Disclosure in light of the DPP review of disclosure in live rape and serious sexual assault cases

Following the DPP’s announcement that all live rape and serious sexual assault cases will be reviewed by senior prosecutors, Matthew Claughton examines the significance of this announcement. He also looks at what steps the Olliers team takes on behalf of their clients when unused material is relevant.

In recent weeks a number of serious sexual assault cases have collapsed at the point of trial due to failings in the prosecution’s duty to disclose. So, what are disclosure obligations?

An investigator’s duty to disclosure

An investigator is under a duty to retain material in a criminal investigation that may be relevant. This will always involve crime reports, custody records, records containing descriptions, final versions of witness statements, interview records, communications between police and experts and records of first description. The investigator must retain material that may cast doubt on the reliability of witnesses. They must retain material which may be exculpatory and which may suggest a suspect or defendant is innocent.

Digital material

In cases involving allegations of sexual assault and rape, digital material can be of huge significance. In allegations where the complainant and the suspect/defendant are known to one another, digital material could be particularly important. Frequently, we act in cases where there may be communication between complainant and suspect/defendant prior to or after an alleged offence. There may also be communication with third parties and/or social medial postings which cast doubt on the allegations being made.

Over worked and under resourced police forces may find it difficult to analyse such material. Post charge it may be difficult to schedule material. The police may not even be aware of material that may support the defence. At Olliers we are alive to this issue and will push our clients to consider the possibility of exculpatory digital material existing. We frequently seek to preserve material ourselves with a view to drawing it to the attention of police or prosecutors if or when required.

The Crown Prosecution Service

A disclosure officer must prepare a schedule known as an unused material schedule which is then provided to the Crown Prosecution Service. The prosecutor must review the schedule thoroughly and be alert to the possibility of relevant material which may exist which may not have been revealed to them.

It is possible that undisclosed material may not be recorded on an unused material schedule (or a further sensitive schedule). It is known that some police forces use a third schedule of material that is retained but not regarded as relevant.  This means that the prosecutor is unaware of the existence of the material and unable to establish whether or not it is material that may undermine the prosecution case.  Prosecutors have substantial caseloads and it is not always possible for them to second guess at what material the police may be withholding.

Role of defence

The defence are served an unused material schedule normally at the point at which the prosecution case is served in its entirety. This when the defence have to prepare a defence statement setting out the nature of the defence. The defence statement also contains a request for unused material. This is a crucial part of the case. At Olliers we place great emphasis on our request for unused material. We do not simply request items from the unused material schedule. The unused material schedule may be missing items that as a defence team we might expect the police to be in possession of. We ask for items that we feel the police may have or should have. We ask for items in possession of third parties. If we know an item exists then it matters not whether the police already have it.

In allegations relating to serious sexual assault and rape, this might include medical evidence, social services records, evidence of earlier accounts to counsellors, friends or other witnesses referred to in statements. It may also include witness statements that have been referred to but don’t appear in the evidence. In interview a witness may refer to having spoken to an officer, this is a point at which the officer’s notes are required. It goes without saying that this material may also include digital items such as text or other messages and social media postings.

Funding

Current provisions to legal aid do not allow a specific payment to the defence for work undertaken on unused material. Defence teams are paid a fixed fee which has not increased in 10 years. The resources available to defence teams are similarly depleted to those available to the police and to the Crown Prosecution Service. This lack of adequate funding at all levels means that there is a real risk of miscarriages of justice and the innocent being convicted.  Some may say there is an equal risk of the guilty not being charged. Many feel we now have a two tier justice system, one for the legally aided and one for those who can afford to pay their legal teams to dig away for the that key piece of evidence that blows the prosecution case out the water.

What can be done?

The defence must not take at face value information provided by police and contained in the Unused Material Schedule. The police and prosecution cannot be allowed to blame lack of resources and a failure to properly discharge their duties of disclosure.

Moreover the defence should anticipate other material that may be in possession of the police or that which the police may be capable of obtaining. A suspect or defendant needs to understand that they are a key member of the defence team, they need to actively participate in their defence. It’s amazing what progress and ideas our lawyers can make with a really involved client who is prepared to fully commit to the preparation of their case.

Section 8 disclosure applications

In the event that the police and the prosecution fail to comply with requests for disclosure an application can be made before the Court under s8 of the CPIA Criminal Procedure and Investigations Act 1996. This brings the matter to the attention of the Judge. Olliers had a recent successful abuse of process argument following failures on the Crown to disclose. The Judge’s decision to dismiss the case was upheld by the Court of Appeal in September 2017. Click here to read more. 

Proactive defence pre charge

There are no obligations on the police to disclose what evidence they have prior to a charging decision being made. A decision to charge should only be made if there is a ‘realistic prospect of conviction’. And yet, what evidence has the prosecutor seen? Is it possible to second guess what material the police may be in possession of?  Alternatively, is it possible to point the police in a direction of material on the basis that they may be in possession of? With regard to digital material, it may be possible to draw the attention of the police to exculpatory text, email or other digital messages or social media activity.  The defence have to tread carefully and remember at all times that the end game has to be ensuring the client is not prejudiced at trial in the event he or she is charged.

A proactive approach pre charge can make the difference between a suspect being charged and facing months awaiting trial and the matter not proceeding to charge (as discussed here). There is no public funding in this area for defence work but proactive work leading to a decision not to charge is one of the most rewarding and satisfying areas for a criminal practitioner. The cost of representation in this area is modest compared with the trauma and stress of facing criminal proceedings in the Crown Court.  Click here to read more on funding at the pre-charge stage.

Prosecutors continuing duty to disclose

Throughout a case the prosecutor has a continuing duty to disclose material which may assist the defence. The duty does not stop at the point of primary disclosure.  If the defence draw to the attention of a prosecutor items which may be in the possession of the police the issue must be investigated.  If material which undermines the prosecution case comes to light then it may be considered by the prosecution when assessing whether the case against the defendant should continue.  After all, a prosecutor is also under a duty to assess whether there continues to be a realistic prospect of conviction and whether a prosecution continues to be in the public interest.  Again, this is an area where Olliers will weigh up developments throughout the disclosure process and always consider making representations to the Crown about whether the case should continue.

Conclusion

The issue of unused material is of great significance from the moment an investigation begins. For a proactive defence team it means more than simply ensuring that the police and prosecution discharge  their duties. Dealt with properly, unused material can prevent a suspect being charged as well as ensuring a defendant is not convicted.

If you are facing an allegation involving any kind of sexual offence please contact Matthew Claughton directly on 0161 827 7010 or email him here.