Defence lawyers have warned the court system in England and Wales is at breaking point as figures reveal a rising number of cases collapsing because of police and prosecution failures to disclose key evidence.
In the year to 30 June 2021, 1,648 cases collapsed over disclosure failures – more than double the number in 2015/16, according to Crown Prosecution Service figures.
Experts say the official figure may be the tip of the iceberg because of concerns that disclosure failures are not always properly recorded.
A CPS spokesperson said: “We reject any suggestion that the published figures vastly underestimate the scale of the issue. Our method of recording incidents has improved and we are confident that it is reliable. We work with investigators, defence teams and courts across England and Wales to ensure we get disclosure right.”
Police and CPS lawyers are required to disclose evidence to the defence that may undermine their case or be helpful to the defendant.
Liam Allan, 25, from London, was wrongly accused of 12 counts of rape and sexual assault in 2017. The criminology student was cleared after it emerged that police had failed to disclose phone texts that undermined their case.
Allan, now director of The Defendant, a charity that provides support and information for defendants, said police and lawyers were unable to cope with the vast volumes of evidence generated by modern technology, including smartphones.
“They are using completely outdated systems,” he said. “We are supporting people who are just stuck in the system and can’t get hold of the evidence that might help their case.”
The CPS has said that proper disclosure is vital for a fair trial, but admits the criminal justice system has “struggled to get it right”. It launched a National Disclosure Improvement Plan with the National Police Chiefs’ Council (NPCC) in 2018 and said it had led to significant improvements.
Ed Johnston, a senior lecturer in law at the University of the West of England and co-editor of The Law of Disclosure: A Perennial Problem in Criminal Justice, said he suspected the official figures were the tip of the iceberg because disclosure failures were not always correctly recorded.
“Chronic underfunding of the criminal justice system has led to understaffed and overworked police and prosecutors,” he said. “We should consider taking this out of the hands of the police to allow them to concentrate on other aspects of their job.”
Stuart Nolan, a defence lawyer and chair of the criminal law committee at the Law Society, said police and prosecution lawyers did not have the required resources to sift through the extra evidence generated by mobile phones and other electronic devices.
He said: “It can’t be done on the cheap and it has become increasingly difficult.”
Senior CPS officials faced embarrassment earlier this month when it held its National Disclosure Week to highlight the importance of proper disclosure. During the week, a £3m diamond fraud trial at Southwark crown court involving The Only Way is Essex star Lewis Bloor collapsed after the CPS admitted it had failed to disclose some evidence that could have been helpful to Bloor and his co-defendants.
In the same week, a £34m money laundering trial at Snaresbrook crown court in London also collapsed after a judge said there had been “systemic and catastrophic” disclosure failings by the CPS.
Scott Bowen, a defence lawyer at HPJV solicitors in Newport, said disclosure failures reflected the funding crisis in the courts system.
He said: “We have a huge backlog of cases and barristers leaving in droves. There needs to be more investment or the whole thing will collapse.”
In 2016 the Criminal Cases Review Commission, the organisation set up to investigate suspected miscarriages of justice, stated that the most frequent cause of miscarriages of justice was “failure to disclose to the defence information which could have assisted the accused”.
The NPCC said: “Disclosure is a vital part of every investigation. Together with the CPS and the College of Policing, we are closely implementing joint action plans to make sure we implement the change needed to improve outcomes for victims.
Our plans are wide-ranging and we are making good progress, but as these latest figures show, there is much more to do.”