“Where both the defence and the prosecution are inadequately funded, miscarriages of justice are bound to occur.”
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Marc Bloomfield
Non-disclosure of evidence within criminal proceedings is a topic that has dominated the news in recent weeks. The highly publicised cases of Liam Allan and Isaac Itiary force us to question whether current disclosure requirements are robust enough to safeguard those accused from potential miscarriages of justice.
The application of proper and fair disclosure is a vital component of any criminal justice system. The ‘golden rule’ is that fairness requires full disclosure to be made of all material held by the prosecution that weakens its case or strengthens that of the defence. Concerns about the disclosure of evidence within criminal proceedings are not new. Cases such as the Birmingham Six and the Cardiff Three remain frightening reminders of how non-disclosure can result in wrongful convictions.
It was only in July 2017 that a joint inspection by Her Majesty’s Crown Prosecution Service Inspectorate and Her Majesty’s Inspectorate of Constabulary identified widespread failures across the criminal justice system when it came to disclosure of evidence (Making it fair: the disclosure of unused material in volume Crown Court cases, July 2017). The inspection found that police routinely failed to comply with requirements to list all undisclosed evidence in sufficient detail to enable prosecutors to decide if it should be disclosed to the defence. Of the disclosure schedules examined, 22 per cent were found to be ‘wholly inadequate’. In addition, the report identified that in some cases involving sensitive evidence, potentially undermining material was only disclosed late or not at all in circumstances where a miscarriage of justice was only narrowly avoided.
In a recent letter to the Guardian (22 December 2017), LAG and Legal Action author Ed Cape recommended that ‘[s]ubject to suitable safeguards (in particular, with regards to sensitive material), the police should be placed under a clear obligation to disclose everything that they uncover in an investigation’. This would, at the very least, ensure evidence is not missed.
Legal aid reforms have resulted in wide-ranging difficulties for criminal defence firms. Cuts to criminal legal aid have had a vast impact on the way in which criminal cases are conducted. The introduction of the fixed fee scheme (Criminal Legal Aid (Remuneration) Regulations 2013 SI No 435 as amended) has had a particular impact in relation to disclosure. The fixed fee scheme results in payments to defence solicitors being made on the basis of three categories: type of offence; number of defendants; and number of pages of prosecution evidence. Unless otherwise provided within the regulations, all work conducted on the matter is counted as included within the fixed fee. To give an example, the fixed fee for a standard rape trial (a class J offence) is £1,467.58 (Criminal Legal Aid (Remuneration) (Amendment) Regulations 2016 SI No 313 Sch 1 para 2). This equates to approximately 32 hours of work.
It is hardly surprising that issues concerning disclosure are often left unresolved until the door of the courtroom, if indeed they are resolved at all.
The Crown Prosecution Service (CPS) budget has also faced deep cuts. By 2016, the CPS had experienced cuts of 25 per cent over the previous six years, including a reduction of 2,400 in numbers of staff. These budget cuts have, inevitably, negatively affected the ability of CPS lawyers to consider documents provided by the police, to determine whether it is necessary to disclose them to the defence legal teams under the Criminal Procedure Rules. In these circumstances, it is hardly surprising that issues concerning disclosure are often left unresolved until the door of the courtroom, if indeed they are resolved at all.
These cuts to key elements of our criminal justice system have, combined, resulted in shocking failures such as those that have been so widely reported upon in the Allan and Itiary cases. Where both the defence and the prosecution are inadequately funded, miscarriages of justice are bound to occur. This demonstrates the danger that austerity poses to our criminal justice system. Criminal firms with legal aid contracts are now under such pressure to survive that it is more difficult than ever to ensure all unused material is fully considered and all potential avenues of defence pursued.
Failures of disclosure have already caused miscarriages of justice – for example, the case of John Kamara, who was imprisoned for 20 years before the Criminal Cases Review Commission referred his murder conviction to the Court of Appeal on the basis of over 200 witness statements that had not been disclosed to his defence team at trial. After spending two years on bail awaiting trial before the relevant disclosure came to light, Allan will undoubtedly feel anger about these wasted years. Itiary spent four months on remand in prison before the charges against him were dropped. Unfortunately, their experiences are not uncommon.
The difficulties caused by the fixed fee scheme and the impact that these have on the justice system as a whole are clear. Issues such as these are seemingly endemic and it is justice that suffers, with those who rely on legal aid funding becoming victims of a two-tier justice system created by a woeful lack of funding.

About the author(s)

Description: Anna Jemmison
Anna Jemmison is a criminal defence solicitor at LLM Solicitors. She is a committee member of Young Legal Aid Lawyers.
Description: Katie McFadden - author
Katie McFadden is a solicitor in the actions against the police and civil liberties team at GT Stewart. She is a former co-chair of Young Legal Aid...