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The scandal over important information which might undermine prosecutions being deliberately hidden from defendants hit the news again last month as new information pointed to institutionalised failings around disclosure.
According to The Times the failure by police and prosecutors to disclose vital evidence in criminal cases to the defence is routine and deliberate. They say a dossier reveals a commonly held view that the defence is not entitled to see all the evidence and discloses tactics used to avoid its disclosure, with police in at least one force trained in avoiding making material that might undermine their case available to the defence.
The file draws on the reports of 14 focus groups with the police, and others with prosecutors and judges, as well as a survey of prosecutors. The comments in the dossier include one prosecutor saying: “In even quite serious cases, officers have admitted to deliberately withholding sensitive material from us and they frequently approach us only a week before trial. Officers are reluctant to investigate a defence or take statements that might assist the defence or undermine our case.”
Police focus groups say: “If you don’t want the defence to see it, then it goes on the MG6D” – a list of sensitive unused material which the defence doesn’t have access to. A police inspector said that police “have been trained to put items on there [MG6D] that they do not want disclosed to the defence”. A prosecutor confirmed that “officers put undermining material on the MG6D list to hide it”.
The Times dossier was obtained by the Centre for Criminal Appeals (CCA), a charity, under a freedom of information request to the Crown Prosecution Service (CPS) Inspectorate and the Inspectorate of Constabulary, which collated the unpublished comments when preparing a joint report on disclosure of evidence last year. The dossier confirms that the failure to hand over evidence that might undermine the prosecution case is often deliberate.
The CPS and police inspectors giving evidence to the Commons Justice Select Committee said disclosure failings were the single most frequent cause of the steady stream of miscarriages of justice. They described a culture in which disclosure was seen not as part of an investigation but “more of an administrative exercise”. The Centre for Criminal Appeals and the Cardiff Law School Innocence Project have submitted evidence on disclosure to the Justice Select Committee urging the creation of an independent agency to deal with the issue.
Suzanne Gower, solicitor and Managing Director at the CCA said: “These documents show why responsibility for providing full and fair disclosure must be taken out of the hands of police and prosecutors. The truth is they see themselves first and foremost as adversaries to the defence and, in some cases, deliberately withhold exculpatory evidence. It is unrealistic to expect this mindset to change, which is why we are calling for a new independent disclosure agency consisting of legally-trained staff to take charge of the disclosure process. Not only would this prevent wrongful convictions and re-establish the right to a fair trial, it would put an end to the vast waste of resources caused by our current dysfunctional disclosure regime.”
The National Police Chiefs’ Council lead for criminal justice, Chief Constable Nick Ephgrave, told The Times: “National training and guidance on disclosure does not in any way endorse or encourage the unnecessary withholding of any material relevant to a case. It is, however, right that in cases involving sensitive unused material, such as details of an informant, that this is not automatically shared with the defence. This is entirely in line with legislation and national guidelines and is well understood by defence and prosecution alike.”
Read the full story and download the dossiers at: criminalappeals.org.uk/blog
This article appeared in the Insidetime Newspaper in June 2018 Issue
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