Inspection of the CPS reveals ‘clear weaknesses’ in disclosure decisions

Although there has been some signs of improvement in the disclosure of unused material by the CPS in the Crown Court, it found many past concerns were being repeated and “much more needs to be done”.

Her Majesty’s Crown Prosecution Inspectorate (HMCPSI) said in January this year that “significantly better compliance” with the disclosure regime was needed by both the police and the CPS.

The latest report published today (December 1) by HMCPSI said while there was evidence of improvement in some aspects of performance since the January report, there was “slight deterioration” in other aspects.

While there has been improvement with the completion of disclosure management documents by the police and CPS, and in the timeliness of serving initial and continuing disclosure, the report said the CPS was responsible for a number of “disclosure failings” and much more needs to be done.

“Since the last inspection in January this year, performance had declined in a number of aspects. These included the service provided by the police to the CPS, and the quality of the prosecutor’s review at charging,” said inspectors. “Compliance by the CPS with the statutory disclosure regime at the initial and continuing disclosure stages also showed slight a decline from the performance levels in the last report.”

Inspectors noted that some of the findings set out in this report were likely to be impacted by the service provided by the police, for example, in cases where the police do not identify what is and is not disclosable. However, the inspection also showed that the rate of CPS feedback to the police had declined since it was looked at in January.

Chief Inspector Kevin McGinty said: “Although the CPS has made some improvements, many of the issues highlighted in this report just repeat past concerns.

“Once again there are some clear weaknesses with how the CPS makes effective decisions about the handling and management of disclosure.

“Given this inspection assessed pre-Covid cases and the police and the CPS had secured more resources, it’s disappointing we did not see more of an improvement in casework quality.

“The CPS needs to look at how it can develop a clear focus on quality – and review whether the arrangements it has in place are the right ones.”

Disclosure of unused material is a key component of the investigative and prosecution process. When conducting investigations, the police have to retain every item that is not been used as part of the prosecution’s case against the defendant but which is still relevant to an investigation. Each item is then reviewed to see whether it is capable of undermining the prosecution case or assisting the defence case. If either factor applies it must be disclosed to the defence.

HMCPSI said the slight deterioration in some aspects since the January report may be attributable to differences between the file samples, adding: “Our view is that CPS prosecutors’ compliance continues to improve in respect of carrying out the process, but still has some way to go to deliver casework that could be assessed as of the appropriate quality.”

The Chief Inspector’s foreword to the January report clearly stated that some of the problems were the result of “resource challenges”, adding: “Almost without exception, those faults [referring to casework quality issues] have been caused or exacerbated by the problem of too few legal staff being spread too thinly over a volume of work of ever-increasing complexity.”

Given that this inspection assessed cases from a period before the coronavirus lockdown, when some of the additional staff secured as a result of the Comprehensive Spending Review were in post, HMCPSI said it was “somewhat disappointing that we did not see more of an improvement in casework quality”.

The effective handling of disclosure is inextricably linked to the effectiveness of the prosecution team, says HMCPSI – that is, the performance of both the police and the CPS.

The January report outlined improvements in case quality and compliance by both organisations, but noted that effective training was crucial if improvement was to be maintained. The report said: “If the early signs of improvement found in this inspection are to be sustained, the focus on the National Disclosure Improvement Plan must be maintained and extended to ensure that activity by the police and CPS results in a cultural change at the operational as well as at the strategic level.”

Inspectors said that in this inspection “there is evidence that this focus has started to drift”, adding: “Across most measures, the police’s compliance with requirements has declined. Again, some of this may be influenced by the make-up of the file sample, but given the rates of decline across most measures, it points to a more fundamental problem.

“The service the police provides to the CPS – especially identifying what is and is not disclosable unused material, providing an adequate report on it to the prosecutor to make a decision at charge, and providing complete and accurate disclosure schedules post-charge – is key to allowing the prosecutor to undertake an effective review and deal properly with disclosure.

HMCPSI said some of this report’s findings about the CPS’s performance are likely to be affected by the service provided by the police, adding: “When the police do not identify what is and is not disclosable or provide an adequate report, this has an impact on the prosecutor’s ability to make effective review decisions about handling and managing disclosure.

“However, this inspection also shows that the rate of feedback from the CPS to the police has declined since the January 2020 report.”

HMCPSI says this may be a sign of fatigue or prosecutors beginning to “lose heart that no matter how much they feed back, there are few signs of improvement”.

“This is something that those dealing with the National Disclosure Improvement Plan will want to consider, since there is a risk that strategic intent and actions will not make the difference at the operational level,” said the report.

As the latest report highlights a number of issues that were set out previously, inspectors have now made four recommendations for the CPS:

• That a joint inspection of the handling of disclosure is added to the Criminal Justice Joint Inspection Business Plan for 2021-22;
• That the CPS areas work with the police on a local level to identify and address deficiencies in file quality;
• That the CPS should develop a clear strategy to improve the quality and standard of pre-charge reviews and case file reviews, including the expectation for reviews to consider and address disclosure issues; and
• That the CPS should improve the capability and capacity of legal managers to understand and set clear expectations for disclosure review records and provide clarity of expectations at all stages of review.