UPDATE: A new interim Digital Processing Notice will be introduced imminently. This new notice will reflect the Court of Appeal ruling in the case of Bater-James and Mohammed. We will work with the ICO and other stakeholders on a permanent notice and associated practice that will address the ICO’s recommendations in full.
Every investigation is a search for truth. That means following all leads and examining all evidence – with objectivity and impartiality. It also means disclosing any of the material gathered in that search that may undermine the prosecution or help the defence. The cases of Liam Allan and Issac Itiary demonstrate the devastating consequences of not doing so.
Over the last six months, police and the Crown Prosecution Service have been looking in depth at disclosure failings and, last week, the Director for Public Prosecutions led a seminar with police chiefs and the judiciary to discuss why they are happening and what we need to do across the system to improve.
Disclosure is the release of material gathered during an investigation that is not relied upon by the prosecution but which may be relevant to the case. The prosecution team and police have a duty to review this unused material and determine whether there’s anything in it that undermines their case or supports the defence. Anything that does so must be disclosed to the defence team, with everything else listed on a schedule. Simple - at least in theory, so why has there been such difficulty in getting this right?
We have had a cultural problem with disclosure where it is too often seen by police officers as a thing to be done at the end of an investigation - becoming subsequent to rather than integral to the investigation. Changing this mindset is an immediate challenge for us.
But the world has changed enormously in the twenty years since the legislation that sets out the duty to disclose was drafted. A typical investigation today will involve the seizure of several digital devices - phones, tablets or computers. The average smartphone contains huge amounts of communications data including messages, photographs and video as well as a record of web browsing and communication on social media and apps. A conservative estimate equates this to around 30, 000 pages of A4 paper. The issue facing the investigator, then, is how can one realistically review and document all of that, especially when they may have seized a number of devices?
Firstly, we've got to address the mindset. Reports from criminal justice inspectorates and by Richard Horwell QC make clear there is a general lack of understanding about disclosure. The College of Policing is reviewing what is needed from training and guidance to make it effective on disclosure. It is also about leadership – we need every force to have a chief officer responsible for disclosure to lead improvements and ensure supervisors and managers understand and fulfil their responsibilities. This must be backed up by robust oversight to check forces are complying with agreed standards including regular dip sampling to test cases.
Secondly, we’ve got to ensure our processes work for modern day and future disclosure, not for days gone by. There are difficult choices to make here. We’ve considered going as far as providing defence teams with all the material, unreviewed, so they can decide if any of it assists their case. It is superficially attractive but does not survive scrutiny. Firstly, no prosecutor worth their salt will provide volumes of material to the defence that they have not themselves viewed, for very good reason –it allows for the unscrupulous to manipulate and ambush the prosecution to delay or avoid justice. Secondly, there are very real issues about providing personal, often sensitive, information to third parties as it will almost certainly impinge upon the privacy of persons unconnected with the investigation.
Instead, we think the solution is tied to that search for truth and ensuring that investigators are consistently identifying and pursuing all reasonable lines of enquiry, whether they exonerate the suspect or build a case against them. This then acts as a clear guide to investigators that they must disclose any information that relates to these lines of enquiry but they do not have to review irrelevant material. This approach is in line with Attorney General’s guidance on disclosure. The trick is in defining what’s reasonable and equipping all investigators to make that judgement – this is where we are now concentrating.
Longer term we must also must pursue how technology, particularly artificial intelligence, can help us deal with the expanse of digital material more quickly and efficiently.
Disclosure is top of the agenda today at Chief Constables Council, where I'll present our action plan with the Director of Public Prosecutions. By the end of the month, we will publish the finalised plan for driving improvements with ambitious timescales because we want to do all we can, as quickly as we can, to get disclosure right.
Chief Constable Nick Ephgrave, NPCC Lead for Criminal Justice