The director of public prosecutions has apologised for failings in the criminal justice system after a review found 47 rape or sexual offence cases were halted because evidence had not been properly shared with the defence.
The prosecutors and police review followed media revelations about disclosure – the duty of the prosecution to share potential evidence with the defence, even if it undermines their case.
Alison Saunders, the outgoing head of the Crown Prosecution Service (CPS), told the Commons justice committee that disclosure was a “longstanding systemic issue” that the CPS and police had failed to properly tackle.
Asked whether victims and people wrongly charged were owed an apology, she replied: “Absolutely. I feel every single failure. It is not something that we want. We have been very clear about where our failings are. We will apologise for those.” She said new initiatives in place “will make a difference”.
The police and CPS set up a review of every rape and serious sexual assault attack case going through the criminal justice system in January and February this year. It examined cases where someone had been charged and pleaded not guilty.
Of 3,637 cases reviewed, disclosure was of concern in 47 cases, the CPS said, and these cases were discontinued.
The findings of the review, which looked at only one type of case and over a small time period, triggered concerns that more errors may have occurred.
The miscarriage of justice watchdog warned about disclosure problems two years ago, followed last July by the official inspectorate of the CPS.
Saunders said she accepted prosecutors had in some cases been disclosing material too late, meaning some defendants could be on bail or on remand in custody for many months before information was disclosed that led to cases being dropped.
She said as part of improvements the CPS and police had agreed to bring in disclosure scrutiny earlier in the process, “because I quite appreciate the impact it has on people’s lives”. There was a sense or urgency, she said.
The disclosure process should be “almost pre-charge, rather than waiting for it to get into the system where we are up again a time clock in court,” she told MPs. All 3,000 prosecutors were receiving retraining. “This isn’t just a file of paper. This is somebody’s – a lot of people’s – lives we are making decisions on.”
One key issue facing prosecutors and police is the explosion in digital material from victims and suspects on phones and social media, which threatens to overwhelm investigators.
Social media presented huge challenges, Saunders said, and the CPS had been too slow to respond. It was a challenge dealing with pages and pages of social media downloads. She said informing the courts and defence early on about the prosecution’s “reasonable lines of inquiry” would help disclosure issues in such cases.
The attorney general is reviewing what can be done. One new measure will be defence lawyers being asked what evidence their clients want police to look at. For prosecutors, it gives them an earlier sight of what the defence case might be.
Nick Ephgrave, the chief constable of Surrey police, told the committee that disclosure failings had a “catastrophic effect” on individuals and on confidence in the criminal justice system.
As part of a national disclosure improvement plan, police forces throughout England and Wales had introduced “disclosure champions” – go-to senior officers “at the top of organisation” – to advise. Officers were being offered disclosure training and being drilled in the “four Rs” of evidence: retain, record, review and reveal.
Ephgrave disagreed that a performance-led culture judged on results encouraged disclosure failings. “Things have changed quite a lot in the way police approach performance,” he said. Getting a conviction was “not the be all and end all … I would like to think the culture is more sophisticated.”
Mike Cunningham, the chief executive of the College of Policing, said officers were being trained that disclosure was “an integral part of investigation”. The focus was to challenge and change any old attitudes that it was a “bureaucratic add-on” or a “blinking tortuous piece of work”, he said.
The cases included those of 14 suspects who had been held in custody on remand before the case against them was halted. The cases in all involved 48 people, one of them female, and a disproportionately high number (23) were in the Metropolitan police area, which covers most of London.
Angela Rafferty QC, the chair of the Criminal Bar Association, said of the results: “For the CPS to question the reliability of not just a few but dozens of live rape and sexual offence cases out of a limited sample size of a few thousand will inevitably cause great consternation that some innocent people are already in prisons and many guilty may be walking free.
“We await the wider parliamentary review of the whole disclosure system that is now due – dealing with all criminal cases including sexual offences.”
Stuart Prior, of the National Police Chiefs Council, which is coordinating the response of 43 forces to the crisis, said: “We have got it wrong in too many cases. We have been slow in addressing the issues. We needed to have acted quicker.”
