Legal System: Prosecutorial Policy

Lord Thomas of Cwmgiedd Excerpts

Thursday 18th January 2018 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

This is a timely debate, and I shall deal with only one of the questions posed, namely the one about disclosure. I do so because this problem ought to have been solved many years ago. It is the continuing failure to solve it that I shall concentrate on.

Essentially, the one point I wish to make is that the law in relation to disclosure is clear, simple and fair: fair to the defendant and to the complainant or victim. What has gone wrong, however, is the successive failure, over many years, in implementing the law and having proper procedures on the part of the CPS and, more particularly, the police, to ensure that the law is complied with.

I will elaborate a little on this. The law was set out in the 1996 Act and is clear, with its codes of practice and the Criminal Procedure Rules that have been made alongside it. There were, however, issues, and in 2011 the noble and learned Lord, Lord Judge, the then Lord Chief Justice, appointed Lord Justice Gross to look into the entire system. He looked at what happened in the United States and in continental countries to see if we could learn anything. He came back with a very clear recommendation that no legislative change was needed but that a great improvement was needed in how it was handled in this country. In particular, he recommended that there should be a proper recognition of the consequences of the electronic and digital age. In 1996, it is fair to say, the proliferation of documents could not have been anticipated. The focus of Lord Justice Gross’s excellent report was the problem that had arisen in serious fraud and similar cases. He was not concerned with the problem that has come to the fore recently.

As a result of Lord Justice Gross’s report, in December 2013 the then Attorney-General, Mr Dominic Grieve, issued a further guidance on disclosure. At the same time I, as the then Lord Chief Justice, issued, with him, an agreed protocol for dealing with unused material. We both emphasised that the proper disclosure of unused material, made through a rigorous and carefully considered application of the law, remains a crucial part of a fair trial and essential to avoiding miscarriages of justice.

We both realised that there was no point in these fine words and fine documents without putting in place a system of training and explaining what should happen. That was undertaken. However, as the noble and learned Lord, Lord Morris of Aberavon, has mentioned, it became apparent in 2015 that what had been hoped for was not being done. Part of the explanation may be a huge rise and change in the use of social media in sexual cases. In the old days you had very little by way of disclosure; now, you have massive amounts. From my experience of reading through it, what is exchanged on social media came as a great surprise to many of my age. It is, however, critical, because it shows how the relationship is and, in particular, what may have happened.

In the case to which the noble and learned Lord referred, it was clear—as the trial judge found—that there had been gross incompetence on the part of the police officer. As we caused inquiries to be made of the chief crown prosecutor and the chief constable, it was clear that the fault was systemic. At the end of the judgment we said, in the court, after referring to another 2015 case, that we hoped that that case, and this one, would receive the closest study by the chief crown prosecutors and the chief constables, as there should be no recurrence of failures of this kind by either the CPS or any police force. That was more than two and a half years ago.

We considered asking the Criminal Procedure Rule Committee to see if some kind of supervision could be imposed by the courts, in imposing sanctions for a failure to comply with the law. It was thought, however, and resolved by the Criminal Procedure Rule Committee that this would be impractical and have collateral consequences.

Two noble Lords who spoke earlier referred to the report of the Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary. It is an excellent report, conducted by two people of great experience. Their conclusion is so important that it is worth reading in full—it is a short paragraph:

“Non-compliance with the disclosure process is not new and has been common knowledge amongst those engaged within the criminal justice system for many years and it is difficult to justify why progress has not previously been made in volume crime cases. Until the police and CPS take their responsibilities in dealing with disclosure in volume cases more seriously, no improvement will result in the likelihood of a fair trial can be jeopardised”.


The report set out a number of recommendations. It was six months to the day that the report was published, and various things should have been done within six months.

I therefore very much hope that the Minister will obtain from each chief constable and each chief crown prosecutor what has been done. We can no longer continue this failure of accountability. There is a very broad issue to which the noble Lord, Lord Beith, referred about the accountability of the relationship. Time does not permit that but what we must surely do is to have concrete action on the accountability of chief constables, who really are not accountable for this matter, and much closer scrutiny of what is happening in the CPS. I very much hope that the Minister will undertake this task and put before the House the responses of the chief constables as to what they have done. It is a disgrace—I do not use that word lightly—that this problem has been left unresolved for so long.