Written evidence from Alison Saunders CB, Director of Public Prosecutions (DIS0068)

DISCLOSURE:  FURTHER INFORMATION FOR THE JUSTICE COMMITTEE

Thank you for your letter of 15th March inviting written evidence to the Justice Committee and asking for some further data on CPS cases.

You specifically requested the following:

1. A breakdown of cases which were dropped due to failure to disclose evidence in 2017, indicating:

• Principal Offence Category
• Whether cases were going through the Crown Court or the magistrates’ courts; and
• Whether disclosure failures were attributed to Police or CPS

2.      Data on the number of not guilty verdicts given following late disclosure of evidence; and
3. Data on the number of incidences when a defendant has been found not guilty at appeal, due to evidence emerging which might have been disclosed in an earlier case against the defendant.

You also asked for this data to be updated to cover the second quarter of 2017/18 when it becomes available.  I assumed that you would like to see the most up to date data we have available and so the figures provided in this letter are based on the provisional data for the full financial year 2017/18.  The provisional data for the final quarter of this year regarding this issue became available to us earlier this month.

DATA REQUESTED

The data we hold, breaking down cases dropped due to failure to disclose evidence by Principal Offence Category, and whether cases were going through the Crown Court of the magistrates’ court is attached at Annex A.

We do not record whether the failure was that of the police or the CPS because there is rarely a clear apportioning of blame. As the Inspectorates have noted and as set out in our written evidence, often police officers will provide poor schedules, but prosecutors will fail to sufficiently challenge them.

We also do not collect data on reasons for acquittals or successful appeals. We cannot know why a jury has decided to acquit the defendant, so no reason can be recorded for an unsuccessful outcome in trial cases. The CPS’s role is not to obtain convictions at all costs; it is to make fair, independent and objective assessments about whether it is appropriate to present charges for the criminal court to consider. We do look at “unsuccessful” cases to establish what if any lessons can be learnt. However, an acquittal or a successful appeal may not mean a prosecution was wrongly brought or that there was some “failure” by the prosecution. 

Provisional data indicates that there were 841 cases dropped due to failure to disclose evidence in 2017/18 (727 in the magistrates’ court, and 114 in the Crown Court).  The figure of 841 is 8% lower than in 2016/17 but clearly every case of this type is a cause for significant concern. 

As explained in paragraphs 33 to 36 of our written evidence, this data only includes cases where the CPS or police have not met their disclosure obligations or were unable to do so. This metric takes a narrow definition of disclosure, and requires disclosure to have been the primary reason for the case being stopped. Having reviewed our data collection as part of our overall response to the Inspectorates’ report, we think this definition is too narrow. Often disclosure issues are caused by the wider management of unused material, rather than a failure in the disclosure test itself, and these may not be categorised as a disclosure failure under the current definition.

In addition, disclosure failures are not always the determinative reason for the stopping of a case.  To illustrate, where the Full Code Test is applied, all material should usually be considered at the point of charge. However, if material emerges later and leads to a case being stopped, then the impact of that material may be identified in our records as the reason for that stoppage, rather than the late emergence itself. For example, the material could conflict with existing prosecution evidence, bring into doubt the credibility of the complainant or a key witness, or lead to a complainant withdrawing their support for the prosecution.

DATA IMPROVEMENTS

In light of this, we have decided to fundamentally review our performance data with assistance from HMCPSI.

We have also recently focused our casework quality management more closely on disclosure issues as detailed in our joint National Disclosure Improvement Plan. We are updating our Individual Quality Assessments (the mechanism through which managers evaluate casework and advocacy of individual prosecutors) of files to allow for a greater focus on disclosure, and disclosure performance is now being examined as part of our quarterly Area Performance Reviews.  This will allow us to establish whether the reforms outlined in our National Disclosure Improvement Plan are driving better compliance with the disclosure regime.  To also assure ourselves that this plan is having the intended effect we have asked HMCPSI to monitor our progress against their report later this year. 

PROTOCOL ON THIRD PARTY DISCLOSURE

The drafting of the protocol on the handling of third party material is complete and we are content with the current draft.  Our police colleagues through the NPCC are now considering the draft and we will publish the final version in the near future. I will ensure you and the Committee are provided with a copy of the final version.

Please let me or my officials know if you require any further information or clarification regarding this letter or our joint written evidence with the NPCC.

April 2018

Annex A

Cases stopped due to disclosure issues with CPS or Police, 2017-18, by Principal Offence Category and Crown Court and Magistrates’ Court

Notes and Caveats

The data provided above are the provisional figures for the financial year 2017/18 

CPS data are available through the Case Management System (CMS) and associated Management Information System (MIS).  The CPS collects data to assist in the effective management of its prosecution functions.  The CPS does not collect data which constitutes official statistics as defined in the Statistics and Registration Service Act 2007.  These data have been drawn from the CPS’s administrative IT system, which (as with any large scale recording system) is subject to possible errors with data entry and processing.  The figures are provisional and subject to change as more information is recorded by the CPS.

The official statistics relating to crime and policing are maintained by the Home Office and the official statistics relating to sentencing, criminal court proceedings, offenders brought to justice, the courts and the judiciary are maintained by the Ministry of Justice.