The Significance of Culture in Criminal Procedure Reform: Why the Revised Disclosure Scheme Cannot Work
| Author | Hannah Quirk |
| Published date | 01 February 2006 |
| Date | 01 February 2006 |
| DOI | http://doi.org/10.1350/ijep.2006.10.1.42 |
| Subject Matter | Article |
The significance of
culture in criminal
procedure reform: Why
the revised disclosure
scheme cannot work
By Hannah Quirk*
School of Law, University of Manchester
Abstract Disclosure of unused material is essential to a fair trial, and non-
disclosure has been a potent cause of miscarriages of justice. In England, Wales
and Northern Ireland, however, recent legislation addressing this issue has
prioritised the alleged problems that disclosure causes to the prosecution, rather
than its demonstrable importance as a safeguard against wrongful convictions.
Despite amendment by the Criminal Justice Act 2003, it is argued that the
controversial disclosure provisions of the Criminal Procedure and Investigations
Act 1996 cannot be made to work. This is a consequence of three fundamental
defects in the statutory scheme: lack of consideration of the working cultures
and practices of the key protagonists; the resulting inappropriate allocation of
responsibilities; and insufficient recognition of the limited sanctions for
disclosure failures that can be imposed fairly upon defendants under the current
system. It has long been recognised that the effectiveness of due process reforms
may be limited by police culture and the inadequate delivery of defence legal
services. Drawing on new empirical data, this article suggests that it is equally
important to consider the interplay between crime control legislation and
occupational cultures. Legislative changes may otherwise reinforce poor practice
and provoke injustice.
*
Email: Hannah.Quirk@manchester.ac.uk.
I am grateful to John Jackson and Kieran McEvoy for their helpful comments on an early
draft of this article, and to Roger Leng and Paul Roberts who offered constructive and much
appreciated advice following its submission.
42
(2006) 10 E&P 42–59
E & P
DISCLOSURE: SIGNIFICANCE OF CULTURE IN CRIMINAL PROCEDURE REFORM
D isclosure of unused material1 by the prosecution has only comparatively
recently2 been recognised as a legal obligation rather than a matter of
professional courtesy or ethics but ‘in our adversarial system, in which the
police and prosecution control the investigatory process, an accused’s right to fair
disclosure is an inseparable part of his right to a fair trial’.3 In England, Wales and
Northern Ireland, ‘the disclosure revolution’4 created by Part I of the Criminal
Procedure and Investigations Act 1996 (CPIA) generated immediate concern amongst
practitioners, policymakers and academics. Fears were expressed about its potential,
both as a cause of wrongful convictions and as a means by which such mistakes will
be less likely to be discovered.5 The CPIA is a peculiarly difficult Act to assess as it has
resulted in little case law6 and the number of undiscovered wrongful convictions it
may have caused is, axiomatically, unknowable. An understanding of the effects of
the disclosure procedure thus requires a more nuanced investigation.7 This article
1 Unused material is ‘… material which may be relevant to the investigation that has been
retained but does not form part of the case for the prosecution against the accused’ (Criminal
Procedure and Investigations Act 1996 Joint Operational Instructions—Disclosure of Unused Material
(JOPI), issued by the Association of Chief Police Officers and the CPS in 1997 and 2002).
2 For a full history, see J. Niblett, Disclosure in Criminal Proceedings (Blackstone Press Ltd: London,
1997). He identifies the first authoritative ruling on the subject as R v Bryant and Dickson
(1946) 31 Cr App R 146. The Attorney-General’s Guidelines (1982) 74 Cr App R 302) first
codified the prosecution’s duty. This was developed subsequently by the courts (R v Ward
[1993] 1 WLR 619; R v Keane [1994] 1 WLR 746).
3 R v Brown (Winston) [1995] 1 Cr App R 191 at 198.
4 R. Leng, ‘Defence Strategies for Information Deficit: Negotiating the CPIA’ (1997) 1 E & P 215
at 216.
5 84 per cent of barristers expressed dissatisfaction with the provisions, citing numerous examples
of bad practice and potential injustice (British Academy of Forensic Sciences/Criminal Bar
Association, Survey of the Practising Independent Bar into the Operation in Practice of the Criminal
Procedure and Investigations Act 1996 Disclosure Provisions (BAFS: London, 1999). The CPS
Inspectorate produced an excoriating thematic report, finding that criminal practitioners
outside the CPS had an ‘almost universal lack of faith’ that the system was working satisfactorily
(Crown Prosecution Service Inspectorate (CPSI), The Inspectorate’s Report on the Thematic Review
of the Disclosure of Unused Material, Thematic Report 2/2000 (Crown Prosecution Service: London,
2000) 3.38). Home Office commissioned research found that the Act had not achieved its aims
and that more than 80 per cent of barristers, defence solicitors and Crown Prosecutors were
dissatisfied with its operation (J. Plotnikoff and R. Woolfson, ‘A Fair Balance’? Evaluation of the
Operation of Disclosure Law (Home Office: London, 2001) 122). The Attorney-General consulted
widely before issuing remedial guidance as to how the provisions should be interpreted (Disclosure
of Information in Criminal Proceedings, 2000 (updated April 2005), available at www.lslo.gov.uk/
guidlines.htm, accessed 8 November 2005).
6 It appears that where the defence is aware of potentially relevant material, this is usually
disclosed. Defence applications to the court for secondary disclosure were made in only about
2.5 per cent of cases; informal disclosure, often with judicial encouragement, was more
frequent (CPSI, above n. 5 at 5.82).
7 The Royal Commission on Criminal Justice (Report, Cm 2263 (HMSO: London, 1993)),
established in the wake of a series of miscarriages of justice (see below n. 10) provided the
impetus for disclosure reform. It has been argued that the Commission’s analysis was weakened
by its failure to explore the social and organisational context within which these cases
occurred (M. Maguire and C. Norris, ‘Police Investigations: Practice and Malpractice’ (1994)
21 Journal of Law and Society 72 at 73).
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
43
DISCLOSURE: SIGNIFICANCE OF CULTURE IN CRIMINAL PROCEDURE REFORM
draws upon the findings of an in-depth, qualitative study8 of criminal justice
practitioners to contend that, whilst the amendments to the CPIA introduced by
Part V of the Criminal Justice Act 2003 (CJA) constitute an improvement, ‘the problems
that afflict prosecution disclosure are too deep-rooted to be cured by legislative tweaking’.9
Non-disclosure of exculpatory material has been a leitmotif of many notorious
wrongful convictions.10 The CPIA nevertheless appears to have been drafted in a
vacuum, without reference to these or other significant cases,11 academic research,
its interaction with other legislation,12 or the adversarial nature13 of the criminal
justice system. Disclosure has been described as ‘the battleground of the modern
justice system’.14 This structural tension is exacerbated by the flawed premise
underpinning the CPIA that prosecution and defence disclosure are equivalent or
reciprocal; yet the two processes have discrete rationales, impose distinct
responsibilities, raise divergent concerns, and necessarily attract different sanctions.15
8 One hundred interviews were conducted by the author between late 1998–99 as part of a
doctoral research project examining the effects of the curtailment of the right to silence and
the CPIA provisions in one large metropolitan area. Interviews were conducted with 26 legal
representatives, 26 Crown Prosecutors, 17 police officers, 16 barristers, 6 justices’ clerks, 5 lay
magistrates, 2 stipendiary magistrates, and 2 judges. In addition, 100 questionnaires were
completed by police officers. Interviewees are identified in this article simply by their job title
and a number.
9 M. Redmayne, ‘Criminal Justice Act 2003 Disclosure and its Discontents’ [2004] Crim LR 441 at
445.
10 Inter alia R v McIlkenny [1992] 2 All ER 417; R v Maguire (1992) 94 Cr App R 133; R v Kiszko The
Times (19 February 1992); R v Ward [1993] 1 WLR 619; and R v Taylor (1994) 98 Cr App R 361.
The Criminal Cases Review Commission identified non-disclosure as the third most common
reason for referring convictions to the Court of Appeal (Annual Report, 1999–2000, para 2.4.
(The only subsequent analyses have been in the 2003–2004 Annual Report, which states that
non-disclosure was an issue in ‘a number’ of referrals, at 15 and the 2004–2005 Annual
Report, which states that non-disclosure had been a ‘less frequent factor’ in referrals than in
previous years, at 14.) Concerns were also expressed about inadequate prosecution disclosure
in M. Zander and P. Henderson, Crown Court Study, Research Study No. 19, Royal Commission
on Criminal Justice (HMSO: London, 1993).
11 The courts appeared to have been establishing a workable disclosure procedure (see R v Ward
[1993] 1 WLR 619 and R v Keane [1994] 1 WLR 746) and had not recommended parliamentary
action as they had done with, e.g., the right of suspects to make no comment at the police
station (R v Alladice (1988) 87 Cr App R 380 at 385).
12 In particular, the ‘right to silence’ provisions (Criminal Justice and Public Order Act 1994, ss.
34–38). Subsequent Acts have also been introduced without consideration of their impact on
the CPIA; e.g. file preparation time has been curtailed by the sending of indictable only
offences to Crown Court at the first hearing (...
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