Scotland Not Immune From Disclosures Scandal

We reproduce here an article published yesterday by Scottish Legal News.   The original article can be found here.

The Director of Public Prosecutions has apologised after a review found that 47 rape or sexual offence cases were stopped because evidence had not been disclosed to the defence.

Outgoing Crown Prosecution Service head, Alison Saunders, told the Commons Justice Committee that disclosure was a “longstanding systemic issue” that the police and CPS had failed to deal with properly.

Asked whether wrongly charged people and victims deserved an apology, she said: “Absolutely. I feel every single failure. It is not something that we want. We have been very clear about where our failings are. We will apologise for those.”

Of 3,637 cases reviewed, disclosure was an issue in 47 cases, which were subsequently dropped.

Ms Saunders said that in improving disclosure, the CPS and police had agreed to now bring in scrutiny earlier “because I quite appreciate the impact it has on people’s lives” she said.

She suggested to MPs that the process should begin “almost pre-charge, rather than waiting for it to get into the system where we are up again a time clock in court”.

All 3,000 prosecutors are now receiving retraining.

Lawyers have told Scottish Legal News that similar failings are plaguing the criminal justice system here and that we “effectively have non-disclosure via full disclosure”.

A prominent defence solicitor told SLN: “It would be ludicrous to suggest that non-disclosure does not affect Scotland.

“When it comes to electronic records and analysis of telephones, laptops and social media we effectively have non-disclosure via full disclosure.

“Defence teams are frequently given vast amounts of data at a late stage without the resources to analyse them, whereas the police and prosecution may have gone through many thousands of records to find half a dozen records which are then presented completely out of context.”

Niall McCluskey

Advocate Niall McCluskey told SLN: “The communications data is vast and you can get discs disclosed at very late stages in cases. For example if you have a phone analysed it could have texts, call history and WhatsApp records. You could be talking about a vast amount of material that it’s virtually impossible to keep track of. And if you have a case with many devices it’s just impossible.”

He added: “In fairness to the CPS they have had very significant resource problems. The Crown Office probably suffer from the same thing. The reality is that everyone in the system is feeling the pinch in terms of resources.”

He suggested a “perfect storm” was brewing in Britain’s justice systems.

“You have a perfect storm in which the system is less well resourced but you have increasing complexity of evidence and increasing volume of evidence.

“A recent practice note in relation to long trials places greater demands on the prosecution and defence. In long trials you get more data evidence. It is becoming increasingly difficult to to the job well.”