The Law of Disclosure

A Perennial Problem in Criminal Justice

Ed Johnston, Tom Smith, Ed Johnston, Tom Smith

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000260274
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

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.

1
The rise of managerialism

The impact of swift and (un)sure justice on disclosure in criminal proceedings

Dr Ed Johnston*

* Dr Ed Johnston is a Senior Lecturer in Law at UWE, Bristol, [email protected].

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.

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.

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. 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 mid-1960s; disclosure was exclusively placed on the prosecution to reveal facts of their case to the defence.

4 [1946] 31 Cr App R 146.

5 [1965] 1 QB 348.

6 Ibid. at 369.

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.

7 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.

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 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.

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.

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...