How widespread are the issues around disclosure?
I think the one of the most significant problems we have with disclosure is that we have no idea of the extent of the problem (the Donald Rumsfeld ‘unknown unknowns’) The CCRC has stated consistently that non-disclosure is the biggest single source for referring cases but this is probably just the tip of the iceberg.
Has the impact of new forms of digital evidence on disclosure been as significant as some commentators have indicated or are there other underlying problems that need addressing?
Digital disclosure has massively increased the workload involved in disclosure if you consider how many tweets, texts, WhatsApp messages, Facebook and Instagram posts somebody might send in the course of a week/month/year. There are also considerations around the privacy of the complainant and third parties (e.g. a text exchange between the complainant and a friend about something personal) and how much of this the defence should be able to see.
What steps should be considered to resolve concerns around disclosure?
Other underlying problems include the entire structure of the disclosure regime – the cultural difficulties of expecting the police to select material that may be helpful to the defence and having to keep a case under review that they have largely finished investigating. It is also impossible to ignore the effects of the swingeing cuts to police and CPS budgets with the loss of experienced staff and the savage cuts to legal aid which mean that barristers are no longer paid for doing this crucial work.
Besides disclosure are their other evidential issues that need addressing within the justice system?
There needs to be a review of the extent of the disclosure problems. The CPS review stopped 1% of cases due to disclosure failings but it has not revisited any concluded cases. The CCRC is undertaking a sampling exercise but, it receives only 1,500 applications a year.
What change would most improve how the justice system operates?
The most pressing issue is the lack of funding for all parts of the criminal justice system from 999 calls going unanswered through to courtrooms being unfit for use and the haemorrhaging of defence lawyers. Perhaps tied in with this is the culture of managerialism that has developed over the last 25 years, obliging suspects to cooperate with the investigation and trial process. The presumption of innocence is a fundamental principle that – whilst still given lip service – has been undermined but managerialism and also the desire to improve convictions in sexual assault cases. Important evidential protections have been removed and the police told to ‘believe victims’ which goes against all the efforts that had been made to reduce the potential for miscarriages of justice.
Dr Hannah Quirk is a reader in criminal law at King’s College London. Her research interests include wrongful convictions / miscarriages of justice, sentencing, right of silence. Hannah is on the editorial board of The Criminal Law Review and Legal Studies. She appears regularly in the media discussing aspects of criminal justice.