Our Investigation Skills Trainer, Kylie Wilson, who is also an experienced mentor for trainee investigators shares her thoughts on the current issues around disclosure of unused material. Kylie’s experiences focus on Police Officers, but this applies equally to anyone who investigates and prosecutes Criminal Offences.
Disclosure and the Court
When it comes to the theatre of court, disclosure is now the main player. There are tactics and tricks that are commonly used to discredit or undermine the prosecution, or more specifically the abilities of the Police Officers who have worked on the case.
Exhibits and witnesses used to be the biggest issues and likely source of a case failing, now these are managed more robustly and the evidence usually stands for itself in this technical age. CCTV, digital material, screen shots and the like are undeniable.
Disclosure, processes and paperwork are now the issue. For example, a drink drive case with infallible evidence from breath, urine or blood samples which absolutely shows the party to be guilty. No way of wiggling out of that one?
You would think so, but in fact the defence show a weakness in the case because a medical certificate has been requested to show that the person taking the sample was trained to do so. The defence waits for the last possible minute to request this information, knowing it takes time for their request to go via CPS to the officer and then to be actioned.
The certificate is not obtained in time and so the case fails at court due to lack of disclosure. Or alternatively, the officer receives it fairly quickly and understands what they need to do and obtains the certificate in time, so this time the defence decide that the nurse is now a vital witness and as such requires them or the scientist that examined the sample to attend court to give evidence.
If by some miracle the nurse or scientist agrees, usually by a live link to the court to give such evidence (as they do work some 200 miles away) the defence may well decide on the day that it is not agreed that they can deliver their evidence in this way and insists they must attend the court. The 200 mile distance means they cannot and the court dismisses the case. These are all examples I have seen over the last few months.
Not that the police and CPS don’t hold some of the blame. I used to always attend the plea and case management hearings for my cases and I was given the freedom to do so. Ask most officers whether they have attended court and you will find Detectives who have not. Most uniformed officers will very rarely attend court and so when they do they have no idea of the protocols.
Most of us cut our teeth on sitting in court and hearing other cases winning or failing on the actions of officers and I can feel the embarrassment still of sitting in the Crown Court with CPS and Defence arguing a point and the Judge asking where the Officer in the Case was to be able to settle the matter. When they weren’t there invariably the Judge was enraged. Officers do not habitually attend now, so what is happening?
I have on occasion stood up in court when an inexperienced prosecutor stated “no objections to bail” for a case I had previously spent an hour explaining to them to ensure a remand. Fortunately, the Clerk of the Court pointed out I may have had a different opinion and I was invited to the box to give the grounds on which a remand was being applied for.
Defence statements are another tool in the arsenal, they should be served 14 or 28 days (dependent on the court) after the initial disclosure setting out the defence case. CPS should chase these when they are delayed, officers should be thinking to themselves that if they haven’t received one it might be a good idea to chase it with CPS or bring it up at the Pre-Trial Preparation Hearing (PTPH).
However, as most officers don’t attend the PTPH they have no idea what is happening, what deals are being made, the fact that maybe the prosecutor hasn’t even read the file properly as it is one of ten they have on their workload that day and the details are lost on them.
So, when does the Defence Statement appear, the one with the defence outlined that might trigger further enquiries that might prove the defendant innocent? In my experience, on the Friday before the trial starts on the Monday.
The hapless investigator on reviewing this Defence Statement realises there may be some material that is relevant after all, now the defence is laid out, as the suspect maintained their right to silence in interview, they are only seeing this information for the first time. On reviewing said material they find something that indeed ‘undermines the prosecution case or assists the defence case’ and they have no choice but to reveal this at court on Monday morning as is their duty.
Cue the headlines and a formerly robust investigator who was ‘making it work’ who is now moved, restricted as to their duties, depressed and soon to be off sick.