The new DPP must revive disclosure rules

The CPS needs fewer policy statements and more independence and objectivity

To be fair to the outgoing Director of Public Prosecutions, Alison Saunders, the job of running the crumbling Crown Prosecution Service was a chalice overflowing with poison – since 2010, the organisation’s budget has fallen by 25 per cent, and it has lost a third of its staff. I defy anyone to make a silk purse out of that sow’s ear.

But the question remains: did she do the best she could in those very difficult circumstances? What will be her legacy?

The basic job of the CPS is to review evidence provided by the police, authorise the charging of defendants, and instruct prosecution barristers.

In that way, half a million people are prosecuted each year, and as long as the CPS and the police are doing their jobs properly this is good news for everyone (apart from the criminals).

Unfortunately, on Ms Saunders’ watch, there has been a growing sense of problems surrounding one crucial area of practice: disclosure. When the police investigate offences they come across a lot of material – from interviews with witnesses or defendants, or data gathered from CCTV cameras, mobile phones, and computers – which officers may believe is irrelevant to the case.

All of that evidence, however irrelevant it may seem, should be supplied to the CPS and reviewed by CPS lawyers. Doing so provides a backstop, so that evidence which actually undermines the prosecution or assists the defence – because the job of the police is to investigate impartially, not just to nail the poor presumed innocent suspect they have in the cells – gets seen by defence lawyers.

There have been numerous recent cases, some of them very high profile, where this has not happened, and it’s in the area which Ms Saunders championed most vociferously that it has garnered the most headlines.

She was keen from the off to put more sex offenders before the courts. There was an expansion of RASSO (Rape and Serious Sexual Offence) Units, where the CPS work more closely with the police, and in Ms Saunders’ first year alone prosecutions increased by 30 per cent, which she described as “good news.”

It is, of course, very good news if more rapists are being jailed. But what if innocent men are caught in the net?

The case of Liam Allan sent shockwaves around the legal world. Mr Allan endured two years of living hell waiting for his rape trial to start at Croydon Crown Court, and all along the police were sitting on evidence which exonerated him – some 40,000 text messages from the alleged victim’s mobile phone, some of which proved that her accusations were wholly untrue. One text to a friend read: “It wasn’t against my will.”

It was only when Jerry Hayes, the independent prosecution barrister, insisted that this unused material be given to the defence – three days into the trial – that it all collapsed, and Mr Allan’s ordeal was over. Even then the police – on a similar crusade to Ms Saunders – made a statement referring to the false accuser as the “victim.”

This was not an outlier. Last year, 916 defendants were wrongly accused of crimes due to non-disclosure of vital evidence by the CPS – there was a 70 per cent rise in cases being dropped for this reason.

Defence lawyers often face a Catch-22. To demand sight of all unused material you must show that it’s relevant to the case, but you can’t easily show its relevance until you’ve seen it. Judges are naturally minded to take the prosecution’s assurance that it is irrelevant.

In my experience, this is usually about money – it takes a lot of time and expensive hours to review tens, even hundreds of thousands of pages of text messages and emails, and it’s easy to imagine cash-strapped CPS lawyers simply accepting the police view.

But when both the police and the Crown Prosecution Service are striving, no doubt from good motives, to increase the prosecutions for sexual offences it is not hard to imagine that there might be politics involved, too.

I hope the next DPP will issue fewer policy statements and work to improve the independence and objectivity of the CPS. Irrespective of budget cuts, corners should not be cut. Disclosure of vital evidence should be at the heart of the criminal justice system.