The importance of understanding disclosure in the criminal process

The disclosure of prosecution material has never been a more high profile and hotly-debated topic than it is at the present time. There can be little doubt that both the adversarial system itself and the fundamental premise upon which our justice system has for centuries survived, namely that the prosecution shall bear the burden in all cases of proving guilt, has been substantially eroded and that an ever increasing number of our criminal trials appear to be simply unfair and geared up to secure a conviction at any cost, rather than to allow true and genuine justice according to the evidence to take its natural course.

For those who are involved within the criminal justice system as practitioners, and certainly for those who have experienced the system as defendants, the experience of preparing and presenting a case has never presented more obstacles, such as police and prosecution incompetence, unfairness and on occasion even deceit.

Our disclosure system is supposed to be fair, and provide the defendant in criminal proceedings with any material held by the police and prosecution that is capable of undermining the prosecution case or assisting the defendant. Defendants and practitioners face and often insurmountable struggles against unreasonable and inexplicable police and prosecution conduct which is unfortunately frequently excused by the judiciary, and often blamed on the defence for not bringing such improper behaviour to the attention of the Court.

Contrast that against the position when defendants or defence practitioners fail, often inadvertently, to comply with a direction of the court or fail generally to meet an expectation of the court concerning trial preparation and trial readiness. The Prosecution , who of course have the resources of the state at their disposal in fulfilling their role, are all too ready to point the finger and criticise the defence without recognising its own failings, and the Judiciary all too keen to criticise and in some cases threaten for wasted costs.

Gone are the days when a defendant can wait until trial to raise prosecution inadequacies and shortcomings in evidences. Nowadays, defendants and their representatives are under a specific duty to notify the court that the prosecution hasn't done its job properly and where that is not done, the courts are routinely willing to allow the prosecution time, sometimes in the form of an adjournment, to get its house in order. Again, contrast that to the position of the defendant who hasn't perhaps secured some vital evidence on the first day of trial, or who raises a matter of outstanding disclosure on the first day of trial due to repeated prosecution failings or through police incompetence , and who when an adjournment is sought is then confronted with strenuous objection by the Court and criticised for not bringing it to the attention of the Court sooner. It is somewhat surprising to say the least , that the defence can be actually criticised for not pointing out to the Court in advance of trial the failings of the police and prosecution. Indeed, it can seem like everything which the police and prosecution have not done due to incompetence or ignorance, is suddenly the fault of the defence.

So what can be done?

The answer is to keep on top of the prosecution failures, and keep a very careful record of all communication with the prosecution concerning any repeated failures to disclose, or repeated failures to address any directions of the court. This would be with a view to arguing that the case against the defendant amounted to an abuse of process, and should that argument to be successful, the court has a discretion to stay the proceedings which means they are halted.

Even then, however, the caselaw is against the defendant and demonstrates just how difficult a task it is for there to be a successful argument for an abuse of process. Current caselaw reminds practitioners that an abuse of process argument should not be used to punish the prosecution, particularly when considering whether the defendant could receive a fair trial. You could therefore be forgiven for thinking that this is a clear indication that the system is very much geared towards conviction rather than fairness.

But although such arguments are difficult, they do often focus the mind of the prosecution on disclosure, and relevant material is often then produced once the issue of abuse is raised.

But going back to the original point, an argument for abuse of process is dependent upon the production of evidence, and in this case evidence to demonstrate how the prosecution have failed in its duty. Keeping careful notes and records of communications with the prosecutor will be key. The issue of fairness will ultimately be a matter for the court, and the lack of fairness can often be attributed to the failure of the prosecution to respond, or to respond adequately to requests for information, or for specific requests for material. Practitioners will know how difficult it is nowadays, now that we have entered the digital age, for the prosecution to respond to any requests, let alone requests for important disclosure.

Even if the application for abuse is not successful, the issues can often be raised during the trial process, most likely with the officer in charge of the investigation.

The reality is that the Court will always look for alternatives, meaning that it will do its best to avoid allowing the defence to succeed in its argument for abuse, and that might mean adjourning a case to give the prosecution more time to provide material, or putting the case back in the list to allow the parties to deal with outstanding and unresolved issues. If any argument for abuse does not succeed, then the admissibility of other evidence may be called into question, and this might lead to successful application being made to exclude evidence. The exclusion of evidence can result in cases being dismissed, or can create problems for the prosecution during the trial itself when looking to meet the threshold of satisfying the Court so that it is sure of the defendant's guilt.

The way in which the prosecution have attracted increased security over the years when it concerns failings of their own doing, has prompted defence practitioners to change the way defence cases are prepared and presented. Practitioners should now be mindful of prosecutions which will be littered with operative and disclosure failings, and should at any time, be able to demonstrate all communication with the prosecution and the Court setting out all formal requests made of the prosecution, and subsequent delays demonstrated by the frequent inability to respond in time, or at all. It is important to keep on top of key dates so that when dates arrive by which evidence ought to have been served, or other directions complied with, the prosecution are reminded that they have failed in their duty. Then, when they do not respond to your reminder, send further requests for compliance. After a time, remind the prosecution that if they continue to ignore you, you will have no alternative other than to ask the case to be listed in which case you will ask the court to award wasted costs. And then, when ultimately the prosecution have continued to ignore you, You can ask the Court to list the case enclosing a schedule of times and a schedule of costs, requesting that the court addresses that at the hearing. Your carefully prepared chronology with exhibits, should greatly assist.

The important thing is not to expose yourself, or more importantly your client, to any criticism, and to be seen to be in actively engaging in the spirit of the various provisions and regulations that govern the trial process. To do that, you need to have a Solicitor that not only understands its duty to the court and the disclosure process , but who knows how to manage police and prosecutions failings and use those to the advantage of a client when ultimately the matter is raised before the court pre-trial, or directly with witnesses and the during the trial process.

For more information or to discuss your case with a specialist defence lawyer, please contact us in London (West Drayton) on 01895 449288 or in Hertfordshire (St Albans) on 01727 840900 or by email via our contact page.