Commons Sense 01 – Disclosure

For our first Commons Sense we thought we would shine our (rechargeable) battery operated torch of truth on an under reported, little discussed issue in the criminal justice system; disclosure.

Alright, we have come a little late to this party, too late even to scuttle in and out leaving our unwanted Lambrusco of opinion on the side table of whataboutery. It seems everyone from Jerry (Jeremy) Hayes to Jeremy (Jerry) Wright has had their say.

As a public service we thought we would helpfully distil what everyone (we agree with) has been saying about failures in disclosure:

– they have been happening for years

– they don’t just happen in sex cases

– they don’t just happen in London but in every criminal justice area in every type of case every day

FWIW we don’t agree with the Director of Public Prosecution view that there is no one in prison as a result of a disclosure failure because that’s statistically really, really improbable.

Why is this happening? A combination of mindset, training, cut backs, design of the legislation and growth in digital evidence. Yes it is all of those but we also think underpinning it all is:

a) a retreat in attachment to fair trial rights in the face of instrumentalism (i.e. what’s in it for me if I disclose this evidence?),
b) a zero sum mentality ( If I disclose you may win and I may lose ), and
c) a technocratic fetish for the costs spreadsheet (doing it properly costs too much money and you know austerity…)

If you go on Twitter, you can hear from police officers who rail against the hurdles put in their way to stop them doing the disclosure job correctly. The vast majority of Crown Prosecution Service lawyers are committed to their role as officers of the court with all the positive obligations that entails.

But there is also something about the way organisations, charged with the most coercive powers of the state, operate now that facilitates a low cost, low morality decision-making process. This could be straight from the I, Daniel Blake landscape of withheld benefit payments for the destitute, fitness to work tests for the dying and the hostile, cut and paste send – them – back – to – where – they – came – from asylum approach of the Home Office.

Commons Sense says redefine police and prosecutorial roles to incorporate an ethical attachment to fairness and an understanding of the havoc the state can wreak when its powers are misused. Reinforce this with ongoing training. Discipline those who fall short, and prosecute failures if need be.

You can call this applying human rights or in a post-Brexit world, you can sell it as a reinvigorated sense of fair play, a new commitment to traditional British values, if that’s your thing. Whatever you call it, a new ethos of fairness can only work in a criminal justice system with less slashing, outsourcing and suppressing, and more investment, attention and transparency.

We will return to these themes in future Commons Sense tackling the issues of the day which may include but are not limited to
•    The inexorable v The inflexible: the dying days of patriarchy and flexible court hours

•    Problem: increasing number of wrongful convictions. Solution: make appeals harder

•    Problem: decreasing number of out of court disposals.  Solution: make getting legal aid harder

•    Designing out the Defence: Robo tech v the rule of law aka dropping the shiny bauble of tech from a great height into the crumbling nest of justice crushing the dull looking but life affirming eggs stamped ‘Article 6: expiry date 2018’ aka  Fair Trial Rights go splat

•    “But that’s five times more than my monthly mortgage payment! ”:  Are Crown Court legal aid contributions legalised extortion ?

•    Performative punishment the wig and the dock: If it ain’t woke don’t fix it

•    “Surely your client knows whether they did it? “aka Managing out the burden of proof

•    Hey HM Courts Service! Inception output? That’s a thing?

And most importantly 
•    Blackstones v Archbold:  Who cares?