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CPS Response to HMCPSI Review into the disclosure handling in the case of R v Mouncher and others

16/07/2013

CPS Response to HMCPSI Review into the disclosure handling in the case of R v Mouncher and others

Introduction

Lynette White was brutally murdered on 14 February 1988. In November 1990 Stephen Miller, Tony Paris and Yusef Abdullahi were convicted of her murder and sentenced to life imprisonment. In December 1992 the Court of Appeal quashed those convictions.

Almost 10 years later, advances in DNA techniques led to the arrest of Jeffery Gafoor who, in July 2003, pleaded guilty to the murder of Lynette White.

Mr Gafoor's conviction triggered an investigation into why and how the original defendants came to be arrested, charged and tried for the murder which Mr Gafoor admitted he had committed alone.

As a result of that investigation (known as Lynette White lll [LW3]), 19 individuals in two groups were charged with either perverting the course of justice or perjury. The first group was four civilian witnesses, three of whom (Leanne Vilday, Angela Psaila and Mark Grommek) pleaded guilty. The case against the fourth (Paul Atkins) was dropped on public interest grounds relating to his mental health.

The second group comprised of 13 police officers and two civilians. This group was split into two trials, the first of which (involving eight officers and the two civilians) began on 4 July 2011 and came to an abrupt end on 1 December 2011 after it was discovered that material known as D7447 and D7448 was missing. The prosecution acknowledged that this meant that the court could no longer have confidence in the process for recording, retaining and disclosing unused material.

An investigation to establish the receipt, movements and location of the material known as D7447 and D7448 was launched by the Independent Police Complaints Commission (IPCC).

In January 2012, the DPP asked Her Majesty's Crown Prosecution Inspectorate (HMCPSI), which is an independent statutory body, to review the handling of disclosure by the prosecution team (CPS lawyers and counsel from the self-employed Bar) in the case. Terms of Reference were devised and are set out in full in the HMCPSI Review.

On 17 January 2012, the material known as D7447 and D7448, which Swansea Crown Court had been informed had been destroyed, was recovered in the South Wales Police premises from which the police investigation had been managed.

On 22 May this year, HMCPSI concluded its Review and provided the DPP with a copy. Having read and carefully considered the Review, the DPP has decided that it is in the public interest to publish it in full, without any alteration or redaction. The CPS has an obligation to tell the public what went wrong, to account for it and to explain how matters are going to be ordered in the future to avoid similar problems.

This statement summarises the main findings and sets out the CPS response, but three matters should be made clear from the outset:

  1. The CPS accepts in their entirety the findings and recommendations set out in the HMCPSI Review. In particular, it accepts the finding that despite the determination and hard work of the prosecution team (CPS staff and counsel from the self-employed Bar), the approach to disclosure in this case did not consistently meet the necessary standards (para.10.2). The CPS regrets the shortcomings identified by HMCPSI and accepts the impact that these shortcomings must have had on all concerned.
  2. The CPS welcomes the finding in the Review that, although mistakes were made, HMCPSI found no evidence that prosecutors or police disclosure officers made decisions for any improper reason. We also welcome the finding that the mistakes represented a very small proportion of all the disclosure decisions that were made and many were discovered and corrected as a result of quality assurance exercises (para.1.9 and 10.14).
  3. At the same time as requesting HMCPSI to review the handling of disclosure in this case, in January 2012, the DPP ordered a complete overhaul of the CPS approach to disclosure in serious and complex cases such as this. That overhaul was completed earlier this year and a new regime is now in place. It came into force on 1 March 2013. The DPP has discussed the new CPS regime with the Senior Presiding Judge, Lord Justice Gross, and it is intended to complement and support his Disclosure Case Management Initiative launched on 3 June this year.

Summary of main findings and CPS response

Role of managers in the casework division and the need for a project management approach

Finding:

The HMCPSI Review found that managers in the casework division should have played a more active role at the beginning of the case. This would have given them a clearer idea of the resources likely to be needed and should have led to a more considered approach to the selection of CPS staff and the counsel team to work on it (para.10.9).

The HMCPSI Review also found that the prosecution team should have adopted a project management approach. The weaknesses in the arrangements in place in the case resulted in leading counsel, Mr Dean QC, and CPS lawyers being poorly sighted on important issues and the quality assurance exercises did not correct all errors (para.10.11).

Response:

The CPS accepts the recommendation from HMCPSI that at the outset of a potentially large, complex or sensitive case, a CPS lawyer with responsibility for the allocation of resources should meet the police to ensure that the CPS has a full understanding of its implications and to enable the investigators to explain their needs, including the likely burden of disclosure.

Under the new CPS regime for handling disclosure in serious and complex cases, since 1 March 2013, a Prosecution Strategy Document with a Risk Register is mandatory in all serious and complex cases. In addition, a CPS Case Management Panel must be held in all such cases. The Panel must consider the Prosecution Strategy Document with a Risk Register and the reviewing lawyer must report to the Panel on resources. Actions required by the Panel must then be recorded in the Prosecution Strategy Document and acted upon.

In addition, the CPS has introduced Disclosure Gateway Review prosecutors in serious and complex cases. These specially appointed reviewers are independent of the team responsible for the case in question. They must be nominated by a Chief Crown Prosecutor and approved by the Chief Operating Officer.

The Disclosure Gateway Review prosecutor will inspect the key documentation including review notes, MG3s (charging decision forms), Advices, the Case Summary, the Prosecution Strategy Document (including the Risk Register), the disclosure schedules, any disclosure instructions to counsel, notes of disclosure conferences, the defence case statement, any section 8 applications and notes of the Case Management Panel meetings. The reviewer is then required to interview the reviewing lawyer and the Unit/CCU Head and to explore all relevant disclosure issues to assure themselves that the reviewing lawyer has identified the disclosure challenges properly and has managed disclosure and case progression effectively.

A Disclosure Gateway Review report should be written up with 14 days and shared with the Chief Crown Prosecutor for the Area in question or the Heads of the Casework Division in question and with the Chief Operating Officer. These reports will be used to inform the line management quality assurance process, the Case Management Panels and studied to bring out best practice and lessons to be shared.

The instruction of counsel

Finding:

The HMCPSI Review found that the team of counsel from the self-employed Bar instructed in this case did not have sufficient collective experience for the very unusual burdens placed on them by a case which was extremely difficult to prosecute. Mr Dean QC was a relatively new Queen's Counsel, but the Review doubted whether anyone could have led such an inexperienced team in such a voluminous and challenging case with the degree of supervision and management required. More attention should have been paid to the requests for the instruction of an additional experienced junior (para.10.10).

The Review found that despite the considerable ability of junior disclosure counsel, the size and sensitivity of the case required someone with considerably more experience (para.5.39). HMCPSI observed that the instruction of very junior counsel to act as disclosure counsel is not advisable, particularly where substantial experience of Crown Court trials is necessary (para.5.40).

Response:

The CPS accepts that the responsibility for instructing suitably experienced counsel from the self-employed Bar rests with the CPS. We also accept that, in future, the CPS should move away from the concept of a stand-alone disclosure junior. The new CPS regime for handling disclosure in serious and complex cases now makes it clear that:

  1. Only suitably experienced, competent and capable counsel should be appointed and that the reviewing lawyer must ensure that all counsel are familiar not only with the applicable law and procedure but also the CPS policy and guidance on disclosure.
  2. CPS instructions to counsel must be explicit as to their role and responsibilities and counsel must accept the role and responsibilities.
  3. A conference must take place at the outset of a case to ensure counsel are clear about their role and understand what is being asked of them.
  4. Regular updates from counsel must be provided to the reviewing lawyer, regular conferences must be held to monitor progress and written advice must be provided on key issues.

Managing the defence approach to disclosure

Finding:

The HMCPSI Review found that the prosecution team should have been more robust in managing the defence approach to disclosure. There were about 6,000 defence requests for secondary and continuing disclosure (para.10.5). Many offered little by way of justification for seeking the items mentioned. Some were repeated with little additional information. Whilst the prosecution repeated its requirement for the request to be justified, prosecutors could have raised the matter sooner with the trial judge as an issue for submissions at one of the pre-trial hearings or by inviting the defence at the hearings to identify specific or problematic disclosure issues. Alternatively, the prosecution might have invited the defence to make an application to the court under section 8 CPIA. The latter approach might well have produced a fuller justification for the request in the application itself or in a skeleton argument to support it. The prosecution's efforts to avoid troubling the court with these matters was ultimately counterproductive (para.10.13).

Response:

Under the new CPS regime for handling disclosure in serious and complex cases, the Prosecution Strategy Document and Risk Register will set out how the prosecution will manage the defence approach to disclosure. However, the CPS recognises that key to the improvement of the approach by both prosecution and defence to disclosure is the early involvement of the trial Judge. To that end the CPS strongly supports the Disclosure Case Management Initiative launched by the Senior Presiding Judge on 3 June this year.

The Senior Presiding Judge's initiative aims to ensure that:

  • The prosecution consistently deliver a high standard of case preparation;
  • The courts accept that cultural change is needed to support this;
  • The Judiciary are fully engaged with case management; and
  • The defence community are encouraged to support the aims and engage effectively.

The Disclosure Case Management Initiative will be led by the Resident Judge, on behalf of the Senior Presiding Judge, in the following four Crown Courts: Birmingham; Manchester Crown Square; Kingston upon Thames; and Southwark.

The process that is being piloted will include the requirement that all defence requests or suggestions relating to disclosure will need to be set out on an approved form. This is to avoid the confusion that can arise when requests are made in a myriad of different ways, e.g. by telephone, email, letter (often in standard form, without reference to the particular needs of the case) or orally at court. This document is to be served in each instance on the prosecution and the court.

Adopting the right approach to disclosure

Finding:

The HMCPSI Review found that the prosecution team adopted a narrow and over analytical approach to disclosure. While prosecutors have been urged by the courts to adopt a thinking approach to disclosure, this can go too far. They should not over analyse the potential defence case(s) and certainly should not make judgments about the wisdom of the defence pursing a line of defence that is apparent from the case papers (para.10.5). Whilst many of the mistakes or oversights in the case did not disadvantage the defence or were capable of correction - and corrected - during the trial, their cumulative effect enabled the defence to undermine confidence in the disclosure process. This was also a failure of case management, particularly the lack of supervision of (inexperienced) disclosure counsel's work. It is important that sufficient resource is devoted to disclosure to minimise the number of minor errors as well as to ensure that all defence themes - including those not articulated but apparent from caution interview, correspondence and other sources - are identified and taken into account when making disclosure decisions (para.10.7).

Whilst many of the mistakes or oversights in the approach to disclosure did not disadvantage the defence or were capable of correction - and corrected - during the trial, the significance of the failure, until the trial was in its third month, to disclose notes of police and CPS contacts with key witnesses (and the absence of notes for some meetings) was, however, substantial and attracted judicial criticism. (para.1.5).

Response:

The CPS accepts HMCPSI's recommendation that the CPS Disclosure Manual should explicitly state that, where direct communication with victims meetings occur before a case is finalised, CPS notes of them should be agreed as far as possible and enter the disclosure process through the police disclosure officer. We also accept the recommendation that at the primary disclosure stage, the prosecution should provide to the defence and the court a summary of the disclosure processes adopted, including a clear description of and the rationale for the parameters employed in the identification of undermining or assisting material.

Under the new CPS regime for handling disclosure in serious and complex cases, the Prosecution Strategy Document not only reminds prosecutors of the correct approach to disclosure but also requires the approach to disclosure taken in the particular case to be clearly set out. That requirement allows the Case Management Panel to understand the approach taken and enables the Disclosure Gateway Review prosecutors to test the approach with the reviewing lawyer.

In addition, the Disclosure Case Management Initiative launched by the Senior Presiding Judge on 3 June this year requires the prosecution to provide to the Court and regularly update a Disclosure Management Document (which will describe the prosecution approach to disclosure and the steps that have been and are intended to be taken), thereby enabling the judiciary to exercise realistic case management in this area.

Taken together these requirements amount to a robust quality assurance exercise: the CPS must set out the approach it is taking to disclosure in a serious or complex case, the Case Management Panel will consider it and the Disclosure Gateway Review prosecutor will test it and, ultimately, the Court can correct any errors in the approach in the early stages of a case.

The D7447 and D7448 material and the collapse of the trial

In view of the significance of the failure to locate the D7447 and D7448 material during the quality assurance exercise in November 2011 which led to the collapse of the case, this summary looks closely at these documents and draws on both the HMCPSI review into the disclosure handling in this case and the IPCC Report on the misplacing of specific documents leading to the collapse of the trial (also published today).

Finding:

The D7447 material related to complaints made about South Wales Police officers, which came from the IPCC. This material was important because it was clearly capable of undermining the evidence of a prosecution witness and should have been disclosed at the primary stage (HMCPSI Review para.7.53). The D7448 material related to civil actions against the South Wales Police by a number of officers and former officers arrested as part of the LW3 inquiry, which came from the South Wales Police Legal Services Department.

DS Allen visited the IPCC office in Cardiff on 23 July 2009 to examine third party material. He identified material to be copied and further considered. The problems with these documents (which became D7447) had their origin in the action taken when the material arrived at the LW3 office from the IPCC. There was no record made by DS Allen of the exact nature of the material he had obtained nor of the actual date he had come into possession of that material (IPCC Report para.120). The normal and correct procedure would have been for the copy IPCC material to be first registered on the HOLMES system. For reasons which are unclear the eCatalogue was completed before the material had been registered on the HOLMES system. Moreover, the documents received from the IPCC should not have been put together but registered separately, 'Had this occurred a HOLMES audit trail would have commenced from that point onwards and unique HOLMES document numbers could have immediately been inserted on the relevant eCatalogue thereby providing a firm link between the HOLMES database and the eCatalogue' (IPCC Report para.121).

The D7447 documents were considered by junior disclosure counsel, James Haskell, between 4th to 12th August 2009 (IPCC Report para.122). He determined that one of the documents was not relevant and that the other three did not fall to be disclosed at that stage but should be reconsidered if it became apparent from the defence case statements that the credibility of the witness was in issue. The HMCPSI Review concluded that Mr Haskell's decision was wrong as the first document was always relevant and should have been scheduled (para.7.55) and the other three documents were clearly capable of undermining the witness' evidence and should have been disclosed at the primary stage (para.7.53).

At about the same time, DS Allen was also dealing with third party material from South Wales Police and received five files relating to civil claims against the Force (D7448 material) together with a letter dated 28 July 2009 to DCS Coutts (IPCC Report para.53). DS Allen says he discussed this material with Mr Haskell, but this is not agreed. In any event, it appears that on 18August 2009, the D7447/8 material was registered on the HOLMES system (IPCC Report paras.57/58) and the location was recorded at the 'Incident Room St. Athan' (IPCC Report paras.61 and 63).

The last and next time there is any HOLMES audit information is on 28 October 2009 when the comment "no reading required" was added (IPCC Report para.67). DS Allen believed that the D7447/8 material was stored thereafter in one box together in his office at St. Athan (IPCC Report para.68). DS Allen left the investigation on 4 December 2009. DCS Coutts stated that he had no specific recollection of the D7447/8 material and had never seen it before it was found in his office on 17 January 2012 (IPCC para.69).

Although it is not clear that Mr Haskell read the D7448 material, the HMCPSI Review found that he advised the CPS on 2 February 2010 that material covering similar matters was not relevant and need not be scheduled (para.7.58). The HMCPSI Review found that he was wrong as the integrity of the investigation was a clear issue in the case and so the D7448 material should have been disclosed (para.7.55).

On 24 February 2010 DS May conducted an audit of the documentary material. He discovered that D7447/8 were missing and contacted DS Allen to find out where they might be. DS May made a note of his conversation in his notebook. This became a critically important note when the whereabouts of the documents became an issue just before the collapse of the trial. The entry recorded that as Mr Haskell had decided the D7447 material was not relevant, it had been shredded and that DCS Coutts had instructed DS Allen to get rid of the copy complaints (D7448) so they were shredded also (IPCC para. 72).

DS Allen does not recall the conversation but does not dispute that it occurred (IPCC para.73). Ms Williams, the HOLMES indexer, had a clear recollection of the incident on 24 February 2010: 'She recalls DS May came off the telephone shocked and annoyed and said something like "He's shredded them." She recalls DS May telling her that the documents were copies of originals and that she accordingly amended the HOLMES database indicating that the documents were held by the IPCC and the Legal Services Department respectively (IPCC Report, para.74).

In the autumn of 2010 a secondary disclosure exercise took place, but so far as the D7447/8 material was concerned, the only record of this is an entry on the MG6C schedule by the then disclosure officer, DC Morris, circling the D7447 and D7448 entries on the schedule and handwriting against each "with IPCC" and "with Legal Services". (IPCC Report 78).

Whether the police discussed the D7447/8 material with Mr Haskell in the autumn of 2010 is not agreed. Mr Haskell denies it. But he did provide written advice to the police about secondary disclosure advising them to consider the defence case statements not only for secondary disclosure purposes but also as a further quality assurance process of the primary disclosure decisions (IPCC Report.para.83).

The IPCC report outlines the conflicting evidence about whether Mr Haskell was made aware of the missing D7447/8 material at the secondary stage in 2010. The police disclosure officer allocated to re-review the material certainly noted on HOLMES that both items were missing. There is no record of what took place, however, and therefore no audit trail to provide an assurance about the process employed (HMCPSI Review para.7.59).

The trial of R v Moucher and others started at Swansea Crown Court on 4 July 2011. As documented in the HMCPSI Review, a number of disclosure difficulties arose and by 28 November 2011 it was obvious that the trial judge, Mr Justice Sweeney, had become increasingly concerned about what were alleged to be prosecution failings with disclosure (IPCC Report para.89). The Judge therefore set an exercise for the prosecution that concentrated on testing the decision-making in respect of material that police officers had suggested was disclosable but Mr Haskell had decided was not. The D7447/8 material fell into that category.

During the exercise, a search began for the D7447/8 material but it could not be found. DS May interrogated the HOLMES database and this jogged his memory of the conversation he had had with DS Allen in February 2010 and the note he had made. The notebook entry was found and this information was relayed to Mr Dean(IPCC Report para.95). The original documents were recovered from the IPCC, however, because the copy documents had never been properly identified and registered, Mr Dean was not confident that the originals and the D7447/8 material were the same.

During the evening of 28 November 2011 Mr Dean spoke to DS Allen and DCS Coutts. The various recollections of those phone calls are set out in the IPCC Report (paras.96 and 100-102). DS Allen said that he could only recall discussing one document and that he could not recall a conversation with DCS Coutts about shredding the documents. DCS Coutts said that he had never given any instruction to destroy case material, copies or otherwise. The next day DS Allen made a statement recalling a conversation with DCS Coutts regarding a sensitive document but he could not recall how he disposed of the document.

Mr Dean took the view that the documents had been destroyed. The HMCPSI Review concludes that 'Mr Dean QC believed on reasonable grounds that there was evidence that the D7447/8 material had been destroyed. On 28 and 29 November 2011, the prosecution lawyers considered that, even if it could be established that the originals of all the copy material in D7447/8 were available from the IPCC and South Wales Police Legal Services Department, the evidence suggesting that the copies had been destroyed without an adequate audit trail to explain the reason, was a serious issue striking at the heart of the disclosure process, which was already under serious attack. Mr Dean QC and Mr Bennett believed that an extensive search had taken place before it was concluded that D7447/8 could not be found.' (HMCPSI Review para.7.62).

Having received the information that the copy documents had been destroyed Mr Dean QC informed Swansea Crown Court on 1 December 2011 that "the prosecution can no longer sustain a position maintaining that the court and the defendants can have the required confidence in the disclosure process, the confidence that my Lord has referred to with all its importance to our criminal justice system. In those circumstances I formally offer no further evidence and will invite my Lord to direct the jury to return not guilty verdicts." The case against the 10 defendants therefore collapsed.

The IPCC Report concludes that the record of conversation by DS May was accepted as being definitive despite possibly contradictory information as to the reliability of its contents being obtained from both DS Allen and DCS Coutts. The IPCC also found that no effort was made at that time (13 December 2010) to locate D7447 and D7448 in the possession of South Wales Police (IPCC Report para.136).

On 17 January 2012 DCS Coutts was allowed access to his office in order to remove personal property. Piled up in the room were a number of large storage boxes. At about 11.40 am, DCS Coutts alerted his escort, a member of the South Wales Police Professional Standards Department, to a storage box which he had found amongst others located in the corner of his office. This was an Iron Mountain box which appeared to contain significant items. The IPCC was contacted and attended. The box and its undisturbed contents were securely sealed in an evidence bag and removed to South Wales Police Headquarters, Bridgend.

The IPCC concludes that there can be little doubt that the Iron Mountain box recovered from the office of DCS Coutts contained various items which constitute all the material referred to both within D7447 and D7448 (IPCC Report para.138).

Response:

We accept the conclusion of the HMCPSI Review that 'the problem with the missing D7447 and D7448 would not have arisen if the correct decisions about disclosure had been taken in 2009' (para.7.65).Coming as it did on the back of other problems, this inevitably led to the collapse in confidence in the disclosure process. The measures outlined above - particularly the introduction of the prosecution strategy document and clearer instructions to counsel - are intended to prevent this from happening again.

The issues about the proper identification of the D7447 and D7448 material when it was first received by the South Wales Police, the gaps in the audit trail and the absence of an accurate and contemporary record of conversations between police officers about what should happen to the material in 2009 identified by the IPCC investigation are matters more appropriately to be dealt with, or have been dealt with, by the Chief Constable of the South Wales Police.

Ends