Disclosure
“Disclosure is a vital part of every investigation and the preparation of every case for prosecution and trial. Public confidence in the system of disclosure needs to be rebuilt and this continues to be a priority for all three of our organisations, both individually and working together.”
Max Hill, 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.
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.
Disclosure is a vital part of every investigation and the preparation of every case for prosecution and trial. The National Disclosure Improvement Plan (NDIP) published in January 2018 demonstrated the unprecedented joint commitment and focus of the police, the CPS and the College of Policing to finding solutions to the problem of getting disclosure right. We have recently published our report on the extensive action that we have already taken in accordance with that plan to bring about the necessary changes, not just in how cases are handled, but in the wider culture within investigations and prosecutions. Public confidence in the system of disclosure needs to be rebuilt and this continues to be a priority for all three of our organisations, both individually and working together.
The vision, priorities and drivers of improvement we identified in the NDIP remain as true and as important now as they were when it was published at the beginning of the year. However, while all of the actions under the first published plan have either been completed or are on track, there is considerable work still needed to embed the improvement measures and ensure that the changes are having the intended effect throughout police forces and CPS Areas.
Our primary aim is to continue to drive improvements in the way disclosure is dealt with in every criminal investigation and those cases which go forward to prosecution. To make that happen we will focus on:
- forging strong local partnerships so that police forces and CPS Areas deliver the changes required at every level;
- developing the core skill of disclosure as part of the investigative process for all investigators;
- utilising the opportunities of innovative technological solutions and making these tools available to frontline staff in their work;
- ensuring a clear line of sight between local and national expectations to ensure that national changes are embedded and taking effect at a local level;
- improving communication between the police, the CPS and the defence, including at the pre-charge stage;
- monitoring the impact of improvement activity and setting success measures to assess their effectiveness in investigations and prosecutions; and
- focusing on disclosure performance in the magistrates’ and youth courts.
Read the full Joint National Disclosure Improvement Plan – Phase 2
Each of our organisations remains committed to concentrating relentlessly on the implementation of disclosure improvement measures. Working together, the task now is to ensure that we embed these changes we have already introduced and use them to continue to improve organisational performance. We will maintain this momentum to bring lasting improvements to how disclosure is managed in the criminal justice system.
Nick Ephgrave
National Police Chiefs’ Council
Mike Cunningham
College of Policing
Max Hill
Crown Prosecution Service
Here, you can read the Terms of Reference and minutes of meetings of the National Disclosure Forum, a cross-Criminal Justice forum that meets regularly to discuss developments in the approach to Disclosure.
National Disclosure Forum Terms of Reference
Terms of Reference - February 2018