The Crown Prosecution Service may have underestimated by around 90% the number of stopped cases with disclosure errors, according to a damning report by MPs published today.
The House of Commons justice select committee, which has been investigating the disclosure of evidence in criminal cases, concludes that disclosure failures have been widely acknowledged for many years but have gone unresolved, partly because of 'insufficient focus and leadership' by ministers and senior officials.
The committee said it was 'surprised and disappointed that the [Director of Public Prosecutions], who should be closer to these problems on a day-today basis, does not appear to have pressed for more urgent action to address the worsening situation during her time in post'.
The committee did not feel the DPP sufficiently recognised the extent and seriousness of disclosure failures by police and the CPS. 'It is surprising and concerning that the Director of Public Prosecutions did not know that the case against Liam Allan had not been recorded as a disclosure error at the point that it was stopped. The director has not acted as quickly and proactively as required and this, it appears to us, has permeated throughout the organisation,' the report states.
The committee found that data collected by the CPS did not enable the DPP or attorney general to know if prosecutors were getting decisions right or wrong, which may have allowed disclosure errors 'to prevail and that miscarriages might have resulted'. A CPS review of rape and serious sexual offences indicates that data collected on cases that failed due to disclosure might have underestimated the number with disclosure errors by around 90%. Data collected by the CPS did not include cases which proceeded with disclosure errors.
Last month Alison Saunders told the committee that prosecutors are asked to pick one of 28 'main' reasons why a case has been stopped, acknowledging that the CPS's 'data capture system is not fit for purpose'.
MPs are 'particularly concerned' about the lack of remuneration for defence practitioners to review unused material and the impact of changes to the litigators' graduated fee scheme, the subject of a Law Society challenge in the High Court this week.
Saunders steps down as DPP in October. The committee expects her successor to 'proactively address' disclosure throughout their tenure. 'The culture of "it didn't start on my watch" is pervasive and undermining of public confidence. It must not continue,' the report says.
Commenting on the report, Conservative MP Bob Neill, committee chair, said correct disclosure of evidence by the police and CPS to the defence is fundamental to ensuring a fair trial 'but is too often regarded as just an administrative headache. This is not acceptable'.
The committee welcomed the National Disclosure Improvement Plan and 'look forward' to reading the attorney general's review. However, Neill said, 'these must deliver much needed improvement. There have been too many reviews of disclosure that have not resulted in real change'.
Law Society president Christina Blacklaws welcomed the committee's message to the government urging it to consider whether funding across the criminal justice system is sufficient to ensure a good disclosure regime.
The Criminal Law Solicitors' Association 'wholeheartedly rejected' the argument made to the committee that a fuller disclosure regime will place an unreasonable burden on the CPS. 'We believe it is essential that prosecutors review all the material in any event and IT improvements and the much-vaunted digitisation process must remove both logistical and financial costs from proper disclosure,' the association said.
Angela Rafferty QC, chair of the Criminal Bar Association, said she hoped today's 'thorough and searching' report 'will contribute to the restoration of proper functioning of the disclosure process and the broken criminal justice system'.