“The legitimacy of our criminal justice system relies on the process being fair and even-handed. The public rightly expects to see the guilty convicted, but it is equally important to avoid the wrongful conviction of the innocent.”
Alison Saunders, Crown Prosecution Service
Mike Cunningham, College of Policing
Nick Ephgrave, National Police Chiefs’ Council
Disclosure is providing the defence with copies or access to all material that is capable of undermining the prosecution case and/or assisting the defence.
Investigators, prosecutors, defence teams and the courts all have important roles to play in ensuring the disclosure process is done properly, and promptly.
The disclosure process during an investigation:
- When an allegation is made against someone, the police will begin an investigation. From the outset the police have a duty to record, retain and review material collected during the course of the investigation. The police reveal this material to the prosecution to allow for effective disclosure to the defence.
- Disclosure obligations begin at the start of an investigation, and police have a duty to conduct a thorough investigation, manage all material appropriately and follow all reasonable lines of enquiry, whether they point towards or away from any suspect.
- If police believe there is strong evidence to suggest someone committed a crime they will present evidence to the Crown Prosecution Service, which decides if the person should be charged.
- When a defendant is charged with an offence the investigator will review all material gathered during an investigation – such as CCTV footage, statements from witnesses, mobile phone messages, social media conversations and photographs.
- The investigator will decide which items collected as part of an investigation are capable of having a bearing on any issue in the case. This is called applying the relevance test.
- Some material will be used in the prosecution and will be part of the case. Some will be irrelevant and have no bearing on the case at all.
- Other material will be relevant to the investigation but is not part of the case. This is called unused material. This material is reviewed by the disclosure officer and if any of it may undermine the prosecution case or support the defence it will be disclosed to the prosecutor.
- Prosecutors must provide the defence with the schedules of all of the unused material and provide them with any material that undermines the case for the prosecution or assists the case for the accused.
- A defence statement is submitted to the prosecution in Crown Court cases and in some Magistrates’ Court cases, which sets out the defence to the allegations and can point the prosecution to other lines of inquiry. The disclosure officer will then review all of the material held by the investigator and decide whether in the light of the defence statement, additional material is now relevant or meets the test for disclosure because it supports the case for the accused.
Since summer 2017, police, the College of Policing and the Crown Prosecution Service have been working to address the issues and in January 2018 we all committed to a joint action plan, called the National Disclosure Improvement Plan, to make changes.
The plan includes measures to:
- Create disclosure experts in every police force and CPS area
- Create a network of champions in every police force to make sure that advice and support is available to all who may need it.
- Introduce improvement plans for every police force and CPS area
- Provide all multimedia evidence from the CPS to the defence digitally
- Update training
- Set up a system for the CPS and police to better identify and deal with cases with significant and complex disclosure issues.
What is disclosure? Toggle accordion
To help guarantee a fair trial a defendant has the right to be provided with any material which could assist them in defending themselves. They have a right to an open and honest prosecution which reveals any weakness in the case against them. Investigators must pursue all reasonable lines of enquiry and this includes investigating matters which could point towards innocence as well as guilt.
When a defendant is charged with an offence, prosecutors are required to provide the defence with any material that undermines the case for the prosecution or assists the case for the defendant. This could be, for example, CCTV footage, statements from witnesses, mobile phone messages, social media conversations or photographs.
The disclosure officer has specific responsibility in this area during an investigation. The disclosure officer is usually a police officer with responsibility for examining all unused material as it is identified, and ensuring it is scheduled where appropriate.
Scheduling refers to the process of recording the identified material. The purpose of the Disclosure Schedule is to inform the prosecutor of the existence of relevant unused material. The schedule will also be provided to the defence. The test that is applied to scheduling is ‘relevance’. All relevant material must be scheduled unless it is evidence. The definition of relevance is contained within the CIPA Code of Practice as ‘anything that appears to have some bearing on any offence under investigation, or any person being investigated, or on the surrounding circumstances unless it is incapable of having any impact on the case’.
Each item on the schedule must be fully described so that an assessment can be made about whether the item is capable of undermining the prosecution case or assisting the defence.
Where the prosecutor requests that material is disclosed, the defence are given a copy of, or access to, any material which could reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused.
The defendant may serve a defence statement, which is a written statement that sets out the nature of the accused's defence. It must comply with the requirements set out in the Criminal Procedure and Investigations Act 1996. Once a defence statement is received, the police have a duty to review all of the material again in light of the nature of the defence being raised. They must reconsider whether there are more ‘reasonable lines of enquiry’ and then further schedule any additional relevant unused material as part of their continuing duty to disclose.
The CPS and the police have a duty to keep disclosure under review throughout the life of a case. If new material comes to light in the lead up to a trial, or during a trial, then that material will be reviewed by prosecutors who will determine if it has any impact on the proceedings. If the new material is deemed to mean that there is no longer a realistic prospect of conviction, then the CPS is obligated to stop proceedings.
Joint National Disclosure Improvement Plan – June update Toggle accordion
In January 2018 the CPS, National Police Chiefs’ Council and the College of Policing released the Joint National Disclosure Improvement Plan. The plan sets out the actions that we are taking, and will take, to improve how the criminal justice system deals with disclosure.
The plan includes a range of measures that will support police and prosecutors with their disclosure duties, as well as outlining our joint commitment to making clear, effective and sustainable changes and giving them the tools they need to manage all cases to the high standards we all expect.
Police prosecutions are not the only cases where disclosure is important and we will liaise with other prosecuting authorities to make sure we share learning and progress.
Key NDIP actions implemented so far:
Extended the use of Disclosure Management Documents
The CPS has developed best practice from the current serious casework process and extended this to other Crown Court cases. Disclosure Management Documents are routinely used in terrorism, serious fraud and organised crime cases to identify the prosecution approach to disclosure for the judiciary and the defence. This ensures disclosure issues are dealt with early. They are now being used by the CPS in all rape and serious sexual offences (RASSO) and complex Crown Court cases. Their effectiveness in these cases will be measured at the conclusion of a pilot period.
Setting out reasonable lines of enquiry
In all rape and serious sexual assault investigations and in all complex cases, we have introduced an additional section on the form used by police when they submit a request for a charging decision to the CPS (commonly called an MG3). Officers are now asked to identify to the prosecutor what they consider to be reasonable lines of enquiry and to identify the electronic material that has been seized and their investigative approach to it. This will be used to identify and agree between the police and the prosecution how issues such as social media evidence will be approached and handled at the pre-charge stage wherever possible, or immediately post-charge.
It is essential that disclosure issues are addressed at the pre-charge stage where possible, particularly what should be considered reasonable lines of enquiry in each case.
The recently released training products from the College of Policing comprise a bespoke disclosure course that focuses on reasonable lines of enquiry and makes clear that disclosure is an integral part of an investigation from the start.
CPS Disclosure Champions have been established in all Crown Court and Magistrates’ Court teams. These champions support Chief Crown Prosecutors to complete disclosure assurance and lead training in their Areas.
To support the CPS champions, the police are establishing a complementary network of champions. They will be led at chief officer level in each force and their work will be coordinated by superintendents/chief superintendents. The College is organising a series of briefing events, enabling each force to nominate around 10 champions to receive information about disclosure and how to support their colleagues in dealing with disclosure issues.
The champions’ networks will work closely together, across organisations, helping to improve and maintain disclosure standards.
The Disclosure Manual for CPS prosecutors has been refreshed and training material reviewed to ensure that it is accurate and elements which were outdated have been removed. The Disclosure Manual will be further revised when improvements included as part of the National Disclosure Improvement Plan are introduced.
The Attorney General is conducting a review of disclosure, including a review of the current legislation, Codes of Practice and guidelines. This review is expected to be completed in the coming months and the Disclosure Manual will be updated to reflect any changes or recommendations.
National Disclosure Forum
Disclosure is a systemic issue across the whole of the criminal justice system, and there are important roles for the police, the prosecution, the defence and the court in ensuring it is done properly. We are engaging with criminal justice system stakeholders in regular meetings of the multi-agency National Disclosure Forum to ensure that improvements are working in practice. The Forum is encouraging discussion about what solutions look like for all parties involved, as well as generating feedback on the work underway to make sure we are getting it right.
These meetings include representatives from the Law Society, the Bar Council and Criminal Bar Association, defence solicitors and the judiciary, and are jointly chaired by the CPS and police.
Joint local disclosure improvement plans
In addition to the national plan, each of the 14 CPS Areas has agreed a joint local disclosure improvement plan with all of the police forces they work with. These plans set out how disclosure improvements will be addressed at a local level.
Getting disclosure right is a priority for the CPS and the police, and we continue to work together to find solutions to the issues that exist throughout the entire criminal justice system.
A third party material protocol between police and the CPS
Duties of disclosure under the Criminal Procedure and Investigations Act 1996 (CPIA) and the Code of Practice are imposed upon two categories of persons only: the investigator and the prosecutor. All other categories of persons are to be treated as third parties, rather than as belonging to the prosecution team.
Third parties frequently encountered in a criminal investigation will include owners of CCTV material, social services departments, schools, medical practitioners and mobile telephone providers.
The third party material protocol draws together the agreement between the CPS and the police to use standard correspondence and forms on a national basis regarding third party material. This includes a letter to be sent to third parties asking them to identify material they may hold, a pro-forma reply for third parties to use to respond, an index of material requested and a viewing log of the material inspected.
National disclosure standards
A National Disclosure Standard document has been drafted. This document contains a statement of the national standards for the completion of the MG6 schedules of unused material in the Crown Court and the Streamlined Disclosure Certificate for use in magistrates’ courts and sets out the process for the provision of schedules. The Standard will be subject to annual review and can be amended to reflect any new practice.
In April, the College of Policing released new training for all forces to use. This training takes account of the ongoing and significant changes in disclosure practice as a result of the increasing use and relevance of digital media and material. In addition, the College has issued learning standards to assist forces to equip their officers with the knowledge they need to carry out their disclosure duties - the College training product supports those standards and forces are able to augment it with local training that takes account of specific criminal justice processes and working relationships in each area.
A number of events for disclosure champions will be held from May 2018 across the country so that every police force and CPS Area has a cohort of well-informed individuals to assist colleagues to fulfil their disclosure duties.
Joint Technology Working Group
A joint technology working group with representatives from the CPS and Police has been set up to explore the use of a range of digital tools to assist in the review of digital material.