change is possible).1 The Westminster Commission on Miscarriages of Justice is due to report in 20202 and a Royal Commission was announced in the 2019 Queen’s Speech ‘to review and improve the efficiency and effectiveness of the criminal justice process.’3 One of the most important issues the Royal Commission must address is that of disclosure. The high-profile collapse of Liam Allan’s rape trial in late 2017, due to the prosecution’s failure to disclose exculpatory material to the defence, has awakened public concern about what ‘used to be seen as a rather dry part of the trial process which no one quite understood.’4 Attention has focused on the risks of miscarriages of justice being caused by the pre-trial disclosure regime instituted by the Criminal Procedure and Investigations Act 1996 (CPIA). This has led to multiple organisational reviews of police and prosecutorial pretrial practice. This chapter develops the important point made by Greenwood and Eady5 that improvements are also needed in how such cases can be detected post-conviction, but disputes their conclusion that innocence projects are the answer. This develops my criticisms of over a decade ago that ‘[f]or the UK to abdicate such work to innocence projects would be a retrogressive step.’6 Criticism of the Criminal Cases Review Commission (CCRC),

* Dr Hannah Quirk is a Reader in Law at Kings College, London, [email protected]. 1 G. Capoccia and R.D. Kelemen, ‘The study of critical junctures: Theory, narrative, and counterfactuals in historical institutionalism’ (2007) World Politics, 59, April, 341–369. 2 All Party Parliamentary Group on Miscarriages of Justice, ‘Westminster Commission on Miscarriages of Justice,’ available here: https://appgmiscarriagesofjustice.wordpress.com/commission-onmiscarriages-of-justice/ [last accessed August 2020]. 3 Text available at www.gov.uk/government/speeches/queens-speech-december-2019 [last accessed December 2019]. The fairness or accuracy of the system was not mentioned. 4 D. Shaw, ‘Hundreds of cases dropped over evidence disclosure failings,’ 24 January 2018, available here: www.bbc.co.uk/news/uk-42795058 [last accessed August 2020]. 5 H. Greenwood and D. Eady, ‘Re-evaluating post-conviction disclosure: A case for “better late than never”’ (2019) International Journal of Law, Crime and Justice Journal, 59, 100328. 6 H. Quirk, ‘Identifying miscarriages of justice: Why innocence in the UK is not the answer’ (2007) Modern Law Review, 70(5), 759, 776.

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the body charged with investigating claims of miscarriages of justice, has grown in recent years, some of it reasonable but much unfounded. It is argued here that attention would be directed better at reforms to the appellate process, including strengthening the CCRC and its approach to this work rather than delegating this crucial responsibility to enthusiastic amateurs.

Developments in disclosure Even though the English and Welsh criminal justice system is characterised as an adversarial model,7 partisanship cannot be untrammelled. In a criminal investigation, the state has the advantage of superior resources. This is not solely financial but also relates to access to information. The police control the crime scene; have first, and perhaps the only, access to pathologists or forensic testing; and information about the crime is reported directly to them. They have statutory powers to stop and search people, vehicles and property, and to require access to potentially relevant information from third parties. This creates a significant inequality of arms in the both the investigative and trial processes. Prosecutors have an overriding duty to act fairly, not just to win at any cost.8 Any evidence that the prosecution proposes to rely upon at trial must be disclosed to the defence beforehand. This chapter is concerned with what is called ‘unused material’; that which is of no use to the prosecution – but occasionally may be of assistance to the defence. As the CACD held under the common law regime, ‘in our adversarial system, in which the police and prosecution control the investigatory process, an accused’s right to fair disclosure is an inseparable part of his right to a fair trial.’9 Perhaps surprisingly, this duty was not taken seriously by the courts until the mid-20th century.10 With a few exceptions, more political and policy-making attention has been given to the alleged problems that disclosure causes to the prosecution rather than its demonstrable importance as a safeguard against wrongful convictions. Non-disclosure of exculpatory material was a significant factor in the notorious miscarriages of justice that were overturned in the early 1990s, most notably that of Judith Ward.11 This case was regarded as the

7 See J. McEwan, Evidence and the Adversarial Process: The Modern Law, 2nd Edition (Oxford: Hart Publishing, 1998), pp. 2–3. 8 Code for Crown Prosecutors, 2018, 2.7, available here: www.cps.gov.uk/publication/code-crownprosecutors-2018-downloadable-version-and-translations [last accessed August 2020]. 9 R v Brown (Winston) [1995] 1 Cr App R 191 at 198. 10 R v Bryant and Dickson (1946) 31 Cr App R 146; The Attorney General’s Guidelines (1982) 74 Cr App R 302. For a full history, see J. Niblett, Disclosure in Criminal Proceedings (London: Blackstone Press Ltd, 1997). 11 R v Ward [1993] 1 WLR 619. See also, R v Kiszko The Times (19 February 1992); R v Maguire (1992) 94 Cr App R 133; R v McIlkenny [1992] 2 All ER 417 and R v Taylor (1994) 98 Cr App R 361. Concerns were also expressed about inadequate prosecution disclosure in M. Zander and P. Henderson, Crown Court Study, Research Study No. 19, Royal Commission on Criminal Justice (London: HMSO, 1993).

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‘high point of the common law’12 when the Court of Appeal recognised the dangers of non-disclosure and wrote in its ruling: 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.13 The Court of Appeal narrowed the test soon after,14 and the revised requirement was that material must be disclosed if, on a sensible appraisal, it was judged to: 1 2 3

be relevant or possibly relevant to an issue in the case; or raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution propose to use; or to hold a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to 1 or 2.

The situation thus appeared to be workable. Allegations of defence abuse of the disclosure system were made by senior police officers, politicians and some senior judges.15 There was, however, no empirical evidence that disclosure was imposing undue burdens on the prosecution or subverting justice, nor had the judges asked for Parliamentary action as they had done with the right of silence.16 A peculiar combination of circumstances, however, meant that the issue did not subside. On the day the convictions of the Birmingham Six were quashed, the government announced that it was establishing a Royal Commission on Criminal Justice (RCCJ) ‘to minimise so far as possible the likelihood of such events happening again.’17 Despite the circumstances of its founding, the RCCJ’s terms of reference accorded equal weight to the acquittal of the innocent, the conviction of the guilty and the efficient use of resources.18 The RCCJ was charged specifically with examining whether the right of silence should be curtailed, a very controversial step. Inserting this into the terms of reference ‘embodied a substantial triumph by organisations such as the police and the CPS who viewed the Commission as a vehicle for the promotion of crime control policies.’19 The police had led

12 13 14 15 16 17 18 19

J. Wadham, ‘Prosecution disclosure, crime and human rights’ (1997) NLJ, 147, 697. R v Ward [1993] 96 Cr App R 1 per Glidewell LJ at p25. R v Keane [1994] 1 WLR 746 C. Pollard, ‘A case for disclosure’ (1994) Crim LR, 42; Michael Howard, Hansard, 27 February 1996, cols. 738–9; Lord Taylor, ‘The Tom Sargant Memorial Lecture’ (1994) NLJ, 125. Such as Lane LCJ in R v Alladice (1988) 87 Cr App R 380, at 385. Mr Kenneth Baker, HC Deb 14 March 1991 vol 187 c1109. Report of the Royal Commission on Criminal Justice, Cm 2263 (London: HMSO, 1993), i. R. Leng, ‘The right to silence reformed: A reappraisal of the royal commission’s influence’ (2001) Journal of Civil Liberties, 6, 107, 108).

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a concerted drive since the 1960s to curtail the accused’s right of silence. As a compromise measure, a number of suggestions had been made about requiring an outline of the defence case in advance of trial to prevent the (largely mythical) danger of ‘ambush defences.’20 The RCCJ concluded that the right of silence should be retained at the police station but that defendants should be required to give an outline of their case in advance of trial, and that the prosecution and judge should be allowed to comment on any failure to disclose a defence in advance of trial or to testify.21 This echoed the proposal of the Home Office Working Group on the Right of Silence.22 The government rejected the RCCJ’s recommendation regarding the right of silence. The resulting legislation allowed comment to be made about the failure of the accused to answer certain police questions, the accused’s reliance at trial on a fact which had not been mentioned when questioned, and their failure or refusal to testify.23 Within seven months of the curtailment of the right of silence coming into force, without conducting any research or waiting to see if the changes to the right of silence had fulfilled the claims made in its support, the government introduced the ‘disclosure revolution’24 of the CPIA. These changes appeared to have been ideologically motivated; an early sortie in ‘the modern law and order arms race’25 in England and Wales. Successive governments claimed to be ‘rebalancing’ the criminal justice system against suspects who, abetted by their lawyers, were evading justice by exploiting the safeguards introduced by the Police and Criminal Evidence Act 1984 (PACE). The Chairman of the Police Federation, (the staff association for police officers up to the rank of chief inspector), responded to the announcement of the Bill with partisan delight. He said ‘This is a black day for the Lawyers’ Angling Society. This Bill should end the farce of the gigantic fishing expedition which has become a notorious tactic amounting, in plain English, to blatant attempts to obstruct and delay justice.’26 None of the wealth of empirical criminal justice research being generated at the time supported the case for change. ‘Common sense’ was preferred to empirical evidence or theoretical considerations regarding suspects’ rights and the prosecutorial burden of proof. Arguably governments were just ‘acting out’27 with punitive sounding measures in the face of their inability to reduce crime.28 The

20 H. Quirk, The Rise and Fall of the Right of Silence (Abingdon: Routledge, 2016), ch 2. 21 Report of the Royal Commission on Criminal Justice, Cm 2263 (London: HMSO, 1993) ch 4 and pp. 91–100. 22 Home Office, Report of the Working Group on the Right to Silence (London: HMSO, 1989). 23 Criminal Justice and Public Order Act 1994, ss34–38. 24 R. Leng, ‘Defence strategies for information deficit: Negotiating the CPIA’ (1997) E & P, 1, 215, 216. 25 S. Chakrabarti, ‘A thinning blue line? Police independence and the rule of law’ (2008) Policing 2, 367, 369. 26 M. Howard, Hansard, Commons, 27 February 1996, cols 740. 27 D. Garland, The Culture of Control: Crime and Social Order in Contemporary Society (Chicago: University of Chicago Press, 2001), p. 133. 28 H. Quirk, The Rise and Fall of the Right of Silence (Abingdon: Routledge, 2016), chapter 6.

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‘crime control chimera of criminals exploiting due process protections to escape justice’29 was exposed by the research that found most defence representatives were insufficiently adversarial,30 and the majority of cases generated fewer than 125 pages of unused material.31 A minority of cases, particularly those involving white collar crime, generated vast amounts of paperwork, and these were the tail that wagged the dog.

Disclosure and the risks of wrongful convictions The CPIA created the first statutory system of pre-trial discovery in criminal proceedings. Some of these requirements have been positive in terms of reducing the risk of miscarriages of justice. The police responsibilities for the collection, retention, documentation and disclosure of material are set out in a Code of Practice.32 It requires that all reasonable steps are taken in criminal investigations and that all reasonable lines of enquiry are pursued, whether these point towards or away from the suspect.33 Investigators are required to seek relevant material from third parties and to ensure that it is retained,34 but they do not have to make speculative enquiries. Any material that the investigator retains must be listed on a schedule of non-sensitive or sensitive material.35 Relevant material includes that ‘[w]hich has some bearing on any offence under investigation or any person being investigated, or on the surrounding circumstances of the case, unless it is incapable of having any impact on the case.’36 These schedules are sent to the prosecutor who decides what, if any, of the material listed ‘might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused.’37 This material is then made available to the

29 H. Quirk, (2006) ‘The significance of culture in criminal procedure reform: Why the revised disclosure scheme cannot work,’ International Journal of Evidence and Proof, 10(1), 42–59, 57. 30 J. Baldwin, The Role of Legal Representatives at the Police Station, RCCJ Research Study (London: HMSO, 1993); L. Bridges and S. Choongh, Improving Police Station Legal Advice (London: Law Society and Legal Aid Board, 1998); M. McConville, J. Hodgson, L. Bridges and A. Pavlovic, Standing Accused: The Organisation and Practices of Criminal Defence Lawyers in Britain (Oxford: Oxford University Press, 1994). 31 Law Society, Disclosure: Law Society Response (London: The Law Society, 1995). A later study found that 90% of Crown Court files contained prosecution bundles of 225 pages or fewer; the median number of pages was 75. This suggests that most cases did not contain large quantities of unused documentation (P. Pleasance and H. Quirk, The Criminal Case Profiling Study (London: Legal Services Research Centre, Legal Services Commission of England & Wales, 2001). 32 Criminal Procedure and Investigations Act 1996, s23(1). 33 Ministry of Justice, Criminal Procedure and Investigations Act 1996 (section 23(1)) Code of Practice, Revised in accordance with section 25(4) of the Criminal Procedure and Investigations Act 1996 Para 3.5, available here: https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/447967/code-of-practice-approved.pdf [last accessed August 2020]. 34 Ibid. para 3.4. 35 Ibid. para 6.8–6.10. 36 Ibid. para 2.1. 37 CPIA 1996, s3.

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defence, along with copies of the schedules. This decision is usually based on the written description, although the prosecutor can ask to see the material or request further details. The initial scheme was a two-stage procedure. Primary Prosecution Disclosure was made of any material that might undermine the prosecution case. For the first time, the defendant was then obliged to submit an outline of its case within 14 days. Secondary Prosecution Disclosure of any material that might support this defence was then made. In 2003, this was collapsed into a single point of disclosure with an ongoing duty on the prosecutor to review the unused material.38 If the defendant fails to provide a statement, submits it late, sets out a defence at trial that is inconsistent with it, or calls alibi or witness evidence that was not detailed in the statement, then the court or any other party with leave of the court (such as the co-accused or the prosecution) may make such comment as appears appropriate.39 The court or jury may then draw such inferences as appear appropriate when considering their verdict.40 Criticism of the disclosure regime was widespread; both in principle and in practice, the Act runs counter to the adversarial nature and occupational cultures of the system. Arguments founded on general principles – for example, that the scheme is inappropriate in an adversarial system;41 that it might snap the golden thread;42 or that it strikes at the common law rules of fairness43 – gained little traction. Arguably, this was, in part, because such principles had been fatally weakened by the curtailment of the right to silence.44 The concerns about the practical risks of miscarriages of justice caused by the regime have persisted. The CPIA created an ‘awkward split of responsibilities’45 between the police and CPS, making the prosecutor formally responsible for disclosure when ‘lawyers are only as good as the material given to them.’46 The design of the legislation failed to consider ‘the radically different participant perspectives’47 of the police, prosecution and defence. It is well known that, consciously or otherwise, police investigators and prosecutors

38 39 40 41 42 43 44 45 46 47

Criminal Justice Act 2003, Part 5. CPIA 1996, s11(3)(a). CPIA 1996, s11(3)(b). M. Redmayne, ‘Process gains and process values: The Criminal Procedure and Investigations Act 1996’ (1997) MLR, 60, 79. That is, it is for the prosecution to prove guilt (J. Sprack, ‘Will defence disclosure snap the golden thread?’ (1998) E & P, 2, 224). R. Leng, ‘Defence strategies for information deficit: Negotiating the CPIA’ (1997) E & P, 1, 215. See H. Quirk ‘The right of silence in England and Wales: Sacred cow, sacrificial lamb or Trojan Horse?’ in J.D. Jackson and S.J. Summers (Eds.), Obstacles to Fairness in Criminal Proceedings: Individual Rights and Institutional Forms (Oxford: Hart Publishing, 2018) pp. 75–98, ch 5. Crown Prosecution Service Inspectorate (CPSI), The Inspectorate’s Report on the Thematic Review of the Disclosure of Unused Material, Thematic Report 2/2000 (London: Crown Prosecution Service, 2000) 13.2. M.E. Pater, ‘Exposed weakness?’ (1999) Police Review, 23. J. Plotnikoff and R. Woolfson, ‘A Fair Balance’? Evaluation of the Operation of Disclosure Law (London: Home Office, 2001) p. 141.

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may be subject to confirmation bias.48 Asking the same individuals to consider how to undermine their own cases and to appreciate the possible evidential significance of material to the defence is asking a great deal.49 The subjective nature of the tests means that there is great variation in the implementation of the Act.50 The CPIA increased the potential for wrongful convictions to occur, whilst making it less likely that potentially exculpatory material would be uncovered.51 Concerns about the potential for causing miscarriages of justice were voiced immediately. When David Calvert-Smith became Director of Public Prosecutions in 1998 he made ‘scrupulously complying with the duties of disclosure’ one of the objectives of the CPS. He feared that ‘[i]nnocent people will be convicted. Guilty people will be acquitted by juries or judges, or have their convictions quashed on appeal because of late disclosure which turned the jury or judge against the prosecution.’52 The latter has not been a problem, but from the outset anxiety was expressed that ‘negative’ material, such as fingerprints that might point to another suspect, was not being identified and that the police were not following up lines of inquiry that might undermine the prosecution.53 In many ways, the situation has worsened in the years since the CPIA was enacted. The swingeing budget cuts to all parts of the criminal justice system have meant fewer staff working under greater pressure. Since 2008, defence solicitors are no longer paid separately for reviewing unused prosecution material.54 The volume of material to be examined has become unmanageable with the development of smartphones and social media. In Liam Allan’s case, a download of the sole complainant’s mobile telephone yielded 2,418 pages worth of messages.55 An additional dynamic is the change in how sexual offences are investigated by the police with the (now qualified) instruction to ‘believe victims.’56 The CPS 48 M. McConville, A. Sanders and R. Leng, The Case for the Prosecution (London: Routledge, 1991); D.J. Smith, ‘Case construction and the goals of criminal process’ (1997) Br J Criminol, 37, 319. 49 C. Taylor, ‘Advance disclosure and the culture of the investigator: The good idea that never quite caught on?’ (2005) International Journal of the Sociology of Law, 33(2), 118–131. 50 J. Plotnikoff and R. Woolfson, ‘A Fair Balance’? Evaluation of the Operation of Disclosure Law (London: Home Office, 2001), ch 11. 51 H. Quirk, ‘The significance of culture in criminal procedure reform: Why the revised disclosure scheme cannot work’ (2006) E & P, 10(1), 42–59, 43. 52 CPS Press Release 118/99. 53 Crown Prosecution Service Inspectorate (CPSI), The Inspectorate’s Report on the Thematic Review of the Disclosure of Unused Material, Thematic Report 2/2000 (London: Crown Prosecution Service, 2000) para 4.103. 54 Litigators’ Graduated Fee Scheme (LGFS), Criminal Defence Service (Funding) Order 2007. 55 C. McRae 21 June 2018 ‘It’s a question of who is more believable in court. That’s scary’; available here: www.thejusticegap.com/its-a-question-of-who-is-more-believable-in-court-thats-scary/ [last accessed August 2020]. The Court of Appeal issued a practice note regarding the Crown’s obligations where the material is of a size or nature that makes its examination impractical R v Richards and others [2015] EWCA Crim 1941; [2016] 1 Cr. App. R. 20, at para.34 56 MPS Special Notice 11/02 ‘Principles of the Investigation of Rape and Serious Sexual Assault’: [quoted by Henriques [1.21]; HM Inspectorate of Constabulary, State of Policing, the Annual Assessment of Policing in England and Wales, 2013/2014. A policy subsequently changed following the Sir Richard Henriques, Independent Review of Metropolitan Police Service’s handling of non-recent sexual offence investigations, October 2016.

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was also encouraged to take a less sceptical approach to prosecutions and increase the charge and conviction rate for rape cases. Such an approach again makes it more difficult for disclosure officers and prosecutors to recognise material that should be disclosed. Evidential changes have been introduced to reduce some of the obstacles to convictions for sexual offences. As with convictions obtained under the ‘emergency provisions’ during the Northern Ireland conflict, lowering the bar for achieving convictions where there is little evidence beyond a confession or allegation has made appeals harder.57 The Criminal Procedure Rules have fundamentally altered the way in which judges manage trials, so that efficiency is prioritised.58 The Justice Select Committee reported concerns from defence practitioners that courts have become reluctant to grant adjournments to rectify disclosure errors or delays. When the prosecution serves the disclosure schedule on the day of trial, the defence is frequently given only a short time at court to serve the defence statement and obtain any secondary disclosure. The Defence Practitioners Working Group stated that ‘[i]t has become part of the culture for prosecutors to fail to comply with requirements under [the Criminal Procedure Rules] with no sanction for failure.’59 Mistakes made at this stage become very difficult to remedy later due to the structure of the appellate system. A successful appeal may only be possible by searching the unused material. The ‘near miss’60 case of Liam Allan means that ‘[s]uddenly, disclosure is a hot topic.’61 His rape trial collapsed in December 2017 following the belated disclosure of text messages from the complainant which supported Allan’s case.62 It led to extensive coverage of the problem in the media, from a front-page story and editorial in The Times63 to a feature in Cosmopolitan magazine.64 The CPS and Metropolitan Police conducted an urgent review, concluding that disclosure problems in Allan’s case ‘were caused by a combination of error, lack of challenge, and

57 H. Quirk, ‘Don’t Mention the War: The Court of Appeal, the Criminal Cases Review Commission and Dealing with the Past in Northern Ireland’ (2013) The Modern Law Review, 76(6), 949–980. 58 M. McConville and L. Marsh, ‘Adversarialism goes west: Case management in criminal courts’ (2015) E & P, 19(3), 172–189. 59 Justice Committee (2018) 11th Report – Disclosure of Evidence in Criminal Cases HC 859 at [90]. 60 T. Smith, ‘The “near miss” of Liam Allan: Critical problems in police disclosure, investigation culture, and the resourcing of criminal justice’ (2018) Crim LR, 711–731. 61 D. Shaw, ‘Hundreds of cases dropped over evidence disclosure failings,’ 24 January 2018, available here: www.bbc.co.uk/news/uk-42795058 [last accessed August 2020]. 62 It was followed closely by the cases of Isaac Itiary, Oliver Mears, Samuel Armstrong, Connor Fitzgerald, Petruta-Cristina Bosoanca, Samson Makele. Whilst they attracted less attention, the media coverage made clear that this was a widespread problem. 63 D. Brown, ‘Judge slams Met Police after Liam Allan cleared in rape trial,’ The Times, 15 December 2017, available here: www.thetimes.co.uk/article/judge-slams-met-police-after-liam-allan-clearedin-rape-trial-pcqsp5x9s [last accessed August 2020].Leading Article, 15 December 2017, ‘Rape and justice: Slipshod prosecution work is a gross disservice to victims of sexual abuse,’ The Times, available here: www.thetimes.co.uk/article/rape-and-justice-jw87sp38g [last accessed August 2020]. 64 J. Savin, ‘I was falsely accused of rape,’ March 2019, available here: www.cosmopolitan.com/uk/ reports/a27451529/false-accusation-accused-rape-liam-allan/ [last accessed August 2020].

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lack of knowledge.’65 Further responses included the Attorney General’s Review;66 the production of a National Disclosure Improvement Plan,67 and a Justice Select Committee inquiry.68 Disclosure had already ‘generated more official reviews than any other topic in the law of criminal process,’69 an indication of how deep-rooted its problems are. However, Greenwood and Eady make the important point that attention thus far has focused only on pretrial disclosure and that there is a need to examine the facilities for post-conviction discovery.70

Post-conviction disclosure problems Those convicted in the magistrates’ court are entitled to an appeal as of right, which takes the form of a retrial in the Crown Court before a judge and two lay magistrates. Those convicted in the Crown Court require leave to appeal, which must be requested within 28 days of conviction, or leave to appeal out of time must be granted.71 Only one appeal is allowed; after that, a referral from the CCRC is required, discussed later. An appeal can be based only on new evidence or argument. Merely believing that the jury came to the wrong verdict is not sufficient reason for an appeal. Given the difficulty of finding new evidence within 28 days, most first instance appeals are based on legal argument. The senior judiciary has rarely been enthusiastic about the appeal process and has emphasised consistently

65 House of Commons Justice Committee, Disclosure of evidence in criminal cases, Eleventh Report of Session, 2017–2019, para.7. 66 Attorney General’s Office, Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System (2018, Cm 9735). 67 National Police Chiefs’ Council, College of Policing and Crown Prosecution Service (2018) National Disclosure Improvement Plan, available here: www.cps.gov.uk/publication/nationaldisclosure-improvement-plan [last accessed August 2020]. 68 House of Commons Justice Committee, 2018. See Criminal Legal Aid, Justice Committee, House of Commons, available here: https://publications.parliament.uk/pa/cm201719/cmselect/ cmjust/1069/106903.htm [last accessed August 2020] and Government Response to the Justice Select Committee’s Eleventh Report of Session 2017–19: Disclosure of Evidence in Criminal Cases (December 2018, Cm 9744). 69 I. Dennis, ‘Prosecution disclosure: Are the problems insoluble?’ (2018) Crim. L.R., 10, 829–842, 829. Dennis lists the following: Report of the Royal Commission on Criminal Justice (Cm 2263, 1993) Ch.6; Crown Prosecution Service Inspectorate, The Inspectorate’s Report on the Thematic Review of the Disclosure of Unused Material (London: CPSI, 2000); Lord Justice Auld, Review of the Criminal Courts of England And Wales (TSO, 2001) (the Auld Review) pp. 444–476; J. Plotnikoff and R. Woolfson, “A Fair Balance?” Evaluation of the Operation of Disclosure Law, RDS Occasional Paper No.76 (London: Home Office, 2001); Review of Criminal Investigations and Prosecutions Conducted by HM Customs and Excise by the Hon. Mr Justice Butterfield (2003), Ch.12; Lord Justice Gross, Review of Disclosure in Criminal Proceedings (2011); Lord Justice Gross and Lord Justice Treacy, Further Review of Disclosure in Criminal Proceedings: Sanctions for Disclosure Failure (2012); HM Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary, Making It Fair, A Joint Inspection of the Disclosure of Unused Material in Volume Crown Court Cases (2017). 70 Greenwood and Eady, supra n 5. 71 Criminal Procedure Rules 39.2.

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the importance of respecting the verdict of the jury, achieving finality in its decision and the lack of resources to deal with huge numbers appealing.72 Appeals are more likely to succeed on the grounds of legal argument than new evidence.73 Where previously undisclosed or unknown evidence emerges after conviction, the CACD has the discretionary power to receive it if it: appears to the Court to be capable of belief, may afford any ground for allowing the appeal, would have been admissible in the trial and there is a reasonable explanation for the failure to adduce the evidence at the trial. 74 The Court of Appeal has interpreted this statutory test narrowly. Evidence that could have been adduced at trial will be admitted only in exceptional circumstances.75 If evidence has not been disclosed to the defence, or was disclosed too late in proceedings, it would usually be admitted on appeal.76 It is for the defence to decide what to do with any disclosed unused material, and a failure to inspect it is unlikely to justify an application, for it to be introduced as fresh evidence on appeal.77 If the evidence is admitted, the sole criterion the judges consider is whether the conviction is ‘unsafe.’78 Changing the appellate test is outwith the scope of this chapter, but the problems raised by disclosure bring the restrictions around appeals into sharp focus. Without fresh evidence, defence counsel are likely to advise their clients that they have no grounds of appeal, at which point legal aid is no longer available. Potential appellants are warned of the risk of having time added to their sentences if their appeals are deemed frivolous, and they may face costs orders.79 There is also a requirement for CCRC referrals that an appeal against the conviction has been determined or leave to appeal against it has been refused. This means that many ‘no appeal’ cases are screened out early on in the process and do not get a full review.80 The referral requirement can be waived ‘if it appears to the Commission that there are exceptional circumstances which justify making [the referral],’81 but an assertion that the applicant will not be able to secure access to relevant exhibits for testing will not be considered exceptional circumstances, nor will the mere fact that the

72 S. Roberts, ‘Fresh evidence and factual innocence in the criminal division of the court of appeal,’ (2017) Journal of Criminal Law, 81(4), 303–327, 305; R v Pinfold [1988] 2 All ER 217, 218 per Lord Lane. K. Malleson, ‘Appeals against conviction and the principle of finality’ (1994) Journal of Law and Society, 21(1), 151–164. 73 Roberts ibid. 74 Criminal Appeal Act 1968, s23 (2). 75 R v Solomon [2007] EWCA Crim 2633; R v Simon John Hall [2011] EWCA Crim 4. 76 See, for example R v Adams [2007] 1 Cr App R 34 at [155]. 77 R v Gorman (Damien Paul) [2019] EWCA Crim 2271 at [64]. 78 Criminal Appeal Act 1968, s2, as amended by Criminal Appeal Act 1995, s2(1)(a). 79 Criminal Appeal Act 1968, s29 and s31(2)(h); R v Gray and Others [2014] EWCA Crim 2372; R v Jerry Fortean [2009] EWCA Crim 437. 80 C. Hoyle and M. Sato, Reasons to Doubt: Wrongful Convictions and the Criminal Cases Review Commission (Oxford: Oxford University Press, 2019). 81 Criminal Appeal Act 1995, s13(2).

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CCRC’s investigation has produced fresh evidence amounting to a real possibility.82 In these situations, the applicant should apply for leave to appeal out of time, which is likely to be rejected, further delaying the process. It is very difficult for those convicted to uncover fresh evidence, particularly if they are incarcerated. The CPIA has already limited the material that must be retained. There is no requirement to keep draft statements if the investigator considers that they do not differ from the final version.83 This is a potentially ‘significant lacuna’84 given how many miscarriages of justice have been overturned following analysis of original statements. Investigators are also told that it is not necessary to retain material they consider incapable of impact, although they are reminded to err on the side of caution, bearing in mind that what is incapable of impact may change over time.85 After conviction, all relevant material must be retained for six months, or until the person is released from custody. If the conviction is contested, the material must be retained until the appeal or application to the CCRC has been determined.86 Since the closure of the Forensic Science Service in 2012, the police are required to retain all exhibits post-trial.87 This creates variations in provision and it has been argued that ‘[t]he storage of material, post-conviction, is currently an opaque, unaudited landscape which is not fit for purpose.’88 There are no sanctions for police forces that lose or destroy material. The CPIA does not provide clear provision for post-conviction disclosure; the statutory duty of continuing disclosure ceases upon conviction, acquittal or discontinuance of the prosecution.89 The Attorney-General’s guidelines state only that ‘[w]here, after the conclusion of the proceedings, material comes to light, that might cast doubt upon the safety of the conviction, the prosecutor must consider disclosure of such material.’90 Evidence used in the trial may become a source of appeal, for example, if new forensic techniques become available. The defence can request access to material, but the Supreme Court held that there is no obligation for the police to release material to the defence for the purpose of investigation.91

82 CCRC, Casework Policy on Exceptional Circumstances, available here: https://s3-eu-west-2. amazonaws.com/ccrc-prod-storage-1jdn5d1f6iq1l/uploads/2019/02/EXCEPTIONAL-CIRCUM STANCES.pdf [last accessed August 2020]. 83 Para 5.4. 84 D. Corker, ‘Maximising Disclosure’ (1997) NLJ, 885, 961 and 1063, 885. 85 Attorney General’s Office, Attorney General’s Guidelines on Disclosure (2013), available here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/ file/262994/AG_Disclosure_Guidelines_-_December_2013.pdf at para. 25 [last accessed August 2020]. 86 Para 5.8. 87 Code of Practice. 88 L. Shorter, cited in K. Slater, ‘Post-conviction disclosure regime “not fit for purpose,”’ 30 October 2018, available here: www.thejusticegap.com/miscarriages-of-justice-go-unidentified-anduncorrected-because-of-lack-of-transparency-around-forensics/ [last accessed August 2020]. 89 CPIA 1996, s7a. 90 Attorney General’s Office, Attorney General’s Guidelines on Disclosure, n 85, para. 72. 91 Nunn v Chief Constable of Suffolk Police [2015] A.C. 225.

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The ‘unknown unknown’ is of potentially exculpatory material that may be lying undetected in the unused material. As things stand, there is no procedure for reexamining this post-conviction or for allowing a convicted defendant access to the unused material. The CPS guidance states a ‘review may be required as a consequence of a trigger, which requires the reconsideration of the safety of convictions, or decisions not to proceed, and an assessment of whether justice is served by allowing such convictions, or decisions, to stand.’92 This means that those wanting to appeal find themselves in an impossible position; in order to obtain access to the material, they need to argue that it is likely to be relevant, yet it is almost impossible to demonstrate this without access to the material.

The Criminal Cases Review Commission and disclosure One of the few proposals of the RCCJ that was welcomed was that a body be established to investigate claims of wrongful conviction and to refer appropriate cases to the CACD. The result was the first such state-funded body in the world, the CCRC.93 The CCRC has extensive statutory powers to gain access to material held by public and private bodies, including the police, notwithstanding claims of data protection, national security or public interest immunity, and to require the police to carry out investigations on its behalf.94 The CCRC can only refer a case back to the appropriate court if it considers there to be a real possibility that the conviction would not be upheld ‘because of an argument, or evidence, not raised in the proceedings which led to it or on any appeal or application for leave to appeal against it.’95 Once the case has been referred, the CCRC plays no further part; it does not act for the appellant. The CCRC started work at the same time as the disclosure provisions came into force. In his history of the first ten years of the Commission, Laurie Elks explained: What the new [CPIA] scheme lacks (and the previous ‘kitchen sink’ disclosure scheme provided), is an overarching ability for the defence to review the entirety of the material and to make its own judgment as to what undisclosed material is helpful and significant. It has been suggested that in these circumstances the Commission, with its special powers of discovery, might have an important role in uncovering non-disclosure and acting as longstop in cases where lack of disclosure has given rise to miscarriages of justice.96

92 CPS, Reviewing Previously Finalised Cases: CPS Policy (2015), available here: www.cps.gov.uk/ legal/p_to_r/reviewing_previously_finalised_cases_-_cps_policy/ [last accessed August 2020]. 93 Criminal Appeal Act 1995, Part II. 94 Criminal Appeal Act 1995, ss17–22. 95 Criminal Appeal Act 1995, s13(1)(a). 96 L. Elks, Righting Miscarriages of Justice? Ten Years of the Criminal Cases Review Commission (London: JUSTICE, 2008), 306.

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There have been notable trends in disclosure-based referrals by the CCRC. Elks found that non-disclosure had been a major feature in around 15% of referrals to the CACD97 but that the nature of these referrals had changed. In contrast to some of the older cases, which involved the deliberate withholding of information, he found only one example of the CPIA being used to withhold possibly undermining material.98 It was the third most common reason for referring convictions to the CACD in 2000.99 It dipped in the mid-noughts,100 but by 2010–11 it was ‘the most common basis of referrals’101 again. In the next three Annual Reports, it was noted that disclosure was ‘a recurrent theme’102 in Commission referrals. It was the ‘single most frequent cause’ by 2015–16.103 No figures were given the following year, but the Chairman’s valedictory introduction reiterated his concerns. It is surprising that it is only mentioned in passing in the 2017–18 Report. The Commission stated in 2018 that ‘we estimate that in the last ten years, around one in five CCRC referrals where convictions were quashed were based on grounds of non-disclosure.’104 The CCRC has been criticised for not being more proactive in its investigations.105 There have been allegations that it has ‘demonstrated a clear reluctance to seek further testing of materials (to save time and money and prevent “fishing expeditions”) and will ordinarily only seek disclosure of unused material when it may serve to demonstrate an applicant’s innocence.’106 It is unfortunate that the only empirical, detailed study of the Commission’s work, which largely rejects the more extreme criticisms of the organisation, did not examine disclosure as a discrete category.107 There have been examples of the CCRC failing to find relevant material, and it apologised to Victor Nealon for not identifying such material in his first application.108 Elks argues that it is unrealistic to expect the CCRC to routinely comb through the unused material; were it to do so, its output would grind to a halt. He cautions

97 98 99 100 101 102 103 104 105 106 107 108

31 out of 210 cases. Ibid. 309–311. Ibid. 317. Annual Report, 1999–2000, para 2.4. Ibid. 14. Ibid. 5. Criminal Cases Review Commission, Annual Report and Accounts, 2012–13, 18. Criminal Cases Review Commission, Annual Report and Accounts, 2015/16, 7. ‘Disclosure and the CCRC,’ 28 September 2018, available here: https://insidetime.org/disclosureand-the-ccrc/ [last accessed August 2020]. M. Naughton, The Innocent and the Criminal Justice System: A Sociological Analysis of Miscarriages of Justice (Basingstoke: Palgrave Macmillan, 2013). C. McCartney and N. Speechless, (2015) ‘The Supreme Court, post-conviction disclosure and ‘fishing expeditions’: R (Nunn) v Chief Constable of Suffolk Constabulary & Anor [2014] UKSC 37.’ 19(2), E &P, 120–126, 125. Hoyle and Sato, supra n 80. J. Robins, ‘Justice watchdog sued by wrongly convicted man who spent 17 years in prison for attempted rape,’ Independent on Sunday, 15 March 2015, available here: www.independent.co.uk/ news/uk/home-news/justice-watchdog-sued-by-wrongly-convicted-man-who-spent-17-years-inprison-for-attempted-rape-10108752.html [last accessed August 2020].

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that ‘[t]here is no certainty, therefore, that the Commission’s investigations will pick up non-disclosure where it has taken place.’109 He noted the procedures in place for obtaining material routinely in certain categories of case, such as claims to the Criminal Injuries Compensation Scheme, and concluded that ‘[i]n principle, the Commission’s processes should, therefore, lead it to take a fair and considered view of prosecution material which it needs to make in any particular case.’110 The CCRC recently undertook a review of its policies in relation to disclosure. It identified some ways of improving, such as gaining access to CPS and Crown Court digital case management systems. It also produced a guidance note for applicants and potential applicants who think that disclosure may be an issue in their case.111 Overall it concluded as follows: The cases reviewed demonstrated that the CCRC’s current policies regarding disclosure and exceptional circumstances were appropriate. Whilst the CCRC keeps under review its case working policies, no evidence was identified to indicate that current CCRC policies and guidance regarding disclosure, witness credibility and exceptional circumstances require revision. In the absence of evidence there is no reason to consider that policies are acting to applicants’ detriment.112

Why innocence projects are still not the answer Greenwood and Eady argue that the appellate system is predicated upon what they term ‘The Nunn fallacy,’113 named after the Supreme Court decision that restricted the defence’s access to material post-conviction). This presumes that there is an effective system of pretrial disclosure, that there is an effective pretrial defence investigation and that the CCRC is an effective safety net for disputed disclosure requests. They contend that if there is no certainty that the pretrial disclosure process has worked effectively, defendants ought to have a broader right to postconviction disclosure to catch anything missed.114 They suggest that ‘[a] more “open” justice process could be important for sustaining the operation of studentbased, university criminal appeal projects; rightly or wrongly, such projects are becoming increasingly relied upon for post-conviction help in our resource-starved

109 Ibid. 307. 110 Ibid. 308. 111 ‘Non-disclosure in criminal prosecutions: Guidance for applicants to the CCRC,’ available here: https://s3-eu-west-2.amazonaws.com/ccrc-prod-storage-1jdn5d1f6iq1l/uploads/2018/10/CCRCDisclosure_guidance_for_applicants.pdf [last accessed August 2020]. 112 CCRC, Report on Phase 2 of the CCRC Disclosure Review (2019), available here: https://s3-euwest-2.amazonaws.com/ccrc-prod-storage-1jdn5d1f6iq1l/uploads/2019/07/CCRC-2242989-v1CCRC-2232838-v3-JH_formatted_draft_disclosure_report.pdf [last accessed August 2020]. 113 See n. 83. 114 H. Greenwood and D. Eady, ‘Re-evaluating post-conviction disclosure: A case for “better late than never”’ (2019) International Journal of Law, Crime and Justice Journal, 59, 100328.

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system, yet continue to face countless barriers in carrying out post-conviction investigations.’ As I have argued elsewhere, ‘[i]nnocence [p]rojects are a pragmatic, albeit inadequate, response to a pressing need; few would recommend them as a prototype.’115 There are practical and policy-based concerns about extending their role in response to the disclosure crisis. Suggesting that volunteers could do the work of the CCRC underplays the complexity of the task and offers an easy solution for a government looking to cut public spending on criminal justice even further.116 The Innocence Project was founded in the United States of America in 1992. It ‘exonerates the wrongly convicted through DNA testing and reforms the criminal justice system to prevent future injustice.’117 Innocence Projects were brought to the United Kingdom in 2004 (INUK)118 and 38 projects were established over the next decade. The projects were very successful in terms of generating publicity about miscarriages of justice and seemed to capture the interest of many, primarily law, students. Their practical benefit to would-be appellants has been almost nonexistent,119 however, and the movement was disbanded after what might be most kindly termed as ‘musical differences.’120 Some clinics continue to operate under similar principles but different names. Much of the allure of these projects is around the certainty of innocence; the co-founder of the Innocence Project has described the work as ‘the civil rights movement of this generation.’ In her assessment of the work of INUK, Greenwood notes that ‘Innocence projects were not just educational clinics helping prisoners who sought to appeal their conviction, but they were underpinned by an ideology driven by reforming the criminal appeal system.’121 There were few, if any, pragmatic proposals, however. The focus on innocence is also potentially misleading for students, who, if they enter practise will need to focus on the more mundane, but more protective, standard of safety. Undisclosed material rarely contains exonerating evidence, such as the forensic evidence in the case of Stefan Kiszko. It is more common for the material to cast doubt on the safety of the conviction. As Greenwood and Eady recognise, the ‘obvious limitations of funding restrictions, student inexperience and the blurring of educational, academic and

115 H. Quirk, ‘Identifying miscarriages of justice: Why innocence in the UK is not the answer’ (2007) Modern Law Review, 70(5), 759, 772. 116 Ibid. 762. 117 The Innocence Project, ‘About,’ available here: https://www.innocenceproject.org/about/ [last accessed August 2020]. 118 C. McCartney and M. Naughton, ‘The innocence network UK’ (2004) Legal Ethics, 7, 150. 119 INUK had no successful referrals. The Cardiff University Innocence Project has since worked on two successful appeals, R v Dwaine George [2014] EWCA Crim 2507; R v Jones [2018] EWCA Crim 2816. 120 J. Robins, ‘The end of innocence,’ 25 November 2014, available here: www.thejusticegap.com/ end-innocence/ [last accessed August 2020]. 121 H. Greenwood, ‘Innocence projects: Losing their appeal,’ in C. Ashford and P. McKeown (Eds.), Social Justice and Legal Education (Newcastle: Cambridge Scholars Publishing, 2018) pp. 141–168.

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quasi-practitioner roles, student projects also face structural barriers, which (in part) explain their lack of impact.’ Greenwood and Eady concede that the lack of regulation means that student involvement would not be countenanced in most professions. They conclude, however, that the paucity of post-conviction assistance means that their powers should be enhanced, to give equal rights with communicating with official bodies who currently will only correspond with legal professionals. Enthusiasm is no substitute for expertise, however, and there are significant risks with inexperienced, unqualified students doing this kind of work, both for them and the applicants. Another significant factor, that Greenwood and Eady overlook, is the rights of witnesses. Legal professionals have to consider the rights to respect for one’s ‘private and family life, his home and his correspondence’ of other parties under Article 8 of the European Convention on Human Rights. It is, quite properly, inconceivable that the police or CPS would give an innocence project access to material that may contain personal information about a complainant, such as medical records or mobile transcripts. Nor should they share information that might compromise the safety of somebody who has given information to the police. Influential campaigners, including the Association of Police and Crime Commissioner,122 the Victims Commissioner and Amnesty International,123 are campaigning against the ‘digital strip search’ of the police asking for complainants’ mobile telephones in sexual offence investigations. This could significantly harm suspects rights. Claims have been made that mobile downloads will be given wholesale to the defence. Suggestions that such material could be made available to innocence projects could be even more inflammatory. Greenwood and Eady draw upon the Open Justice Charter,124 which demands: access to recordings of trial proceedings, police documentation, physical evidence for scientific testing, access to journalists for prisoners and improved access to materials obtained or produced by the CCRC. The Centre for Criminal Appeals began a campaign around disclosure, inaccurately named #ShowUsTheEvidence (rather than the less catchy #ShowUsTheUnusedMaterial). It argues that convicted defendants should have the right to access all non-sensitive material held by the police and CPS on their case and to instruct special counsel to inspect sensitive files.125 It has proposed an Independent Disclosure Agency to review all material

122 J. Doward, ‘Don’t seize rape complainants’ mobiles, say police bosses,’ The Observer, 4 May 2019, available here: www.theguardian.com/society/2019/may/04/police-commissionerscriticise-rape-victim-data-request-form [last accessed August 2020]. 123 ‘Campaigners call for reform of “digital strip search” policy,’ available here: www.police professional.com/news/campaigners-call-for-reform-of-digital-strip-search-policy/ [last accessed July 2019]. 124 Justice Gap, ‘Hidden: The limits of open justice,’ Proof No 2 Justice Gap Magazine (2017), pp. 68–71. 125 UK Government and Parliament, ‘Petitions: Pass a new law on access to evidence so the wrongly convicted can get justice’ (June 2019), available here: https://petition.parliament.uk/ petitions/235247 [last accessed August 2020].

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gathered in a case, strip out any genuinely sensitive material and provide an identical level of disclosure to both prosecution and defence. This would answer some of the criticisms of delegating the work to unqualified amateurs but is unrealistic in the current financial climate, and risks creating another level of bureaucracy in which potentially relevant material can be lost. The CCRC considers it has a responsibility to report its findings to improve the functioning of the criminal justice system. An organisation needs sufficient size and stature to do this. Amateur groups may have occasional successes; the judges in Jones praised the work of the Cardiff Innocence Project, but these projects are never going to have the status of the Innocence Project in New York.126 The CCRC has taken its responsibility seriously in relation to disclosure. The CCRC has been involved with improving police and CPS practice in this area, advising on the Attorney General’s guidelines on disclosure and the Judicial Protocol on the Disclosure of Unused Material in Criminal Cases127 and providing training through the College of Policing.128 In 2016, then-Chairman Richard Foster wrote to the Director of Public Prosecutions, the Attorney General and the National Police Chief’s Council drawing attention to the problems with the non-disclosure problem and its costs.129

Conclusions As noted at the start, the criminal justice system is at a ‘critical juncture.’A decade of funding cuts, the challenges of disclosure and Britain’s departure from the European Union are some of the main challenges that the Royal Commission will have to address. Advocates for reform need to consider what is feasible and desirable. It is important to note just what a ‘remarkable innovation’130 the CCRC was. The decision to pass such cases to an independent body received widespread approval at the time, but there was nothing inevitable about its formation, as the resistance to following suit in other countries has shown. The recent government Tailored Review shows that there are no guarantees regarding its continuance or independence.131 The CCRC has suffered the biggest percentage budget cut of any criminal justice agency. Since it started, its annual intake has almost doubled (applications now average 1,500 a year), and its budget in real terms has more than halved. There are significant risks that at a time of swingeing budget cuts, offers by innocence

126 127 128 129

[2018] EWCA Crim 2816. 2013–14, p. 33. p. 35. CCRC Medical Records: Casework Policy, available here: https://ccrc.gov.uk/text-of-letter-sent5-july-2016-from-ccrc-chair-richard-foster-to-dpp-attorney-general-and-others/ [last accessed August 2020]. 130 Quirk n 6, 776. 131 Question 2 of the Call for Evidence asked, ‘In your opinion, are the functions of the CCRC still required?’ available here: https://assets.publishing.service.gov.uk/government/uploads/system/ uploads/attachment_data/file/777176/tailored-review-of-the-criminal-cases-review-commission. pdf [last accessed August 2020].

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projects to take on this work, however well-intentioned, could lead to the demise of the Commission. Some of the criticism of the CCRC relate to it being a disinterested rather than partisan body.132 I have argued previously that there are strengths to this approach,133 but when it comes to disclosure, it may be that a more purposive approach is needed. Attention to date has focused on the occupational cultures of the police, defence and prosecutors. The time may have come to reconsider the working practices of the CCRC in relation to disclosure. Given the unique problems caused by non-disclosure, the CCRC may have to revise its methods. Greenwood and Eady offer a radical option that is fraught with risk. It is impossible for any organisation to replicate the enthusiasm of a group of young idealists, but the specific problems of disclosure may require the Commission to adopt their more proactive approach to searching for undisclosed evidence. There will, of course, be costs to this – more resources will be required, cases will take longer to investigate or the remit of the Commission must be narrowed. Some will always be suspicious of a state-funded body undertaking such work. Zalman describes the innocence movement as ‘reflect[ing] an American penchant for grassroots solutions to contentious issues that involve government impropriety.’134 There can be risks to it, but on balance, the expertise and resources required to do this work well and at full scale require a secure institution. Amateur sleuths have great popular appeal, but as a solicitor once remarked, referencing the crime-solving powers of The Scooby Doo Gang, ‘This work is too important to be left to a bunch of meddling kids and a Great Dane!’135

132 See, for example, the Empowering the Innocent campaign; ‘established as a targeted campaign for the urgent reform of the CCRC or for it to be replaced with a new body that is fit for the purpose of assisting innocent victims to overturn their wrongful convictions.’ available here: http:// michaeljnaughton.com/?page_id=3652 [last accessed August 2020]. 133 H. Quirk, ‘The criminal cases review commission: Governing in prose,’ in J. Robins (Ed.), Wrongly Accused: Who Is Responsible for Investigating Miscarriages of Justice? (London: Wilmington Publishing, 2012) pp. 30–33 (Solicitors Journal Justice Gap Series). 134 M. Zalman, ‘Criminal justice system reform and wrongful conviction: A research agenda’ (2006) Criminal Justice Policy Review, 17, 468–492, 471. 135 Quirk n 132, 33.

Final thoughts

This book has sought to critically assess what drives the persistent and impactful problem of disclosure, in the hope that long-term solutions can be implemented. To this end, a range of contributors – adopting varied perspectives and methods of analysis – explore this perennial problem across the six chapters of this collection. They establish, in an academically rigorous manner, that disclosure remains a challenge for all practitioners at every stage of the criminal process, driven by complex legal, cultural and sociological issues. Chapter 1 proposed that the development of post-investigation disclosure characterises a long-term shift away from traditional adversarial approaches to criminal justice and towards an increasingly ‘managerialised’ process. It argued that this now entrenched culture of efficiency and cooperation has been to the detriment of crucial adversarial safeguards for defendants. Moreover, despite disclosure requirements applying to both parties, the defence have consistently been criticised for failures by courts, whilst the prosecution has escaped the same levels of censure – giving the impression of a regime to which only one side adhere to. This is misleading, as there is little difference in rates of compliance, suggesting an unfair emphasis by courts on defence failures. Ultimately, the chapter argues for courts to spearhead change: by accepting core adversarial values which, at times, drive lack of disclosure; or by truly treating disclosure failures with equal emphasis. Chapter 2 examined pre-charge disclosure, its relationship to the right to silence and consideration of the implications for defence lawyers. Whilst noting that limited police disclosure obligations grant them the balance of power, it remains imperative that suspects and their lawyers push for as extensive an account of the case as possible. This will structure both advice at the police station and the future direction of a case – particularly in relation to the risk of adverse inferences from silence. It highlighted how, post-austerity, police capacity to investigate has been compromised, with a consequent impact on the ability of suspects and lawyers to fully understand the case via disclosure. Notwithstanding this reality, the chapter concluded that sustained and zealous pursuit of disclosure remains vital, not only so that clients can receive the best possible advice but so that the police will continue to feel obliged to pursue all reasonable lines of enquiry. Chapter 3 focused on adversarial culture in policing and its influence on disclosure practice. Despite the prevailing conclusion that the disclosure regime is

Final thoughts 99 ineffective in practice (if not in principle), repeated attempts to address this have failed to deliver long-term change. The chapter suggested that this may be due to the entrenched nature of adversarial culture in policing, which has been largely overlooked in prior reforms. It highlighted the inherent conflict between a balanced, objective disclosure process and embedded accusatorial tendencies, arguing that officers need to be able to ‘step back’ from adversarial instincts to be able handle disclosure properly. However, it also accepted the difficulty in achieving this, considering the importance of adversarial ‘mission’ to practical policing, as well as inhibitors of change such as resources and a risk averse culture. It therefore concluded that greater awareness of and reflective training on the risks of adversarial culture to effective disclosure practice – coupled with institutional support – are needed to deliver sustainable results. Chapter 4 examined the impact of police culture on disclosure practice from a sociological perspective. It argued that resistance to change in this regard is largely shaped by police organisational identity, compounded by internal and external perceptions of what policing is and should be within society. The chapter suggested that such entrenched cultural identities act as a barrier to change, stifling attempts to neutralise polarised, partial and biased approaches to investigation and disclosure. Instead, traditional, simplified categories of ‘good’ and ‘bad’ stakeholders in the criminal justice process prevail, seriously impacting on disclosure practice – which requires the police to consider ‘the other side’ of a case. Like other chapters, it concludes that simply changing procedures and engaging in more training is not enough to establish long-term change, arguing that a deeper examination of police culture is needed to deliver a redefined identity – and ultimately deliver better, fairer practice. Chapter 5 also adopted an interdisciplinary approach to police culture and disclosure practice, arguing that sustainable change has – thus far – been elusive because of a failure to properly examine the behavioural drivers behind it. Whilst acknowledging the unprecedented multi-agency cooperation delivered by NDIP, the chapter suggested that this – like other previous reform initiatives – is a ‘crisis response’ based on knowledge which does not dig deep enough into the drivers behind the disclosure problem. To this end, the chapter proposed the use of a behaviour change model posited by Michie and others, focusing on the capability, opportunity and motivation of officers. Using this model as an analytical tool, the chapter detailed early empirical findings which suggest that behavioural drivers represent a significant constraint on meaningful change, particularly in relation to front-line officers given unfamiliar investigative responsibilities. It concluded that spending time on diagnosis of the disclosure ‘problem’ would shape better solutions, making a number of suggestions as to the next steps of this process. Chapter 6 focused on the post-conviction stage, and the importance of disclosure in this regard. The chapter examined the role of the CCRC and its role as an ‘innovative’ evolution in the field of miscarriages of justice. Yet the chapter also emphasised the importance of disclosure in the work of the CCRC as an effective watchdog as well as other factors like resourcing and workload. The chapter outlined how, thus far, the CCRC has taken a laissez faire approach to seeking

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disclosure but argued that in light of the unique importance of non-disclosure in miscarriages of justice, a more proactive and purposive approach may now be needed. However, the chapter also recognised that this may be challenging in the modern context of increased workload, a smaller budget and a relatively wide remit. Highlighting that, and notwithstanding their merits, the chapter held that innocence projects are not well placed to fill the current vacuum. It concluded that it is essential that a secure, well-funded institution – staffed with appropriate expertise – be created in order to properly handle disclosure in the post-conviction context. This collection has sought to examine novel, varied and innovative perspectives on the disclosure ‘problem,’ in the hope that more effective and more sustainable solutions can be found. We would argue that the chapters in this volume provide such perspectives and offer alternative ways of thinking about both the problem itself and the changes that might be implemented. Moreover, it does so by engaging a range of stakeholders and commentators, and by uniting these voices in one book. We hope that this collection stimulates new thinking about why disclosure remains a difficult and delicate area of practice and inspires others to embrace alternative answers to the issues discussed.

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Index

abuse 4, 6, 13, 21, 28, 50, 69, 82, 87 access 13, 16, 39, 51, 55, 72, 77, 80, 84, 86–96, 94, 95, 96, 97 accused 18, 20, 24, 28, 36, 81–85, 87, 97 ACPO 59n2 acquit 22; acquittal 4, 35, 82, 90; acquitted 86; acquitting 8, 22 Adlam, Robert 54n57 admissibility 6; admissible 89 adversarial 5, 8–9, 28, 32, 35, 36, 38, 39, 43, 44, 45, 48–49, 51–52, 54, 56–57, 62, 66, 81, 84–85, 87, 98–99; adversarialism 8, 18, 35, 36, 42, 44, 48, 54, 87 adverse 11, 14–15, 19, 23, 24, 31, 39, 98 advice 19, 21–25, 27, 31–32, 37n29, 38n35, 39n36, 39n38, 74n48 advocacy 35; advocate 60; advocates 96 alibi 1, 4, 6, 85 ambush defence 5, 10, 13, 15, 23, 83 appellant 11–13, 91; appellants 89, 94; appellate 81, 87, 89, 93 Armeli, Stephen 54n53 arrest 9, 26; arrested 23, 26 Ashford, Chris 94n121 Aspinall-Miles, Mary 29n70 Attorney General 1, 26, 28–29, 30, 31, 34–35, 37, 42, 47, 81, 88, 90, 96 Auld, Robin 3n3 Baban, Adrianna 41n48 Bacon, Matthew 38n31 bail 26, 27, 38 Baldwin, John 84n30 Banton, Michael 47 Barrett, David 17n90 Bayerl, P. Saskia 41n48 Begum, Shahida 13n62 bias 52–53, 56, 62, 66, 68, 72, 86, 99; biased 49, 52, 56, 66, 99; biases12, 48, 53

Birdi, Kamal 41n48 Bisogni, Fabio 41n48 Bittner, Egon 47n14 Bowcott, Owen 26n50, 41n51 Bradford, Ben 48n20 breach 11, 12, 28; breached 28 Bridges, Lee 84n30 Bromley, Max 48n21 Brown, David 38n35, 87n63 Bucke, Tom 38n35 Caldero, Michael 38n32 Calvert-Smith, David 86 canteen culture 50n32 Cape, Ed 26n55, 27n59, 37n29, 39n38 Capoccia, Giovanni 80n1 case management 7, 11, 14, 18, 39, 66, 87, 93 Casey, Louise 33n5 caution 20, 21, 23, 90; cautioning 25; cautions92 Caveney, Nick 48n19, 50n32 CCTV 16, 25, 27, 42 Chakrabarti, Shami 83n25 Chalmers, James10n45 charge 22, 24, 27–30, 31, 74, 87, 98; charged 5, 10, 26, 81–82; charging 30, 61 Chataway, Shannyn 52n48 Choi, Kwan 40n40 client 15, 17–18, 21–25, 27, 31, 38; clients 18, 24, 27, 89 co-accused 13, 85 Cochran, Mary 48n21 Cockcroft, Tom 55, 55n60 cognitive 37, 45–46, 49–51, 53, 57, 73, 76–77 complainant 87, 95; complainants 30, 41, 95 complex 23, 25, 55, 59–60, 70–72, 76, 98

112

Index

Computer-Aided 68 computer-systems 71 confession 5, 6, 9, 87 conflict 9, 11, 18, 35–37, 43, 45, 87, 99 conservatism 45, 47, 54–55, 57 conservative 49, 52 constable 20n4, 20n5, 40, 71, 74, 78, 90n91, 92n105; constables 49, 50n37, 68, 70; constabulary 33n7, 34n19, 86n56, 88n69, 92n106 convicted 15, 23, 25, 88, 90–91, 92n107, 92n108, 94, 95n125 cooperation 8, 10, 18, 39, 51n39, 52n47, 98, 99 cooperative 16, 18, 36, 37 cop 35n25, 48n20, 50n32, 52n47, 60, 63 Corker, David 90n84 corruption 38n32, 40, 51n42 cost 8, 15, 28, 81; costs 6, 12–13, 14, 89, 96, 97 Cox, Carol 56, 56n65 Criminal Cases Review Commission 89n80, 91, 92n103, 96n131, 97n133 cultural 32, 34, 36–38, 43–47, 49–56, 63, 68, 75, 98–99; culturally 54; culture 8, 17–18, 22, 32, 34–35, 38, 40, 42–43, 45–47, 49–57, 61–65, 67, 73, 75, 78, 87, 98–99; cultures 2, 6, 51–52, 54, 85, 97 Cunliffe, Ann 54n58 Curtis, Charles 10, 10n43 custodial 37n29; custody 8, 20, 22, 38n35, 90

efficient 3–5, 7, 14, 17, 18, 82 Elks, Laurie 91–92, 91n96 enforcement 14, 18, 33, 55 enquiries 29, 30, 69, 73, 84; enquiry 28, 29n68, 30, 41n51, 42n53, 45, 66–68, 72–73, 77, 84, 98 ethics 9n39, 10n43, 32n2, 38n32, 45n3, 48n21, 94n118 evidence based 41n48, 55, 57 exclude 13, 52; excluded 11, 16 exclusion 52 expertise 95, 97, 100 experts 1, 67

Damaska, Mirjan 36n27 debate 2, 5, 15n78, 29n70, 32, 54 Dennis, Ian 88n69 detained 39n36; detainee 22, 38n35 detective 20n5, 40n41, 47, 69–71, 74, 77; detectives70–71, 77 digital strip search 30n75, 41n51 disclosure 1–8, 11–12, 15–28, 30–67, 70, 72–73, 75–76, 78–97 Disclosure Guidelines 28n65 discontinuance 74n49, 90 DNA 27, 94 Doward, Jamie 95n122 Drew, John 50n34

Heifetz, Ronald 57n67 Henderson, Paul 81n11 HMCPSI 34, 46, 46n7, 59, 59n3, 61, 61n14, 61n18, 62n23, 63, 63n30, 65n34, 66n37, 67n39 HMIC 33n8, 34, 34n19, 41n49, 46n7, 48n22, 51n42, 70n44 HMICFRS 33n8, 66n37, 67n39, 69, 70n44, 77n55 Hodgson, Jackie 37n29, 39n38, 84n30 Hofstede, Geert 51n39 Holdaway, Simon 47n15, 75n50 homogeneity 45, 49–51, 53 Houchin, David 49n30 Howard, Michael 5, 15n77, 82n15, 83n26 Hoyle, Caroline 89n80, 92n107 Hughes, Gordon 3n1 Hyde, John 26n51

Eady, Dennis 80n5, 88n70, 93–95 effectiveness 3, 10, 16n88, 34n11, 40, 70n44, 71, 80, 88n66 efficiency 2, 3, 5n12, 5n17, 6n20, 8, 8n33, 10, 10n46, 22, 34n11, 34n16, 65n36, 80, 87, 88n66, 98

Farmer, Lindsay 10n45 Fenn, Emma 13n62 fingerprint 21, 86 fishing expedition 83 Flanagan, Ronnie 77n55 Fleming, Jenny 41n48 forensic evidence 23, 28, 31, 74, 94 Fouzder, Monidipa 27n57 game-playing 39 Garland, Fae 83n27 Graham, Es 53 Greenwood, Holly 80, 80n5, 88, 88n70, 93, 93n114, 94n121, 95, 97 Griffiths, Kerry 41n48 Gross, Lord Justice 28n62, 28n63, 32n3, 34n16, 88n69

inference 14, 23n27, 24; inferences 11, 14–15, 19, 23–25, 31, 39n36, 85

Index inquisitorial 23n26, 36, 62; inquisitorialism 36n27 instinct 37, 38; instinctive 38, 43; instinctively 39, 42, 43 interview 20–22, 24–25, 31; interviewed 20, 38, 39n36, 71 investigate 27, 29–30, 31, 45, 67–69, 72–73, 74, 91; investigated 70, 84, 86; investigating 19, 41n51, 59, 70, 72, 81; investigation 21, 25, 26, 27n61, 28, 31, 34n18, 35–38, 39n36, 43, 45n4, 46, 49, 56, 58–60, 60n20, 62n22, 66, 69–71, 72, 75, 77–78, 79, 81, 84, 86n56, 87n60, 90, 93, 98, 99; investigations 3, 20–21, 28–29, 34, 53, 58–60, 65, 67–72, 74, 76, 79–80, 84, 91–92, 94–95; investigative1, 19, 26, 29, 31–33, 43, 59–60, 62, 69–70, 72–73, 75–76, 78, 81, 99; investigator 21–22, 42–43, 68–69, 72, 75, 84, 90; investigators 28, 35, 38, 46, 65–66, 68, 70, 73–76, 84–85, 90 Jackson, John 15n76, 85n44 Johnston, Ed 2, 3, 19 juries 86; jurors 8; jury 9, 24–25, 28, 36, 85–86, 88–89 Kahn, William 54n53 Kelemen, R. Daniel 80n1 Kemp, Vicky 38n35, 39n37 Kinch, HHJ 34n16 Kirby, Stuart 56, 56n65 lawyer 17, 21, 24–29, 31, 34, 36–39, 41; lawyers 2, 13, 16, 17n90, 24, 27–29, 31, 34, 38–39, 41, 83, 84n30, 85, 98 leadership 51n38, 54n53, 55–56, 57n67, 61, 63, 79 Lefcourt, Gerald 9n40 Leng, Rodger 5nn15–16, 15, 15nn77–78, 82n19, 83n24, 85n43, 86n48 Leverick, Fiona 10n45 Leveson, Brian 10n46, 30, 30n76, 34n16, 65n36 Levi, Michael 4, 4n8, 15, 15n79 Livingstone, Ken 60n8 Loftus, Bethan 47, 54, 63n27, 64n33 Macpherson, William 48n17 managerial 15, 17, 18; managerialised 98; managerialism 8; managerialist 18 Marsh, Luke 9n36, 10n47, 16n87, 87n58

113

McCartney, Carole 92n106, 94n118 McConville, Michael 9n36, 10n47, 16, 16n87, 84n30, 86n48, 87n58 McEwan, Jenny 81n7 McLaughlin, Eugene 3n1 McRae, Callum 86n55 media 33n7, 34n17, 41n51, 45, 50n33, 51, 52n45, 54, 59n2, 62–63, 66, 77n55, 84n31, 86, 87n62 Minkov, Michael 51n39 miscarriage of justice 1–2, 18, 30, 40n42, 44, 80–81, 84–86, 90–91, 94, 99–100 mistake 41, 43–44; mistaken 29; mistakes 40–41, 43–44, 87 motivation 53–54, 56, 63, 65–68, 70, 74–75, 77, 99; motivational 46, 56, 75; motivations 35n25, 53 Muncie, John 3n1 Munday, Roderick 4n9 Myhill, Andy 48n20, 52n47 National Disclosure Improvement Plan 42n53, 45, 53, 60, 88 National Police Chiefs’ Council 35n24, 42n53, 45n5, 53n50, 88n67 Naughton, Michael 92n105, 94n118 Newburn, Tim 51n42 Niblett, John 81n10 Nicolini, Davide 54n55 NSPCC 50n33 occupational Culture 17, 47n15, 51, 56n65, 63n27, 85 O’Dair, Richard 9, 9n39 omnicompetent 59, 69 opportunity blockers 77 out of court disposal 27 Packer, Herbert 36n26 partisan 10, 36, 81, 83, 97; partisanship 9–10, 81 Pavlovic, Anita 84n30 Peel, Robert 52 Peelian Principles 33n5, 45 Plotnikoff, Joyce 6n23, 17n92, 34n15, 86n50, 88n69 post-conviction 1, 80, 88, 90–91, 93–95, 99, 100 pre charge 24, 25, 27n56, 28–31 pre trial 5n15, 15n77, 24, 80, 84 privilege against self incrimination 8, 11, 18, 31 public interest immunity 91

114

Index

quasi-inquisitorial 36 Quirk, Hannah 6n21, 15n76, 80n6, 83n20, 83n28, 84n29, 84n31, 85n44, 86n51, 87n57, 94n115, 96n130, 97n135 racism 48, 48n17 rape 40n41, 41n51, 62n19, 80, 87, 87n63 Redmayne, Mike 85n41 Reiner, Robert 49n25, 52n45, 63n28, 66n37 remuneration 28, 49n28, 50n35 representative 23, 24, 25, 28; representatives 24, 25, 28, 84, 84n39 resistance 37, 39, 41, 49, 54 Rhodes, David 11, 41n48 Riddle, Howard 34n16 right to silence 5n17, 6n20, 15n78, 18, 24, 38n35, 83n22, 85, 98 risk 27–31, 33, 37, 39, 40–41, 49, 54, 55, 80, 84–85, 89, 95–99 Roberts, Stephanie 89n73 Robins, Jon 26n52, 92n118, 94n120 Roskill Committee 4 Royal Commission on Criminal Justice 5n18, 6n20, 8n33, 82n18, 83n21, 88n69 safeguards 3, 8, 17–18, 31, 83 sanctions 5, 12, 14, 18, 88n69, 90 Sanders, Andrew 86n48 Sato, Mai 89n80, 92n107 Savin, Jennifer 87n64 schedule 72, 84–85, 87; schedules 66, 84–85; scheduling 41 Schein, Edgar 49n31, 51, 52 Schraer, Rachel 26n48 Shaw, Danny 80n4, 87n61 Shevda, Krystina 26n49 Skinns, Layla 38n35 Skogan, Wesley 54, 54n56 Skolnick, Jerome 47n14 Smith, Tom 2, 10n42, 32, 62n26, 63n29, 66n37, 86n48, 87n60 Sprack, John 85n42

stereotypes 47, 56; stereotypical 15; stereotyping 45 suspects19, 20, 22–23, 26, 27n57, 28, 35, 36, 38n35, 39, 42, 83, 95 Syed, Matthew 44n60, 50n37, 51n37, 56n66 Thomas, Garry 8n33, 55n62 Travers, Max 5n13 truth-seeking 32, 36–37, 39 Ungoed-Thomas, Jon 26n49 unused material 34n13, 42, 46n7, 59n3, 61n18, 66n37, 67, 81, 84, 85n45, 86n53, 87, 88n69, 89, 91, 92, 96 used material 17n92, 34n19, 42, 61n18, 67, 81, 85n45, 86n53, 87, 88n69, 89, 91, 92, 96 Vansteenkiste, Maarten 53n52 victim 56, 66, 68, 69; victimisation 52; victimised 36; victims 3, 8, 27n57, 30n74, 35, 36, 41n51, 50, 52–53, 56, 69, 86, 87n63 volume crime 46, 59n2, 60, 67, 68, 69n40, 70–71, 73–74, 76 vulnerabilities 39n36; vulnerability 52, 53n52; vulnerable 39n36, 53, 56 Wade, Kimberly 37n29 Wadham, John 82n12 Wainwright, Tom 13, 13n62 Westmarland, Louise 48n21 Wheller, Levin 73n46, 76n51 Winsor, Tom 49, 50 Woolfson, Richard 6n23, 17n92, 34n15, 85n47 wrongful convictions 81, 84, 86, 97n132, 97n134 Zalman, Marvin 97, 97n134 Zander, Michael 5, 5n19, 15, 81n11 zealous advocate 31, 98