There has been much criticism that the original test for primary disclosure in s.3 (1) (a) of the 1996 act was seriously flawed because (a) the words “in the prosecutors opinion might undermine (the prosecutor case)” invited disclosure only of material that might have a fundamental effect on the on the prosecution case and (b) the test was subjective. Parliament has modified the test in s.3 of the 1996 Act to an objective one, requiring the prosecutor to disclose material at a primary stage if it “might be reasonably considered capable of undermining the case for the prosecution against the accused, or of assisting the case for the accused.Criminal Procedure and Investigations Act 1996 s. 3(1) (a) states: The prosecutor must; (a) Disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining] the case for the prosecution against the accused or of assisting the case for the accused.
One of the main cases that sparked the debate was the case of R v Allan 2017, where Liam Allan, a student at the university of Greenwich, was charged with six counts of rape and six of sexual assault. In the middle of the trial, significant evidence of mobile phone messages sent by the complainant including messages she had sent asking Mr Allan for sex. The Police had held this material electronically. It is blatant that the electronic evidence found should have been disclosed; therefore the case against Allan was dropped.
Unfortunately at this point Mr. Allan had already spent almost 2 years on bail, and, if convicted, would have served a harrowing term of imprisonment of the maximum sentence for rape, which is life imprisonment, and, for sexual assault, a 10-year sentence. What otherwise would have been a wrongful conviction was only averted at the 11th hour when the trial judge took the initiative to ask for an inquiry to determine why this material was not disclosed from the onset. The fact the judge had been the only one to acknowledge this fault further presents the lack of precision within the police and the CPS of handling disclosure material appropriately. The CPS have addressed and acknowledged that there is an issue with their disclosure regime and that these are a result of deep financial cuts, which have led to a chronic lack of resources. Also that significant additional workload placed upon lawyers and the police are to blame for the current crisis and lack of confidence in the crown prosecution service handling disclosure material. Nevertheless, they have admitted that “disclosure issues are systemic and deep rooted. It emerged that 900 criminal cases in England and Wales were dropped last year. Figures obtained by the BBC under freedom of information showed had been dropped in 2016-17 due to a failure to disclose evidence, up 70% from 537 in 2014-15. These figures display the lack of effectiveness of the current regime and how it obstructs justice.
Criminal Procedure and Investigations Act 1996 has been amended previously to improve the condition of disclosure in courts. However this statute needs to be amended further as to include a provision compelling the police and the CPS, to serve material evidence not “as soon as is reasonably practicable” after the evidence for the charge or charges is served upon the defence, as this breeds procrastination and leaves matters to be treated as less urgent then they truly are. This is especially for sensitive cases such as rape and sexual assault. Instead the amended version should impose a reasonable time limit (for example 3 months) in which it is mandatory to disclose. This is beneficial, as it will allow the defence to examine how strong of a case they may have at an earlier stage. Sir Brian Leveson P in the case of R v R and others stated that; (a) the prosecution is and must be in the driving seat at the stage of initial disclosure, and should produce a Disclosure Management Document identifying the overall disclosure strategy, selection of software tools and search terms and means of addressing potential privilege issues. If the CPS were in the driving seat from the primal stages of disclosure in cases like Allan’s this would have reduced the amount of innocent people being held on bail or in custody for any longer than necessary.
It is important to acknowledge the tremendous pressure those who are wrongly charges receive. There is currently not obligation to keep rape suspects anonymous this means that although they are on bail they are subject to abuse, isolation from friends and family members who refused to contact them or they have been banned from contacting them, deterioration of character and un top of this are bound to a curfew, restricted from certain areas and must hand in your passport to the police whilst also having to report to a police station at agreed times. This will obviously negatively impact the accused especially they are innocent.
The only limitation to this suggestion is the counter argument about the workload increase placed upon lawyers and police and if there will be time for them to even process these concerns at an earlier stage. There are currently Disclosure plans in discussion in order to combat this; there have been proposals to implement to hiring of disclosure experts specifically to bridge to gap of the work. Inevitably the issue of costs will be a counter argument nevertheless, all solutions to this problem will be costly it is more a matter of what is going to be the most effective as well as being financially acceptable.
Social media erupting has lead to major changes in how the police and the cps look into evidence. Although it is clear that as times have evolved the system has failed to evolve with it, being extremely dated as it was created in the era before the outbreak of social media and this leaves a blind spot for crucial evidence to be overlooked.
It is said that shifting through social media evidence and digital devices had imposed “real challenges for the police service”, with the average smartphone containing the equivalent of 30,000 pages of A4 paper in information. This is undoubtedly too much information to analyse and often results are lacking. Dr Jan Collie, of Discovery Forensics, who specialises in defence work has said “A lot of police stations have mobile phone extraction kiosks where they put a mobile phone in and press a couple of buttons, but it’s not enough analysis. A police officer who has been trained for about a day can use the equipment. He can click it in and handle the buttons, but often they spoil the evidence by mishandling. There are in fact many trained professionals to deal with digital evidence, yet due to the cut in their wages they resign. And also due to cuts when they have officers who are willing to be trained the cps cannot fund the courses. These impractical methods limit the quality of evidence being used in cases to the detriment of the defendant.
A way to contests these underlying problems may be through way of artificial intelligence. With the standard of technology today it is more than possible produce artificial intelligence to sift through the masses of digital evidence. This is a more effective approach as a machine will be able to work faster and assess the evidence in more detail than a human being, this will reduce the margin for error, which could have proved people such as Liam Allan where innocent. Some may argue that artificial intelligence is still in the testing stages. However artificial intelligence has been discussed and researched since the early 19th century and has been used in almost all areas of society for several decades now. The Logic Theorist, designed by Newell and Simon in 1955 may be considered the first AI program. In addition to this in this current year AI has improved vastly with wonders such as the AI robot named Sophia who can hold intellectual conversations and understand the context of the human language. This type of intelligence can be put to good use in the disclosure cases where the volume of evidence is unbearable.
Rape culture is a topic of concern, which is often not talked about; it is the psychological mind-set of society to believe the claimant in a rape case. This unconscious bias not only affects the public but also the police and the CPS. For example when there is a case and the evidence against the defendant appears to be extremely compelling, this could lead the police to become more sluggish in their approach to search diligently for more evidence that could prove otherwise. And with the currently failings of the CPS under the current review there may be an alarming number of innocent people being submitted the mercy of the stigma of rape, which can cause many psychological and domestic problems drastically reducing the accused quality of life even after declared innocent. It may be of use for police to be educated in the area of Rape culture and make it a conscious effort to not succumb to this as they still have a duty to disclose relevant material despite their personal bias. This solution is cost effective and time effective.
A requirement of the CPIA is that officers are to be fair and most importantly objective yet sadly a major concern surrounding sensitive cases is the inability of the prosecutors and the police to honour the gravity of their obligation to disclose material that can undermine the case of the prosecution or aid the case of the defence. When the CPS and police were investigated and several cases were review in regards to disclosure it was found that; the police in fact did not bring to the attention of the CPS evidence that would weaken their cases. In addition to this, the CPS does not bother to question or inquire about the quality of the material handed over to them at all. Neither the prosecutors nor the police are up holding their statutory duty of disclosure to assist the defence. This is clearly unacceptable as figures of authority and law enforcement themselves, it is nothing short of an abomination which has disappointed many people into believing they should take matters into their own hands fearing the legal system will fail them. Leading to increased rates in crime and resentment towards the police. Although this is a vast and complex area a simple tactic to help remedy this would be to increase communication between the defence and the CPS and police especially in sensitive cases such as Rape and Sexual crimes with large volume of evidence. Specifically speaking this means allowing the defence to have an input in which evidence should be disclosed, they should be able to request information to be disclosed if the police have determined it as not relevant enough, depending on the reasonable definition of relevancy in context of the case, which they will discuss amongst each other. This will aid in diminishing police bias and subjectivity matters. A mentionable case to refer to would be R v R and others  EWCA Crim 1941 previously mentioned, in which Sir Brian Leveson P laid down a number of principles in regards to disclosure of unused material; (b) there must be prompt and proactive dialogue between the parties, with defence statements playing a valuable role where there has been actual or purported initial disclosure, as to which the courts should not employ a counsel of perfection as to the nature and extent of initial disclosure; (c) the process of disclosure has to be subject to robust case management, with the court prepared to give orders and directions even at the initial disclosure stage; the aim of this process being to drive the disclosure process efficiently to expeditious resolution of the case. These principles also aid to adhere to the overriding objective of the criminal procedure rules 1.1 Principle (b) emphasises the need for more open communication between the defence and CPS and (c) Highlighting the need for the case to be resolved expeditiously and this cannot be achieve with the co-operation of the CPS.
A more radical solution to the issue of police bias would be to revoke the burden of the responsibility of disclosure from the police by incorporating a third party organisation that are highly trained in disclosure instead. This of course is a costly investment and would require considerable amount of funding. The counter argument to this is the new third party organisation may in fact develop a bias also and the problem will repeat. This is the inherent risk (although very low) of this remedy. Overall the point of the third party organisation would be to separate the individual from the investigation enabling them just to focus on the material evidence making it far less likely to adopt a bias. Furthermore in conjunction with this increasing personal liability on the prosecution should be considered as a deterrent from imposing any personal bias. As the act of deliberately excluding something relevant is almost equivalent to perverting the course of justice, which can only be tried on indictment and has a maximum sentence of life imprisonment. Life imprisonment may not be an option in this case due to the fact the difficult decisions they had to make are a part of their duty. Although some may be reluctant to accept this, there must be more measures when it comes to managing the police and CPS as they are essentially deciding the fate of someone’s life.
The argument that some officers are not purposely imposing their bias opinion in matters of disclosure and are actually completely un-aware of the weight of the material is completely possible. Officers may benefit from additional training in matters of disclosure so that this systematic issue does not obstruct justice. Article 6 of the human rights act , the right to fair trial is essentially being compromised until this issue is resolved.
For the CPS to review the credibility of not just a few, but a few dozen cases of sexual assault and alleged rape out of a sample size limited to a few thousand, and discover that essentially there are innocent people incarcerated while the real perpetrators walk free, will cause a long overdue conversation backed up with some action to restore the publics faith in the police and CPS.