What is Disclosure in a Criminal Case?
You may have heard of a number of high profile rape and other serious cases collapsing recently due to a lack of disclosure. But what is disclosure? As experts in Criminal Defence, Emery Johnson Astills can explain.
When investigating a case the police gather material, such as witness statements, CCTV recordings, mobile phone data and suspect interviews. Any of this material that the investigator considers to assist in proving the offence is used as evidence, and is automatically served on the defence solicitors when a defendant is charged and appears in court. Any material that isn’t used as evidence becomes ‘unused material.’ This unused material becomes disclosable to the defence if it can either undermine the prosecution case, or, assist the defence case. For example, in one recent case, mobile phone data was eventually disclosed to the defence in a rape case as it contained messages from the alleged victim to both her friends and the defendant which suggested that any sex between them had been consensual. This material was clearly capable of undermining the prosecution case that sex had not been consensual and prosecutors took the decision not to proceed with the case and ‘offered no evidence’ resulting in a formal acquittal.
Police and prosecutors must continually review disclosure throughout the life of a case to ensure relevant material is disclosed. They should further review the material depending on; what any suspect says during police interview, when a defendant enters a not guilty plea at court, when the matter is transferred to the Crown Court, when the prosecutor drafts an indictment in the Crown Court, and when a document called a Defence Case Statement is served by the defence. However, at any point when further material comes to light that would be disclosable, police and prosecutors should make sure it is disclosed even if a review of the material is not due.
Sometimes disclosure will result in prosecutors reviewing the decision to prosecute, in others, they may consider that although the material undermines the case, there is still a realistic prospect of conviction.
Police and Prosecutors say they are not deliberately failing to disclose relevant material, but are under resourced to deal with the amount of material they come across in investigations. However a Police Disclosure Review has committed to implement further training where necessary and develop a disclosure improvement plan together with the Crown Prosecution Service.
Should you find yourself accused of a criminal offence, your Emery Johnson Astills solicitor will advise you on disclosure issues in your case. She will seek to ensure that the prosecution reviews the case where necessary and will draft a defence case statement if appropriate, and advise you on how disclosed material could be used to support your defence.