The price of revealing all

The issue of disclosure is arousing passions once again as prosecutors object to the waste of public money in failed prosecutions
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To prosecutors it is a defence ruse to get suspected criminals off serious charges. To defence lawyers it is the prosecution withholding evidence that would reveal their client's innocence. The issue of "disclosure" - the process where the prosecution is required to release all evidence which could be relevant to the defence - is again arousing strong passions in the world of criminal justice.

To prosecutors it is a defence ruse to get suspected criminals off serious charges. To defence lawyers it is the prosecution withholding evidence that would reveal their client's innocence. The issue of "disclosure" - the process where the prosecution is required to release all evidence which could be relevant to the defence - is again arousing strong passions in the world of criminal justice.

His Hon Gerald Butler QC issued his report last Thursday on a Customs drugs case. At the centre of the dispute lay questions of why Customs had failed to disclose bugging operations against the defendants.

But prosecutors claim that important criminal cases are being dropped because judges are being too accommodating of "unreasonable" defence requests for disclosure of sensitive information. One senior Customs officer said: "This is damaging the criminal justice system."

Defence lawyers claim prosecutors still withhold key material. Experienced defence solicitor James Saunders of Saunders & Co said: "Have we really learned nothing from the Birmingham Six, Guildford Four and many other cases where innocent people have rotted in jail because the truth was kept from the jury?"

Remarkably the problem of disclosure was supposed to have been resolved three years ago. Prior to 1990, prosecutors would often only release the evidence that supported their case. This lead to miscarriages of justice. These cases resulted in senior judges ordering the prosecution to release all evidence to the defence.

But prosecutors claimed that often they were told to release information that would identify informants and were therefore effectively forced to drop the case rather than put lives in danger.

New rules were issued in 1997 and the prosecution regained the power to withhold some kinds of evidence. It fell to judges to make sure disclosure was seen to be fair.

But a string of aborted trials in recent months has had both prosecutors and defence up in arms again. The abandonment of a major drugs trial in Portsmouth last month because of disclosure problems triggered a heated correspondence in the letters pages of The Independent between the regional CPS director and Bindmans, one of the defence teams in the case.

The case followed a police operation in 1997 in which more than 20 suspected drug dealers were arrested. Fourteen defendants originally came to trial in April last year. But six months in, defence lawyers say they discovered that the police had not disclosed vital information. Police had mounted video surveillance on addresses suspected of being used by drugs dealers. The defence claim that the tapes conflicted with police eyewitness statements over visits by defendants to various addresses.

The CPS objected to the release of the videos on the grounds that they would reveal the identity of "public spirited" people who had allowed the cameras to be on their property. When the first trial was stopped the defence made an application to the retrial judge for disclosure of the video evidence for the second trial. He ruled in their favour.

The case was expected to restart this September but at a short hearing at Portsmouth Crown Court last month the CPS announced that there would now be no retrial.

Neil O'May of the solicitors' firm Bindmans, who acted for one of the defendants, demanded an investigation into the CPS handling of the case.

In a letter to this paper Roger Daw, the Regional CPS director, disputed defence claims that even the CPS did not know the extent of the police surveillance. "There is nothing wrong in obtaining evidence in this way. The information sought was not a part of the prosecution case, but, in any event, the defence were given full transcripts," he said.

His letter was unusually tough. He said: "The real issue in this case is the extent to which it is right for defendants to avoid trial simply by claiming that they need to have access to information that they know the prosecution is unlikely ever to release - without showing why the information is essential to their case."

Neil O'May replied that Mr Daw was simply wrong, the tapes were needed to resolve the issue and the judge was right to order their disclosure. "Since 1997 the CPS themselves decide which evidence should be revealed. In the light of this case and others, can they be trusted to do so fairly?"

James Saunders, who was not involved in the Portsmouth case, said that giving more power to prosecutors to decide on their own disclosure would be wrong and that he believes the judge is the right person to decide what information is released. He said: "Having the prosecution decide what the defence should know is putting the fox in charge of the chickens."