When Disclosure Fails

What happens when material that should have been disclosed was not

Disclosure failures are not rare. They are not confined to cases involving deliberate wrongdoing. They occur across a spectrum from the inadvertent to the serious, from the inconsequential to the catastrophic, and they are found in the records of miscarriage of justice cases in Scotland and across the United Kingdom with a regularity that ought to concern anyone who takes the fairness of criminal proceedings seriously.

This page examines what a disclosure failure actually looks like, what consequences it can have for the fairness of proceedings, and what options exist when one is identified in a concluded case.

What a disclosure failure looks like

A disclosure failure occurs when material that should have been provided to the defence under the Crown's disclosure obligations was not provided. That sounds simple. In practice disclosure failures take many different forms and vary enormously in their significance.

At one end of the spectrum a disclosure failure may be a genuine oversight. A document was overlooked in a large volume of material. A record was not recognised as potentially relevant. An administrative error meant that material was not transmitted to the defence agent in time. These failures are not excusable but they are understandable in the context of complex investigations generating large volumes of material.

At the other end of the spectrum a disclosure failure may involve the deliberate withholding of material that those responsible for disclosure knew was relevant and damaging to the Crown's case. These failures are not just procedural errors. They are a fundamental corruption of the fairness of the proceedings.

Between those two extremes there are failures that arise from institutional culture, from inadequate systems, from pressure on investigators and prosecutors to secure convictions, from a failure to recognise the significance of material that an objective observer would consider potentially important, and from a failure to follow up lines of inquiry that might have produced material favourable to the defence.

All of these failures, whatever their cause, have the same potential consequence. A defendant goes to trial without seeing material that might have assisted their defence, created reasonable doubt in the minds of the jury, or undermined the credibility or reliability of the Crown's key witnesses.

How disclosure failures are identified

Disclosure failures are identified — or not — in four main ways.

The consequences for fairness

Not every disclosure failure affects the fairness of the proceedings. Material that was not disclosed but that would not have assisted the defence, would not have created reasonable doubt, and would not have affected the jury's assessment of the evidence does not give rise to a miscarriage of justice even though the failure to disclose it was wrong.

The question that matters is whether the undisclosed material was capable of making a difference. Whether it might have assisted the defence in preparing their case. Whether it might have affected how witnesses were cross examined. Whether it might have created reasonable doubt if placed before the jury. Whether it might have undermined the credibility or reliability of a key Crown witness in a way that could have affected the outcome.

Where the answer to any of those questions is yes the disclosure failure is potentially significant. The stronger the connection between the undisclosed material and the central issues in the case the more serious the failure and the stronger the potential ground of challenge.

Disclosure failures and police conduct

A particular category of disclosure failure that warrants specific attention involves the conduct of the police investigation itself.

Police officers involved in the investigation of a serious criminal case have significant influence over the evidence that is gathered, the witnesses who are spoken to, the accounts that are recorded, and the material that finds its way into the Crown's file. Where an investigation has been conducted in a way that is not objective, where officers have approached the investigation with a predetermined conclusion, where witnesses have been spoken to in ways that encourage particular accounts, or where lines of inquiry that might have produced material favourable to the defence have not been pursued, the disclosure of the records of that investigation may reveal those failures.

The investigation log, the records of witness contacts, the records of decisions made during the investigation and the records of communications between investigators are all material that should be disclosed. Where that material reveals conduct that falls short of the standards required of an objective investigation it is directly relevant to the fairness of the proceedings.

Where concerns about police conduct in an investigation are identified alongside disclosure failures the two issues interact in ways that can be more significant than either alone. Conduct concerns may explain why certain material was not disclosed. Disclosure failures may have concealed conduct concerns that would otherwise have been apparent. In concluded cases where both types of concern arise they should be considered together and pursued together.

Disclosure failures in Moorov cases

In cases where the Moorov doctrine has been relied upon disclosure failures take on a particular significance.

The entire premise of the Moorov inference is that the separate allegations are genuinely independent of each other. The inference of a systematic course of conduct draws its strength from the fact that multiple people have independently described similar behaviour. If the independence of those accounts is compromised the inference collapses.

Material bearing on whether complainers had contact with each other before their accounts were finalised, whether there were communications between them during the investigation, or whether the investigation itself facilitated contact between complainers that undermined the independence of their accounts is therefore central to the fairness of a Moorov case.

Where such material exists and was not disclosed the disclosure failure goes directly to the foundation on which the conviction rests. The SCCRC has the power to investigate exactly this type of question, obtaining records from police and other sources that were never provided to the defence, and assessing whether the independence of the complainers' accounts was what the jury was invited to assume it was.

What to do when a disclosure failure is identified in a concluded case

The appropriate response to an identified disclosure failure in a concluded case depends on the stage the case has reached and the nature of the failure.

Where an appeal has not yet been pursued the disclosure failure should be considered alongside any other potential grounds of appeal and legal advice should be taken as a matter of priority given the time limits that apply. A disclosure failure that affected the fairness of the proceedings may give rise to a ground of appeal based on a miscarriage of justice or on the existence of material that was not available at the time of the trial and that might have produced a different outcome.

Where the normal appeal routes have been exhausted an application to the SCCRC is the appropriate avenue. Disclosure failures are specifically within the SCCRC's investigative remit and the commission has powers to obtain material from police, prosecutors and other agencies that the defence was never able to access. In cases where the disclosure failure is suspected but the specific material has not yet been identified the SCCRC's investigative powers may be the most effective mechanism for establishing what exists and what was not provided.

In cases where there are concerns about police conduct alongside disclosure failures a complaint to the Police Investigations and Review Commissioner may also be appropriate. These processes are not mutually exclusive and pursuing one does not prevent pursuing another.

In all cases keeping a clear and detailed record of what is known about the disclosure failure, what specific material is believed to have existed, why it is believed to be relevant, and what steps have been taken to pursue it is important. The more clearly and specifically the concern can be articulated the more effectively it can be pursued through whatever mechanism is appropriate.

A note on the passage of time

One of the most significant practical challenges in identifying and pursuing disclosure failures in concluded cases is the passage of time. Records are lost or destroyed. Memories fade. The investigators and prosecutors involved in the original case move on. Witnesses become harder to locate. Material that existed at the time of the trial may no longer exist by the time the failure is identified.

None of this means that disclosure failures identified years after the event cannot be pursued. They can and they have been in some of the most significant miscarriage of justice cases in Scottish and United Kingdom legal history. But it does mean that the earlier a potential failure is identified and the sooner steps are taken to preserve and obtain relevant material the better the prospects of a successful challenge.

Where there is any reason to believe that material relevant to a case may be at risk of being destroyed or lost steps should be taken to seek its preservation as soon as possible. Legal advice on how to do this should be sought without delay.

What to take from this page

Disclosure failures occur across a spectrum from inadvertent oversight to deliberate withholding and are found with significant regularity in miscarriage of justice cases. Not every failure affects the fairness of proceedings but where undisclosed material was capable of assisting the defence or creating reasonable doubt the failure is potentially significant. In Moorov cases disclosure failures bearing on the independence of complainers' accounts go to the foundation of the conviction. The appropriate route for pursuing a disclosure failure in a concluded case depends on the stage reached but includes appeal grounds and SCCRC applications. The earlier a failure is identified and pursued the better the prospects of an effective challenge.