Made infamous via a Channel 4 drama, the Post Office Horizon scandal shows why following disclosure rules is imperative. Nearly 750 people were privately prosecuted by the Post Office after a new IT system called ‘Horizon’ was introduced to manage payments. The Horizon system was compromised, incorrectly labelling Post Office workers as fraudsters.

The known shortcomings of the Horizon system were not disclosed to the court. This was a disclosure failure. In 2024, the government will pass a bill lifting many convictions secured against Post Office workers in view of the Horizon scandal. Disclosure failures can be fatal to a criminal case.

What is disclosure?

In criminal proceedings, disclosure is an information-sharing process. The authorities share the information they have gathered about a suspect so that the suspect can answer the charges. This includes:

• Evidence which the Prosecution rely upon;
• Evidence which undermines the Prosecution or assists the defence case.

In the United Kingdom, if an authority suspects someone has committed a criminal act, it is for the prosecution to prove it before the court. If they do not prove it, the suspect is considered innocent despite the suspicion. This is known as the ‘presumption of innocence’. To prove a case, the prosecution naturally must produce evidence to support any allegation.

Defendants therefore have a right to view and confirm the authenticity of evidence related to their case. Otherwise, the authorities could assert that they have evidence somewhere, deny the defendant the opportunity to inspect it and force the defendant into pleading guilty.

The prosecution are under an ‘ongoing’ duty to disclose items of evidence which come into their possession. If a piece of evidence is found by the prosecution at a late stage, they must disclose it to the defence, even if it ruins the prosecution case.

What must the prosecution disclose?

If a suspect is interviewed by the police, there is usually a disclosure of evidence before the interview however sometimes, this does not happen. Sometimes this is disclosed before the interview and sometimes the information is disclosed during the interview as it progresses.

If a case reaches court, the prosecution are obligated to disclose the evidence in their possession:

1. On which they rely for the case;
2. On which they do not rely.

This is known as ‘initial’ or ‘Stage 1’ disclosure. Anything which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused must be released.

If a defendant serves a ‘Defence Statement’, the defendant can ask for ‘specific disclosure’ or ‘Stage 2’ disclosure. Here, the defendant asks the prosecution for particular evidence which may assist their case.

What happens if the prosecution don’t comply with disclosure?

Abuse of Process application:

If it appears that a disclosure failure has jeopardised a fair trial, the defence can apply to have proceedings stayed as an abuse of process. This means that the case, or part of it, is stopped immediately. Whether this argument succeeds depends on the level of the failure, the gravity of the offences and other similar considerations.

Appeal:

However, if someone has already been convicted and there is a risk that the trial was unfair because of a disclosure failure, there may be grounds for appeal. This may be in the normal course of criminal litigation (i.e. an appeal immediately after trial) or, in more narrow cases, years after conviction.

How can we help?

You will need specialist legal advice for disclosure related issues. Please contact us on 0344 587 9996.