By Liam Gregory,
Solicitor, Saunders Law Limited
The Defendant’s access to material which may undermine the prosecution case or which supports their version of events is a subject of direct relevance to all those interested in the proper administration of Justice. This article is about disclosure by the prosecution of interview tapes and the likely impact of the proposed update to the Codes of Practice on disclosure generally.
The statutory framework for disclosure is established in the Criminal Procedure and Investigations Act 1996 (CPIA 1996) in which it is stated that a prosecutor MUST:-
a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused; or
b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).
How prosecuting lawyers apply the general principles of disclosure contained in the CPIA 1996 is influenced by the guidance issued by the Director of Public Prosecutions in the Director's Guidance on Charging issued under Section 37A of the Police and Criminal Evidence Act 1984 and Code of Practice issued under Section 23 of the CPIA 1996.
In recent years the Crown Prosecution Service has striven to make the preparation of prosecution case files and the disclosure of evidence proportionate to the seriousness of the offence being tried. Adopting a proportionate approach to the disclosure of evidence is part of a streamlining of the criminal justice system to make it more cost effective and to reduce delay. Two of the casualties of the streamlining process have been the loss of the transcript of interview (also known as the Record of Taped Interview or ROTI for short) and the disappearance of the tape of the police interview; both of which are generally considered by defence lawyers to be a key part of the evidence in any case.
As part of almost all police investigations, suspects are asked questions under caution and usually that interview is recorded. Since adverse inferences can be drawn, from either silence or a failure to mention key facts, suspects and those advising them at the police station often agonise over whether an account should be given and questions answered. It is often commented upon by prosecution and defence lawyers alike that the police interview is the first opportunity that a defendant will have to give an account challenging the prosecution case.
Interviewees are still told by Police Officers that the interviews can be played in Court when the Police caution is explained during the interview although in reality the playing of interview tapes during the course of a summary trial has almost been completely abandoned to save time. Instead of interviews being played or a copy of the transcript of the interview (ROTI) being read aloud a summary of the interview is prepared by the investigating officer and this is read aloud. There has been no systematic monitoring of whether the summaries of the taped interview prepared by investigating officers actually reflect what was said by suspects during their interviews; however personal experience has shown that the summaries are often truncated, miss out key information and can be misleading.
In most cases a full transcript of the interview is preferable to the summary of the interview provided by the investigating police officer. Attempts by defence lawyers to require the Crown Prosecution Service and the Police to provide a transcript of the interview in summary cases are strongly rebuffed. The Crown Prosecution Service approach to providing a transcript of interview is summarised on their website as:-
“The defence are not entitled to insist on the provision of a full transcript. Any approach to prepare a transcript should be resisted unless the reviewing lawyer considers it to be essential to the proper presentation of the case. If the defence insist that the court should have a transcript, they should prepare it themselves.”
Further guidance to the Crown Prosecution Service regarding the preparation of a full transcript is provided in Annex A of the guidance to Police Officers and Crown Prosecutors Issued by the Director of Public Prosecution under S37A of the Police and Criminal Evidence Act 1984 which states that transcripts are “only to be compiled when relied upon and summary on MG5 is deemed insufficient for trial” or “in serious or complex cases”.
The Crown Prosecution Service still routinely compile transcripts of interview in most cases which are sent to the Crown Court; however there is no statutory requirement that they do. It will be interesting to see whether the Crown Prosecution Service and the Ministry of Justice will seek to streamline criminal justice at the Crown Court by omitting to prepare transcripts of interview.
The conclusion that can be drawn from the Crown Prosecution Services’ reliance upon interview summaries is that defence practitioners who advise suspects at police stations should make more use of prepared statements when an account is given; this will effectively allow defendants to write the summary of the interview for the investigating officer.
The reliance on a summary of a police interview rather than a full transcript of that interview means that it is important that its accuracy is properly checked. The only way that the summary can be properly checked is to listen to the interview tape and compare it to the summary; sadly it has become increasingly difficult to obtain the interview tape and in many proceedings it is never disclosed to the defendant.
Before the recent streamlining the Crown Prosecution Service would routinely serve a copy of the interview tape with the primary disclosure at the first hearing of any cases. Disclosure of the interview tape is now subject to various ad-hoc arrangements across the country. In London for example the Chief Inspector of the Metropolitan Police has given an undertaking that anyone who is charged with a criminal offence should receive a copy of the interview tape at the point at which they are charged.
The stated principle behind the changes is that defence lawyers should receive as much information about a case before the first hearing in order that they are prepared to identify all of the trial issues on the defendant’s appearance in Court if a plea of not guilty is entered and there is a summary trial. Unfortunately none of the initiatives to try and get case papers and interview tapes to the defendant before the first hearing seem to be functioning very well.
In London defendants are not routinely given the interview tape(s) when they are charged and most police officers appear puzzled at any request for the interview tape(s) at the police station. Defendants and their lawyers are entitled to demand that the interview tape(s) are provided to them at the point of charge and if necessary they can ask to speak to the duty inspector to ensure that the undertakings given by the police are upheld. It can be extremely challenging to obtain the tape of interview if it was not given to a suspect when they were charged as very often the crown prosecution service will not have a copy on file and the police expect that the lawyer in a case will travel to the police station to collect the tape in person.
In summary, interview tape(s) contain evidence which “might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused” and although the prosecutor must disclose such evidence, the burden for obtaining it has passed to the defendant.
The simple answer to the problem of the missing interview tape is for police station representatives to attend with clients when they are charged in order to demand that the interview tape is provided. The difficulty for lawyers is that most police station attendance is now paid on a fixed fee basis so many police station representatives don’t attend bail to returns at the police station because it is not cost effective for them to do so.
The case of the missing interview tapes is just one example of how obtaining proper disclosure has become increasingly difficult for a defendant as a result of streamlining the criminal justice system.
Forthcoming changes to Disclosure
A revised Code of Practice for the Criminal Procedure and Investigations Act 1996 was laid before Parliament on the 28th of January 2015 and will come into force the day after it has been approved by an affirmative resolution of both Houses of Parliament. The revised Code of Practice aims to streamline the procedure for disclosure in cases that are expected to end in a guilty plea.
Part 6.3 of the revised code states:
“If the accused is charged with a summary offence or an either-way offence that is likely to remain in the magistrates’ court, and it is considered that he is likely to plead guilty (e.g. because he has admitted the offence), a schedule or streamlined disclosure certificate is not required.”
A schedule of disclosure is a list of material which has been generated or obtained during the course of the investigation and which is either held by the Crown Prosecution Service and/or the Police. The schedule of disclosure or schedule of unused material is the first glimpse that a defence lawyer has of the information that the prosecution might have which undermines the prosecution case or supports the defendant’s case. Without a schedule of disclosure the defendant and their lawyer have to make educated guesses about what other material maybe held by the Crown Prosecution Service and the Police that would assist the defendant. It is worrying that the disclosure officer’s duty to prepare for disclosure is dependent upon their “expectation” of whether the defendant should be pleading guilty or not.
Part 6.4 of the revised Code of Practice does provide that if:-
“contrary to the expectation of a guilty plea being entered, the accused pleads not guilty at the first hearing, the disclosure officer must ensure that the streamlined disclosure certificate is prepared and submitted as soon as is reasonably practicable after that happens.”
It will be interesting to see what steps will be taken by individual disclosure officers to ensure that they comply with part 6.4 of the revised code of practice in the event that a defendant contrary to their “expectation” pleads not guilty but how the police have implemented the changes with regards to the provision of interview tapes has not set an encouraging precedent.
The defence lawyer’s response to these changes should be to remind, in writing, the disclosure officer and the prosecutor of their common law duty to disclose and to request that in the event of a not guilty plea being entered whether at least a streamlined disclosure certificate has been prepared. It is important that defence practitioners remain persistent in holding the prosecutor and police to account in relation to proper disclosure in all cases because:-
“Disclosure is one of the most important issues in the criminal justice system. The application of proper and fair disclosure is a vital component of a fair criminal justice system. The "golden rule" is that fairness requires full disclosure should be made of all material held by the prosecution that weakens its case or strengthens that of the defence.” Lord Goldsmith, Former Attorney General
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