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Disclosure of Unused Material in the Crown Court

The Criminal Bar Association response to HM Crown Inspectorate (HMCPSI) report published 9th January 2020 on the handling by the Crown Prosecution Service of the disclosure of unused material in the Crown Court.

The announcement from HM Crown Inspectorate (HMCPSI) 9th January 2020 can be found below and full report here, compiled in 2019 for publication in November 2019 but delayed to January 2020 due to the General Election.


Caroline Goodwin QC, chair of the Criminal Bar Association, said:  “Steps taken by the CPS point to a better direction of travel, but if this report had given the equivalent of an Ofsted grading for a school it would still, tragically, not move out of the bottom ranked “failing” for the key areas relating to the collation and disclosure of evidence across what the Inspectorate categorises as “volume Crown Court work”.

Overall there remains a long way to go before the criminal prosecution system between the police and the Crown Prosecution Service moves out of the “requires improvement” category.

In half of all criminal cases sampled the CPS’s charging advice was not dealt properly with disclosable and non-disclosable unused material. That is up from the seven out of 10 cases that failed to deliver two years ago, but an improvement to still inadequate remains a cause for serious concern. Evidence provides the cornerstone between the guilty walking free and committing more crimes, and the innocent being wrongly convicted for crimes they didn’t commit.

In a shocking 8 out of 10 criminal cases sampled the police still do not fully complete the correct forms for evidence, the Inspectorate report found. These ongoing failings in core evidence gathering and analysis competencies lie at the root of the ongoing disclosure mess, which is still left often for both prosecution and defence criminal barristers to deal with on the eve or even the doorstep of a trial where people’s liberty is at stake and the core duty of a government to keep society safe is put to the test.

In only just over a third of cases do the defence statements get served on time – that 37.6% number is actually down from the woeful 44.1% two years ago. Justice delayed is justice denied. The knock-on effect of delay is felt not just by any potential victims, their families and witnesses but also defendants left in limbo waiting to clear their name.

Criminal defence barristers are still not paid for the many hours spent examining “unused” material – evidence that is gathered by the prosecution and, if not relied on, then shared with defence for a fair trial. It is this task, within what the Inspectorate reveals as a still failing system due to starved and inadequately trained professionals at both police and CPS, that Is often the difference between liberty and imprisonment – lending more urgency to the Ministry of Justice’s (MOJ) commitment this year to at last pay criminal defence advocates for this sort of work, under changes to legal aid.

The message from the Inspectorate report is clear – we need immediate, substantial and crucially sustained reinvestment across both the police and CPS – and indeed by the MOJ back into criminal legal aid – to ensure the job of properly investigating and prosecuting reported crime gets done. 2020 is a tipping point for the criminal justice system, to stop treating ‘law and order” as a political football, and realise it is both the pitch and the rules of the game without which we can’t sleep easy at night, walk the streets securely by day, and travel to, and work safely in our hospitals, schools, offices and factories.

The public can not be short-changed. We have to put an end to the gross imbalance between rising levels of reported crime while prosecutions have fallen to record 50 year-lows after a decade of cuts to police, forensic services and CPS. Reinvestment in the front end must go hand in hand with investment into the middle and back-end, to criminal legal aid, the magistrates and Crown Courts, prison and parole services.“ [ends]

HM Crown Prosecution Inspectorate (HMCPSI) has today published its latest report on the handling by the Crown Prosecution Service (CPS) of the disclosure of unused material in the Crown Court.

The Crown Prosecution Service improve their handling of disclosure, but further improvement is needed before the necessary standard is achieved

HM Crown Prosecution Inspectorate (HMCPSI) has today published its latest report on the handling by the Crown Prosecution Service (CPS) of the disclosure of unused material in the Crown Court.

The report has found that the range of internal measures being implemented by the police and the CPS, including the extensive training programmes and more rigorous internal quality assurance, are making a difference and Inspectors found signs of improvement. There were good examples of prosecutors who really understood what was required of them. Although there is still a considerable way to go, the direction of travel is encouraging for the CPS and it is still at an early stage.

The file examination also shows that the recent focus on disclosure both in the police and the CPS is having an impact. This is to be welcomed, but it should be noted that in many instances the improvement is from a low baseline. Overall the inspection concludes that performance in many aspects will need to improve further to reach an acceptable standard. If the improvements in case quality and compliance with disclosure are to continue then effective training will be crucial.

Key highlights of the improvements made between the first set of cases examined and the final set of cases examined show:

  • A 28% improvement of the CPS correctly advising the police in the charging advice on reasonable lines of enquiry (from 46% to 74%).
  • An increase of over 20% in the number of cases where the CPS charging advice dealt properly with disclosable and non-disclosable unused material fully meeting the required standard (from 29% to 49%).
  • The CPS improving its compliance with the requirement for the prosecutor to review the defence statement and provide comments and advice to the police from 41% of cases to 60% of cases.

However, there are areas of performance, which although improved, remain unacceptably low. This includes:

  • The CPS feeding back to the police when they identified police failure in the handling of unused material in pre-charge cases improving from 6% in cases examined in the first set to 16% in the last set of cases examined.

HM Chief Inspector, Kevin McGinty said:

‘In 2017 the joint inspection of disclosure set out that there appeared to be a culture of defeated acceptance; many in the police and CPS who dealt with general Crown Court cases thought that the issues around disclosure would continue and never be resolved.

Since the joint inspection there has been a concerted effort by the police and CPS to work together to develop and implement measures designed to improve performance. The challenge facing the CPS and police is considerable. The CPS has been struggling to deal with its caseload without having the numbers of lawyers needed to do it. Similarly, the Police have struggled with the impact of stretched resources and the lack of understanding of disclosure obligations by inexperienced police officers. It will take time for the issues identified in our earlier report to be fully met.

This inspection shows that training being employed by the CPS and police is having an effect. This is to be welcomed, but our findings also show that the improvements come from a low baseline and it is clear that performance needs to improve further to reach an acceptable standard. This is still work in progress.’

Notes to editors:

  1. HMCPSI inspects prosecution services, providing evidence to make the prosecution process better and more accountable. We have a statutory duty to inspect the work of the Crown Prosecution Service.
  2. The last time HMCPSI inspected the handling of disclosure was in 2017 – this was a joint inspection with HMICFRS. This report is linked here:
  3. To assess progress the file examination was split into six distinct tranches. Inspectors assessed cases from all 14 CPS Areas across England and Wales in 11 month period.
  4. The report sets out the findings from an assessment of 560 cases immediately post the charging decision by the CPS and of 555 live cases which were examined two weeks before the trial was due to start (1115 cases in all).
  5. An acceptable standard would be full compliance with obligations; this would result in an assessment of 100% by inspectors.
  6. Disclosure of unused material is a key component of the investigative and prosecution process. When conducting investigations, the police have to retain every item which is not been used as part of the prosecution’s case against the defendant but which is still relevant to an investigation. Each item is then reviewed to see whether it is capable of undermining the prosecution case or assisting the defence case. If either factor applies it must be disclosed to the defence.
  7. This report was scheduled to be released on 14 November 2019, but publication was delayed due to the pre-election period.
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