Changing Culture: The Problem of Adversarialism at the Heart of Police Disclosure

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Dr Tom Smith writes on the National Disclosure Improvement Plan

In the wake of the cases of Liam Allan, Isaac Itiary, Samson Makele, and Oliver Mears, the National Police Chiefs Council (NPCC) has issued a National Disclosure Improvement Plan. Whilst the document states that this plan has been in gestation for six months, the timing and tone suggest a hurried response to the scandal that has engulfed the police. The serious questions raised by lawyers, politicians, the media, and the police themselves suggest a new approach is needed to the disclosure of evidence in the pre-trial stages of the criminal process. The document appears to be the current embodiment of that desire to “change culture”. However, the plan shows a misunderstanding of the roots of the issue of inadequate disclosure, roots which reach deep below surface issues such as resources, the management of digital evidence, expertise, training, and leadership. At the bedrock is the fundamental fact that the police are an adversarial institution, deeply committed to the apprehension and prosecution of offenders.  This adversarialism inevitably influences the police approach to investigating evidence and sharing it with the defence – their opposition. Giving the police sole responsibility for conducting an impartial assessment of whether evidence is exculpatory is a design flaw. Without addressing this, it is hard to envisage real change following.

Police resources have fluctuated over the years; the types of evidence they have had to manage has changed over the decades; the volume and type of work dealt with has always been subject to variation. A consistent problem throughout has been the inability of some (not all) police officers to fairly manage investigations and the supply of relevant information to the suspect and their lawyer. The NPCC plan, sadly, does not appear to address the fundamental problem suggested above. It is generally vague and lacking in detail (which is perhaps not surprising considering the speed with which it has been issued). Several of the lines included in it are drawn from existing guidelines for disclosure (particularly the Code of Practice for the CPIA and the AG’s Guidelines). A clear message in the plan seems to be the problem of capacity to do the job, due to both a lack resources and time. This is likely, on a large scale, to be a factor, especially when dealing with large amounts of evidence. But if one considers the cases of Allan and Itiary, both suspects directed the police to evidence that was exculpatory. It seems more likely that the problem was belief in the suspects’ guilt rather than a lack of resources to investigate. This is arguably a problem of adversarialism; or perhaps more specifically, a problem resulting from the fact that the current disclosure scheme does not recognise the adversarial role of the police and the consequent risks.

The document talks about partnership, and rightly highlights the need for a close working relationship with the CPS (a problem evident from Allan’s case). The document implies that the defence community also needs to be engaged, although couches it in terms of the need for them to “take action”. This appears to mis-state the problem – as written, it suggests that the problem  is one of intransigence on the part of suspects and defendants.

Perhaps this was not the intended meaning; but it would seem more appropriate to suggest that it is the police that need to take action to engage more effectively, with not only the defence community but individual suspects and their lawyers in all cases, for all types of offences. Indeed, the plan focuses on rape and sexual assault cases; this is too narrow, highlighted by the recent collapse of a human trafficking case due to non-disclosure (which featured the remand of one defendant, who gave birth whilst in custody). Beyond this, the plan largely ignores the issue of engagement and partnership with the defence community. This seems a missed opportunity. Considering the modern drive for co-operation and openness encouraged by the Criminal Procedure Rules, the Criminal Procedures and Investigations Act (CPIA) 1996, and case-law, one would think that such a culture might lead the police to be more open too. Yet, cases such as those mentioned at the outset suggest that the police station (not generally open to external scrutiny) remains a bastion of secrecy and game-playing.

Since, in this environment, the suspect may now risk being punished for exercising their right to silence, it seems hypocritical for the police to be left largely free to be secretive and selective in what they choose to share. This is particularly the case prior to charge, with very few requirements to disclose, little scrutiny of this process, and few consequences for the police. Indeed, the review of the Allan case conducted by the Metropolitan Police and the CPS (released in late January 2018) makes no recommendations for action directed at those individuals responsible for the failings in that case. Despite many years worth of guidance aimed at both streamlining and encouraging disclosure (which are, arguably, contradictory objectives in any case), the problems in achieving it fairly are “systemic and deeprooted” (as both the NPCC plan and the DPP have stated). The fundamental flaw in the CPIA 1996 disclosure scheme – that primary responsibility lies with the police – was followed by two decades of clarification and amendment (for example, via the Criminal Procedure Rules and the Attorney General’s Guidelines), with apparently limited progress. The intentions of the NPCC in issuing this plan may be good, but ultimately even soft regulation has failed to change this culture. It’s hard to see how more self-regulation (which appears to primarily focus on monitoring and further standard-setting) will work. The most effective catalyst for change so far has been media attention and the public failure of cases.

If one accepts the argument that the fundamentally adversarial nature of the police and suspect relationship will continue to undermine a workable, police-managed disclosure scheme, this plan seems akin to a plaster on a leaking dam. So, how can they issue be tackled? The suggestion of culture change emphasised in the plan would need to go much further than well-intentioned rhetoric. Disclosure should be managed by an independent and objective figure; one might suggest a Custody Officer style figure, but this role has been subject to criticism over the years (exemplified by the studies of McKenzie and Dehaghani). It should be a figure distinctly separate from the investigation and the police – the equivalent of a Disclosure Officer without the inherent conflicts such a role has. This would move away from the entrenched adversarialism that risks tunnel-vision regarding the guilt of a suspect (despite explicit guidance to the contrary). Another alternative would be a presumption that the police will disclose all material, with exceptions (for example, on public immunity or sensitivity grounds) being clearly justified (as suggested by Professor Ed Cape in his letter to The Guardian (December 2017). This form of “total disclosure” could, however, potentially leave defendants and their lawyers (if they are represented) with a mountain of material to assess – with no more resources to do so. A different, but connected issue, is the transparency of the process. As such, a formal and recorded mechanism by which the suspect and their lawyer can request investigation by the police of relevant, exculpatory evidence would also be welcome. There should be a rebuttable presumption that the police will disclose when a request is made. When the police reject the need to investigate and/or disclose, they should justify this. All of this material should be available to all parties and be mediated by some external, non-adversarial figure. For example, if a defence request is rejected, there should availability of an appeal mechanism whereby a magistrate or Judge can review the decision. This would establish a transparent relationship between the police and the defence regarding disclosure. It is notable how little is known about the exact processes by which the police dealt with disclosure in the cases mentioned above – a more transparent process is needed. Alongside the NPCC plan, the DPP has announced that all current rape cases are to be urgently reviewed to ensure disclosure has been dealt with appropriately. Additionally, the Attorney-General is apparently conducting a general review, and the House of Commons Justice Committee will also investigate the issue. The NPCC plan and the DPP’s review are welcome but arguably inadequate; the solutions being offered will not fully address the problems discussed here, which appear to be widespread and deeply rooted. The latter two, if conducted thoroughly and in a manner that engages with various parties, have a better chance of truly driving a change in culture – one which is desperately needed.

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