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Criminal (lack of) Disclosure

In a case recently (Feb 2000), a judge threw out a drugs prosecution. Apart from the failure of the system to decide the guilt or innocence of the parties, the case cost over five million pounds to come to court. It was a big case. Because it was a big case, the pressure was on the police and on CPS (the Crown Prosecution Service) to secure a committal.

By co-incidence, the prosecution failed, and repeatedly, and apparently with some determination, to disclose to the defence all manner of bits of infromation in their posession which would have been of assistance to the defence. More than one court order (as well as the general law), was re-interpreted so as to limit the obligation to disclose.

No doubt many, or even most, individuals in the prosecution team were honest and diligent. Equally, and without doubt some few were not. The resulting injustice of the prosecution led to the judge throwing it all out - and rightly so.

In any criminal prosecution, the police gather large quantities of information, and all sorts of things are logged by them. Somethings they think will be relevant, and some not. The defence team have to make a similar assessment, but will usually come to a different conclusion. The silly, perhaps even evil, fact however is that the officers involved in the case have almost exclusive control over what the defence sees.


In one more local case recently, a young man was charged with an assault on a constable, putting him at risk of a prison sentence. He claimed that it was the police officer who had begun the assault. On the day of the trial, the defence team had disclosed to them the contents of a 999 log which demonstrated facts clearly supporting the defence version of events. It was listed on a form which is central to all criminal cases. This form is a list of the papers in the case prepared by the 'disclosure officer.' In this case, and despite it being quite clear to all involved, the officer, his fellow officers, immediate superiors, and the Crown Prosecutor, that the issue was the possible criminal behaviour of that particular officer, that officer was appointed to take control of what was disclosed. He had marked on the paper that nothing in the log would be of assistance to the defence.

There is an old latin maxim 'nemo judex in sua causa' - nobody should be a judge in his own cause. There is an equally simple principle of English Common law of the right to natural justice, and a fair trial. There is an even clearer statement of binding law in the European Convention on Human Rights, to the effect that a defendant in a criminal case is entitled to a fair trial.

English law allows, and even encourages, a police officer to act as judge and jury in almost every case he manages. The Criminal Procedure and Investigations Act 1996 (pace Michael Howerd) is the offending beast.

In the seventies and eighties, our legal system had a whole series of real and vicious miscariages of justice. The Police and Criminal Evidence Act 1984 improved that greatly. This Act, as promised at the time will create just as many again.

Let us be quite clear. The Police are withholding from the defendant and from the court information which would tend to show the innocence of that defendant. The system encourages them to do so.

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
All information on this site is in general and summary form only. The content of any page on this site may be out of date and or incomplete, and you should not not rely directly upon it. Take direct professional legal advice which reflects your own particular situation.
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Copyright and Database Rights: David Swarbrick 2012
18 October 2013 http://www.swarb.co.uk/lawb/crmDisclosure.shtml 237 18 October 2013