Letter to the BBC re: File on Four, 21 February 2018

To: Gail Champion, Editor, File on 4

21 February 2018

Dear Ms Champion,

We are taking the unusual step of jointly writing to express our genuine concerns about the ‘BBC
Justice Survey of practitioners about disclosure concerns’ currently being run in conjunction with the
Criminal Law Solicitors' Association, the Criminal Bar Association and the London Criminal Courts
Solicitors' Association. It is understood that the intention is to report on the findings of this survey on
File on 4.

There is undoubtedly a strong public interest in understanding the complex issues surrounding
disclosure in criminal cases. However, in our view, there are a number of fundamental flaws in the
design of this survey which mean that it is likely to give a skewed view of what is happening, and
cannot therefore be relied upon to support impartial reporting. Some examples are set out below.

Question 3 of your survey asks, ‘In your experience have you encountered disclosure of evidence
failings within the last 12 months?’

This question fails to make a crucial distinction between the provision of evidence on the one hand
and the disclosure of unused material on the other. These are separate matters with very different
legal tests attached. All evidence on which the prosecution intends to rely must be served on the
defendant. The prosecution must ‘disclose’ relevant undisclosed material which it is not using as
evidence but undermines their case, or strengthens the defence case. Furthermore, there is no
definition in the survey as to what a “disclosure failing” is - therefore anyone completing the survey
is free to apply their own interpretation.

This lack of precision means that it is highly likely that respondents may consider that a case has
come to end due to a “disclosure failing” when in fact it may be nothing of the sort.

On the basis that Question 3 cannot be relied upon to provide meaningful data, it follows that
Question 4 ‘How would you describe the frequency of such failure?’ is also entirely unreliable.
Question 6 asks, ‘To the best of your knowledge where did the failure of disclosure of evidence
originate?’

Individuals invited to complete this survey will not be able to answer this point accurately. Those
acting for the defendant will not be party to whether, for example, the police had not adequately
examined material they had in their possession or informed the prosecutor of its existence, or
whether material from a third party or a delayed forensic analysis meant that new material had
come into the possession of the prosecution late in the trial process but had in fact been reviewed as
soon as was reasonably possible.

The vague wording of this survey is further evident in Question 8, which asks for the outcome of
cases where there has been a ‘disclosure failure’. The options include ‘case collapsed’, which would
presumably encompass cases where a decision has quite properly been made to offer no evidence in
light of new evidence received. Another is ‘denied justice’, a highly emotive and entirely subjective
classification.

Question 11 asks for views on the impact of the Transforming Summary Justice Initiative but only
provides for three responses: ‘Improved the service’, ‘Made the service worse’, ‘No impact’. This is a
crude way of gauging views on a complex reform of the criminal justice system. While a small
number of respondents may feel entirely positively or negatively towards the impact of the initiative,
there is no way to achieve a sophisticated or balanced response with this answer. It allows for no
consideration of whether elements of TSJ have improved magistrates’ courts while others may
present challenges. The defence may assert that they do not receive all of the material that they
would like under TSJ, but they receive that which they are entitled to under the Criminal Procedure
Rules. Magistrates’ courts deal with hundreds of thousands of cases a year, and to generalise like this
will not assist in understanding whether these reforms have been successful.

To be clear, we take no issue with you partnering with the Criminal Law Solicitors' Association, the
Criminal Bar Association and the London Criminal Courts Solicitors' Association to survey their
members. However, we do have significant concerns that the responses to a flawed survey could
form the basis of BBC reporting, given your strong commitment to impartiality and accurate
reporting.

Yours sincerely,

Alison Saunders, Director of Public Prosecutions, Crown Prosecution Service
Chief Constable Nick Ephgrave, National Police Chief’s Council lead for criminal justice

Cc:

Joanna Carr, Head of Current Affairs, BBC; Hugh Levinson, BBC Radio Current Affairs Executive Editor