A closer look at what ‘disclosure’ in the criminal justice system actually means.
Within the last seven months, there has been a barrage of headlines in the UK media about disclosure in rape cases. In December 2017, evidence was disclosed in a case called R V Allan[1] which led to it being dropped at court and the Met police decision to review all rape cases. We initially responded to this decision in January 2018.
The headlines since have been harmful and inaccurate but, perhaps most importantly, they have gained traction, sparked outrage and had a tremendous impact on the entire criminal justice system and belief in survivors. Disclosure has taken up countless column inches, reached the upper echelons of government and, soon, it will also lead to a transformation of the way electronic data is obtained and accessed in all police investigations.
But what does disclosure actually mean?
The criminal justice system can be confusing and complex, and the issue of disclosure adds another indecipherable barrier for survivors who have reported to the police, or who are thinking about it. With the media full of inaccuracies and inconsistencies, we thought we would break it down and bust some of the main myths about disclosure:
What is disclosure?
When criminal cases are being prepared for trial the prosecution must share with the defence any material – or evidence – which could potentially undermine the prosecution case or assist the case for the defence. This sharing of information is called disclosure; material is ‘disclosed’ to the defence.
Disclosure happens in all criminal cases and the police – who investigate crimes and gather evidence – have an obligation to disclose any material they have that they think is ‘relevant’ to the case. They will disclose it to the Crown Prosecution Service (CPS) who are the lawyers, or prosecutors, who make decisions about whether or not cases will go to trial.
Disclosure material could be things like text messages or WhatsApp conversations about what happened. It could also be information from medical records or social services records. This sort of information is called third party material.
‘Relevant’ is a particularly vague and difficult word to pin down in this context as, ultimately, it is up to the police and the CPS to decide what they feel is relevant in each case. They will work together to make sure they have everything that they need and have passed on all the relevant information.
In every case, disclosure will be an ongoing thing for the police and the CPS to be aware of. Police gather evidence throughout their investigation. As new information comes in the police and the CPS must make a decision about its relevance and whether or not it should be disclosed. If the CPS decides to charge somebody – which means that the case should go to court – they must make sure they have disclosed all the ‘relevant’ evidence to the defence. The police and the CPS have a duty to disclose anything that undermines the prosecution case or helps the defence case.
It is important to note that not all cases get to the CPS stage. However, survivors deserve to know that the information about them obtained by the police could be shared with the CPS – and could later be shared with the defence if the case were to go to trial. There are many different stages to get through before cases get to court[2]. The decision about what gets disclosed to the defence is ultimately made by the CPS.
Does disclosure only affect rape cases?
Despite mainstream media reports to the contrary, disclosure is not a new issue and it is not one that solely affects rape cases.
Disclosure issues are a broader issue across the criminal justice system as a whole, an issue exacerbated by an under resourced system which has been unable to move with the vast changes in technology. There is a disproportionate focus on disclosure in relation to rape cases, when actually the concerns raised should impact on all crimes in the same way. The media’s focus on creating narratives that feed directly into the widely-held myth that survivors lie about the sexual violence they have experienced is dangerous, and one that should be challenged at every opportunity.
Have people been wrongly convicted because of disclosure?
One myth that has firmly taken root within the UK media is the one that tells us that hundreds of men may be languishing in prison for rapes they did not commit. Not only is this irresponsible and inaccurate reporting, but it is directly countered by all of the statistics available to us on rape and the criminal justice system.
We know that the percentage of ‘false reports’ for rape are incredibly rare and not higher than for any other crime[3].
We know that some survivor’s previous experiences of sexual violence can have severe impacts, and can cause huge distress and can affect their memory and recall.
We know that some people may feel that something has happened or cannot account for a period of time.
We know that some people can make presumptions and report on behalf of someone they believe has been raped[4].
We also know that of those 41,882 of reports of rape per year, just over 7% of those makes it to court and leads to a conviction[5].
Issues with disclosure have always existed, and all perpetrators have the right to apply for permission to appeal against a conviction if there are grounds[6]. Those grounds may be things like if there has been an error in the law where the judge has wrongly directed the jury on a legal issue, or based on new evidence which was not available at the time of the trial. There is very little data available on how many rape convictions do result in an appeal. This lack of information suggests it is rare and highlights just how the media has portrayed a skewed and unbalanced view of these facts.
What are the impacts of disclosure on survivors?
Our work with survivors shows us just how impactful recent shifts around disclosure – and the headlines surrounding it – have been for them. Survivors are asked for sometimes unlimited access to their phones and electronic devices for an unspecified period of time – often going into months.
There are feelings of frustration, anxiety, hopelessness, fear, paranoia, anger, confusion and powerlessness.
There are concerns about safety.
There are concerns about not having access to their phones for work, for childcare and for access to their support networks in an extremely difficult time.
There are concerns about the financial impact of paying for a phone they can’t use.
There are concerns about being criminalised themselves or implicating those closest to them.
There are currently no guarantees about what could happen to the information obtained from phones or from other third party material. There is nothing in place around how long survivor’s phones will be kept, or the impacts this could all have on how long police investigations will take as a result. The criminal justice system does not have the resources – or the technology – it needs to cope with the demands of disclosure. The system is under pressure and there needs to be a response that is rooted in practical actions to ensure any change is sustainable and has survivor’s best interests at its centre.
And both the criminal justice system and the media must accept some responsibility for these impacts being felt so acutely by survivors. They must act responsibly and consider the impacts of the current focus on disclosure, and create space for survivor’s voices to be heard.
What do we need going forward?
We need survivors and their voices to be at the heart of all upcoming decisions around disclosure.
We need to remember the statistics.
We need to challenge the media narrative, which has sustained the last seven months, that suggests the criminal justice system is broken for those who perpetrate rape rather than for those who have survived it.
We need responsible, sensitive and accurate media reporting on sexual violence[7].
We need the criminal justice system to listen to survivors, the impacts on them and their lives, and what they need going forward
We need specialist, fully-funded ISVA support for all survivors going through the criminal justice system.
And above all else we need to remember that within this system are incredible survivors who show such strength by speaking out and challenging the silence and injustice pushed on them by perpetrators and society. We need to harness the power we hold to fight for the change all survivors deserve.
[1] https://www.cps.gov.uk/publication/joint-review-disclosure-process-case-r-v-allan
[2] https://www.rasasc.org.uk/independent-sexual-violence-advocate-service/criminal-justice-system/
[3] https://www.justiceinspectorates.gov.uk/cjji/wp-content/uploads/sites/2/2014/04/Rapelitrev.pdf
[4] https://www.justiceinspectorates.gov.uk/cjji/wp-content/uploads/sites/2/2014/04/Rapelitrev.pdf
[5] https://www.justiceinspectorates.gov.uk/hmicfrs/our-work/article/rape-monitoring-group-digests/
[6] https://www.gov.uk/appeal-against-sentence-conviction/crown-court-verdict
[7] https://www.zerotolerance.org.uk/resources/handle-care-media-guide