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InternationalJournal of the

Sociology of LawInternational Journal of the Sociology of Law

33 (2005) 118–131

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doi:10.1016/j

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Criminal Pro

www.elsevier.com/locate/ijsl

Advance disclosure and the culture of theinvestigator: The good idea that never

quite caught on?

Chris Taylor

Leeds Law School, Leeds Metropolitan University, Leeds, UK

Abstract

The law relating to the disclosure of unused material by the prosecution to the defence

continues to cause both operational difficulties and miscarriages of justice. This paper seeks to

examine some of the underlying cultural issues within the police service which impact

particularly on the law of disclosure. This is with particular reference to the ‘London City

Bond’ cases, which ultimately failed due to the reluctance of investigators to recognise the

dichotomy between the desire to convict and the due process rights of the accused.

r 2005 Elsevier Ltd. All rights reserved.

0. Introduction

Advance disclosure remains one of the most common causes of miscarriages ofjustice and fundamental concerns remain over the operation of the disclosure regimein the UK. There is a general recognition that the regime for disclosure introducedby the Criminal Procedure and Investigations Act 1996 (CPIA) has never operatedas originally intended,1 however relatively little attention has been paid to the

see front matter r 2005 Elsevier Ltd. All rights reserved.

.ijsl.2005.06.002

dress: c.w.taylor@leedsmet.ac.uk.

verview of the disclosure regime in general see Ormerod. D. ‘Improving the Disclosure

03) 7 E&P 102–129; Redmayne. M. ‘Criminal Justice Act 2003: (1) Disclosure and its

[2004] Crim. L.R. 441; Taylor, C.W. (2001). ‘Advance Disclosure: Reflections on the

cedure and Investigations Act 1996.’ Howard Journal of Criminal Justice 40(2), 114.

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cultural imperatives which operate within the police service and which serve toundermine this vital safeguard. This paper considers the effects of such factors on thedisclosure process and highlights recent examples of failings based on the inability ofsome police officers to reconcile the desire to secure convictions with the requirementto uphold due process protections.

1. Disclosure

1.1 Within the criminal justice system, ‘advance disclosure’ is the process by whichthe prosecution alerts the defence to the existence of any ‘unused material’ gatheredduring the investigation. Such material does not form part of the prosecution case(hence the term ‘unused’), but may have the effect of either undermining theprosecution case or assisting the defence. It is not relied upon by the prosecutionbecause it does not ‘fit’ with their version of events. This can make such materialinvaluable to the defence as it may generate the reasonable doubt required to defeatthe charge. This does, however, require the material to be made known to thedefence and there is an obligation, previously under the common law and now understatute,2 to allow the defence access to any such material. Unfortunately, this has notalways been observed by the police and the prosecution.

1.2 Perhaps the clearest example of both the importance of this process and thedisastrous consequences of its failure was the case of Stefan Kiszko,3 who wascharged with the rape and murder of a young girl in 1975. Documentary evidence ofhis sterility (which rendered him incapable of producing the forensic evidence foundat the scene) was known to the prosecution but was not disclosed to the defence.Consequently Kiszko was convicted and served 16 years in prison before thedocuments came to light and his conviction was quashed. He died shortly after hisrelease. Almost all of the most notorious miscarriages of justice have involved similarnon-disclosure of critical evidence, such as psychiatric reports, which undermine aconfession,4 forensic evidence which conflicts with that adduced by the state,5 orwitness statements which contradict the prosecution interpretation of events.6 Ineach case, material which would have exonerated the accused was deliberatelywithheld by the prosecution, with disastrous consequences.

1.3 In the early 1990s, a series of successful appeals highlighted both the dangers ofdefective disclosure and the degree to which the police and prosecution were able tosuppress potentially undermining material. As a result, the duty of disclosure on theprosecution imposed by the ‘Attorney-General’s Guidelines for the Disclosure of

2A history of the development of disclosure is beyond the scope of this work but, for a more detailed

account, see Niblett. J. (1997) Disclosure in Criminal Proceedings. London: Blackstone; Epp. J.A. (2001)

Building on the Decade of Disclosure in Criminal Procedure. London: Cavendish.3R v Kiszko (1992) The Times 18 February.4R v Ward (1993) 96 Cr App R 1.5R v Maguire and Others (1992) 94 Cr App R 133 CA (decided June 1991).6R v Taylor (Michelle) (1994) 98 Cr App R 361 CA.

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‘‘Unused Material’’ to the Defence’7 became the subject of increasing scrutiny andcriticism, with calls for a more wide ranging duty of disclosure to be imposed on theprosecution.8 As the courts grappled with the precise nature and extent of the duty ofdisclosure, the subject was also under scrutiny by the Royal Commission onCriminal Justice (RCCJ), under the Chairmanship of Lord Runciman. Thegovernment had announced the setting up of the RCCJ on the day that theBirmingham Six appeals were allowed.9 Given the role of non-disclosure in many ofthe miscarriages of justice of the 1970s, it was inevitable that the subject shouldfeature in the Commission’s deliberations. However, the final report was much moresympathetic to the police perspective in terms of disclosure and the governmentresponse was CPIA 1996,10 which limited, rather than extended, the duty ofdisclosure on the prosecution.11 In addition, the Act, for the first time, imposed areciprocal (albeit more limited) duty on the defence. Consequently, the defence wasnow under a statutory obligation to assist the prosecution by revealing the nature oftheir case in advance of the trial.

2. The criminal procedure and investigations act 1996 (CPIA)

2.1 The 1996 Act introduced a three-fold procedure,12 which begins with the‘primary’ disclosure stage, in which the prosecution must:

(a)

7(8A

state

whic

cons

have9R10

11

on C12

ame

disclose to the accused any prosecution material which has not previously beendisclosed to the accused and which in the prosecutor’s opinion might underminethe case for the prosecution against the accused, or

(b)

give to the accused a written statement that there is no material of a descriptionmentioned in paragraph (a).

Secondly, as a result of this process, a schedule of non-sensitive unused material ispassed to the defence. On receipt of the schedule, the defence is required to produce astatement:

(a)

setting out in general terms the nature of the accused’s defence, (b) indicating the matters on which he takes issue with the prosecution, and

1982) 74 Cr App R 302.

process which culminated in the decision in R v Ward (1993) 96 Cr App R 1, where Glidewell LJ

d, ‘We would emphasise that ‘‘all relevant evidence of help to the accused’’ is not limited to evidence

h will obviously advance the accused’s case. It is of help to the accused to have the opportunity of

idering all the material evidence which the prosecution have gathered, and from which the prosecution

made their own selection of evidence to be led.’ (at para 25).

v McIlkenny and Others (1991) 93 Cr App R 287 CA (decided March 1991).

The Act came into force on April 1st 1997.

Largely in response to the findings of the Runciman Commission. Report of the Royal Commission

riminal Justice. (1993) Cmnd. 2263. London: HMSO.

Although the original provisions are included here, it should be noted that this procedure has been

nded by s 42–49 of the Criminal Justice Act 2003.

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(c)

13

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setting out, in the case of each such matter, the reason why he takes issue with theprosecution.13

Finally, the defence statement is served on the prosecution and prompts a re-examination of the unused material, whereby the prosecutor is required to:

(a)

disclose to the accused any prosecution material which has not previously beendisclosed to the accused and which might be reasonably expected to assist theaccused’s defence as disclosed by the defence statement given under sections 5 or6, or

(b)

give to the accused a written statement that there is no material of a descriptionmentioned in paragraph (a).14

2.2 From the outset there have been persistent doubts over the ability of thisstatutory procedure to adequately satisfy the competing crime control and dueprocess imperatives, which were inherent in the legislation.15 Prosecutors anddefence solicitors blame the police who, in turn, blame prosecutors and defencesolicitors. The provisions are widely misapplied and misunderstood, with freshAttorney General’s Guidelines16 issued in an attempt to clarify the obligations onboth police and prosecutors. Errors continue to occur and confidence in thedisclosure regime remains fragile, despite a number of attempts to refine theprovisions. The 2000 Attorney General’s Guidelines have themselves beensupplemented by detailed guidance in both the Code for Crown Prosecutors andthe associated Manual of Guidance, together with new Police/CPS ‘JointOperational Instructions for the Disclosure of Unused Material’ (JOPI).17 Muchof this documentation arose from a review of the procedures18 instigated by the thenDPP David Calvert Smith soon after his appointment in 1998. He too recognised thewidespread concern over police and CPS performance in relation to disclosure19 and,somewhat tellingly, made the decision to publish the hitherto confidential JOPI. As if

s. 5(6).

s. 7(2).

Law Society (1999) CPIA 1996 Disclosure Provisions Survey; British Academy of Forensic Sciences

the Criminal Bar Association (1999) Survey of the Practising Independent Bar into the Operation in

tice of the Criminal Procedure and Investigations Act 1996 Disclosure Provisions; Crown Prosecution

ice Inspectorate (2000) Report on the Thematic Review of the Disclosure of Unused Material;

nikoff, J. and R. Woolfson (2001) A Fair Balance? Evaluation of the Operation of Disclosure Law.

don, HMSO; Auld, L. J. (2001). A Review of the Criminal Courts in England and Wales, Final

ort. London, HMSO.

November 2000.

All three documents are available at www.cps.gov.uk

Crown Prosecution Service Inspectorate (2000). Report on the Thematic Review of the Disclosure of

sed Material. London: HMSO.

Calvert Smith, D. (1999). ‘The Prosecuting Authority’s Role: Making the Criminal Procedure and

stigations Act work to Facilitate Fair Trials and Just Verdicts.’ Conference paper. ‘Disclosure under

Criminal Procedure and Investigations Act 1996,’ London, British Academy of Forensic Sciences

FS); Calvert Smith, D. ‘Getting it Right—Prosecution Disclosure of Unused Material.’ NLJ 2003,

(7087), 1020–1021.

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that were not enough by way of reform, the Criminal Justice Act 2003 includes anumber of fundamental amendments to the disclosure legislation, some of whichhave already come into force,20 imposing further obligations on the defence to revealthe nature of the proposed defence before the trial.

2.3 The fact that so much revision and supplementary guidance has been requiredillustrates the fundamental weaknesses in the original legislation21 and the ongoingstruggle to maintain public confidence in this important aspect of the prosecutionprocess. However, it also raises more fundamental issues. The continuing inability ofthe criminal justice system to implement an effective disclosure regime raises thequestion, is there something about the concept of disclosure itself, which makes it sodifficult to operate effectively?

3. The London city bond cases

3.1 It is clear that the answer is to be found, not in the legislation itself, but in theattitudes and working practices of those charged with the operation of the system.Such factors exert an enormous influence on the manner in which the provisions areimplemented and the way in which they are adapted or ignored to suit operationalimperatives.22

3.2 Further evidence of this cultural opposition to the principles of disclosure hasemerged in recent years for, at the same time as the aforementioned amendments tothe disclosure regime were coming into effect, yet another miscarriage of justicebased around defective disclosure was unfolding in the courts. It followed a similarpattern to previous cases, highlighted similar faults and provides a useful indicationof the true dichotomy between the stated aims of due process legislation such asCPIA and the crime control imperatives of many within the criminal justice system.By examining the failures of this particular example it is possible to draw valuableconclusions about the broader operation of this key aspect of the prosecutionprocess.

3.3 The cases arose from a protracted investigation by HM Customs and Excise(HMCE) into the evasion of excise duty by customers of the London City Bond

20The Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) Order

2005. SI 2005 No. 950.21This is hardly surprising given the hasty consideration of the Bill, which prompted Lord Rodgers of

Quarry Bank to comment, ‘‘in some 25 years of parliamentary life I can remember no occasion on which a

Bill that was not urgent has come forward so ill-prepared and so carelessly draftedyThe truth is that the

Bill has been rushed forward in a most extraordinary way.’’ (HL Debs. vol. 567, col1408). Also, Despite

the clear wish of the Lords that the codes of practice be made available before the Committee stage these

did not materialise until 5 days beforehand, a situation described as ‘quite inadequate’ by Lord McIntosh

of Haringey (HL Debs. vol. 567, col. 1407) and the Bill arrived for consideration with 102 government

amendments having been tabled in a single day.22For a study of operational practice see Taylor. C.W. (2003) ‘Detectives and Disclosure: An Analysis of

the Implementation of the disclosure Provisions of the Criminal Procedure and Investigations Act 1996 by

CID Officers, Based on a Study of Operational Procedure in Two Police Force Areas.’ Unpublished Ph.D.

thesis, University of Durham.

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Warehouse in the late 1990s. The fraud related to alcohol, which could be boughtand sold between dealers in the bonded warehouse without incurring excise duty.The duty became payable once the alcohol was released for sale into the domesticmarket, however, if the goods were simply bound for another bonded warehousethen no tax was paid. By falsifying documentation, which suggested that the goodswere being transferred to another bonded warehouse, it was possible to remove themfrom the warehouse without paying duty and sell the alcohol on the domestic marketat an enormous profit. Aware that individuals were perpetrating large-scale fraud ofthis type involving the London City Bond Warehouse, HMCE began aninvestigation.

3.4 The end result was a series of prosecutions which were, by any objectivestandard, disastrous. There were thirteen separate trials involving a total of 109defendants and an estimated total fraud of £668 million.23 Yet, by the end ofthe proceedings, all appeals against conviction (even those following a guilty plea)had been successful.24 In addition, following lengthy abuse of process hearings,the prosecution offered no evidence against the 40 defendants who were yet tostand trial or in respect of whom retrials had previously been ordered. Suchwas the consternation at this fiasco that an inquiry was ordered and Summer 2003saw the publication of the Butterfield Report.25 It was concluded that the totalcost of the investigations and prosecutions were impossible to quantify, beingdescribed simply as ‘colossal’.26 Something had obviously gone terribly wrongwith the investigations and much of the criticism contained in the final report centredon the mishandling of disclosure issues, particularly in relation to the use ofinformants.

3.5 Almost all of the cases arose from the activities of two participatinginformants, Ed Allington and Alf Allington, who were part of the management teamof the London City Bond Warehouse. Through familiarity with the industry, theywere able to recognise those customers who were engaged in fraud and, underinstructions from HMCE, acted to facilitate the criminal conduct. For this reason,they were extremely useful to the HMCE inspectors who were anxious to preservethis valuable source of information. What undermined all of the prosecutions wasthe desire of the investigating team to prevent the Allingtons from being revealed asinformants, coupled with an inability to recognise the dangers posed by a reliance onthe evidence of individuals who, through the business conducted on their premises,benefited financially from the frauds. The result was a deliberate policy ofconcealment and evasion of their disclosure obligations. This led the investigatorsto mislead their own counsel, the defence and ultimately the court. As Butterfield Jconcluded:

23Para 8.36.24Including R v Patel and others [2001] EWCA Crim 2505; R v Early [2002] EWCA Crim 1904; R v

McIlfatrick [2005] EWCA Crim 693.25Butterfield, J. (2003) ‘Review of Criminal Investigations and Prosecutions Conducted by HM Customs

and Excise.’ London: HMSO.26Para 8.37.

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HMCE officers had liedyand the lies were told by reason of a deliberate decisionon the part of HMCE to conceal from the judge the true status of Alf Allingtonand the real nature of the relationship between HMCE and London City Bond.27

3.6 In addition, there was a reluctance on the part of HMCE to engage with thedisclosure obligations and to provide the defence with the documents to which theywere entitled under CPIA. In the confusion generated by multiple, and oftenoverlapping, prosecutions it was easy to conceal information. However, as eachdocument was revealed, it led to others. This phenomenon was described in theButterfield Report as ‘creeping disclosure’:

the fresh documents themselves revealed the existence of further documents,which the defence would demand; those documents in turn would demonstrate theexistence of yet more undisclosed documents. And so the wheel would keepturning.28

3.7 The critical issue in both of these excerpts from the Report is that the failingsthey highlight have little or nothing to do with the disclosure legislation itself. Theyare not criticisms of the 1996 Act or its associated codes of practice because it is clearthat the legislation, however drafted, would not have prevented this miscarriage ofjustice from occurring. The principal weakness lay not with the disclosure systemitself but with the individuals responsible for the investigation, whose desire to securea conviction and to preserve the valuable flow of information from their informantsled them to mislead both their own counsel and, ultimately, the court. It was only thefact that the Allingtons figured in each of the prosecutions that raised suspicionsover their alleged status as ‘trade sources’ rather than informants. If there had beenone, rather than 13 prosecutions it is possible that their true role may never havecome to light.

3.8 The significance of the London City Bond cases is that they illustrategraphically the continuing influence of shared cultural values within the investigativeenvironment and the capacity of investigators, whether police or HMCE, tocircumvent the ‘obstacles’ presented by legislation such as CPIA. On the basis of thisevidence, it appears that, no matter how rigorous the disclosure regime, it remainsdependent on investigators whose desire to secure a conviction is frequently at oddsto the protections embodied in legislation such as CPIA.

4. The culture and motivation of investigators

4.1 In considering the failure of the disclosure regime by HMCE in these casesthere are, inevitably, echoes of Packer’s due process/crime control dichotomy.29 Theprevalence of crime control values within police culture has been recognised in

27Para 9.64.28Para 8.19.29Packer, H. (1968). The Limits of the Criminal Sanction. Stanford University Press.

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numerous previous studies,30 together with a willingness to adapt the constraintsimposed by due process legislation to meet the exigencies of operational policing.31 Itis clear from the Butterfield Report that the HMCE investigators involved weremotivated by a desire not merely to prosecute frauds, but to prosecute large scale

frauds. This prompted them to allow suspects to continue acting illegally, rather thanarresting them immediately, so that the eventual sums involved would be larger and,as a consequence, the conviction more prestigious. It was this active encouragementof the frauds which was to prove the eventual undoing of the prosecutions. Thepressure to secure a conviction was increased by the amount of money at stake andthis pressure, together with the elitist nature of the HMCE team, inevitably impactedon the conduct of the investigations.

4.2 In this sort of operational environment, disclosure is viewed, not as amechanism for ensuring fairness within the trial process, but as a weapon to be usedby both sides to outmanoeuvre the other. This was manifestly apparent in theLondon City Bond cases, as Butterfield J concluded:

I am left with the clear impression that HMCE believe that disclosure is often atactical game played by defence lawyers in which the lawyers seek not to assistthose they represent but to embarrass, disrupt and disadvantage the prosecutionprocess. The defence, on the other hand, consider that HMCE operate in a cultureof secrecy; they see the solicitors for HMCE as deliberately unhelpful, evasive anduncooperative, withholding material out of obstinacy rather than a genuineattempt to comply with the law. In that pungent atmosphere of distrust it ishardly to be wondered that each becomes suspicious sometimes to the point ofparanoia about the actions of the other.32

4.3 What was not adequately acknowledged, however, was the fact that, withinthis ‘game’ the single most important protagonists are the investigators. This isbecause it is they who make the initial assessment of the value (or otherwise) of any

30A far from exhaustive list would include, Niederhoffer. A. (1967) Behind the Shield: The Police in

Urban Society. New York: Doubleday; Lefkowitz. J. (1975) ‘Psychological Attributes of Policemen: A

Review of Research and Opinion.’ J. Soc. Issues. 31(1): 2-25; Skolnick. J. (1975) Justice Without Trial:

Law Enforcement in a Democratic Society. New York: Macmillan; Manning. P.K. (1977) Police Work: The

Social Organisation of Policing. Cambridge, Mass: MIT Press; Bahn. C. (1984) ‘Police Socialisation in the

Eighties: Strains in the Forging of Occupational Identity.’ J. Pol. Sci. & Adm. 12(4): 390-394; Bennett.

R.R. (1984) ‘Becoming Blue: A Longitudinal Study of Police Recruit Occupational Socialisation.’ J. Pol.

Sci & Adm 12(1): 47-58; Fielding. N. (1988) Joining Forces: Police Training, Socialisation and Occupational

Competence. London: Routledge. p 135; Dixon. D., Bottomley. A., Coleman. C., Gill. M., Wall. D. (1989)

‘Reality and Rules in the Construction and Regulation of Police Suspicion.’ International Journal of the

Sociology of Law: 17, 185–206; Kleinig. J. (1996) The Ethics of Policing. Cambridge: Cambridge

University Press; Smith. D.J. ‘Case Construction and the Goals of Criminal Process.’ (1997) 37 Br J

Criminol 319.31For further discussion see, Ericson. R.V. (1981) Making Crime: A Study of Detective Work. London:

Butterworths; Punch. M. (1985) Conduct Unbecoming: The Social Construction of Police Deviance and

Control. London: Tavistock. p. 13; Shearing. C.D. and Ericson. R.V. (1991) ‘Culture as Figurative

Action.’ British Journal of Sociology 42: 481–506; Pollock. J.M. (1998) Ethics in Crime and Justice.

London: Wadsworth; Reiner. R. (2000) The Politics of the Police. Oxford: OUP.32Para 12.27.

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material collected during the investigation as part of the process of assembling thecase and preparing the case file. The significance of file preparation cannot be overemphasised for, as Cook33 concluded, the ‘positional advantage’ of the investigatoris that every other limb of the criminal justice system is dependent on their version of‘criminal’ events as it is this which is taken as the ‘official’ version for all subsequentstages of the prosecution process.34 This process of case construction, leads to theclassification of certain material as ‘evidence’, which supports the prosecutionversion of events and is, therefore, to be used against the accused. The remainderbecomes ‘unused material’ which is, at best, inconsequential and, at worst,detrimental to the interests of the investigator. As such, it is frequently of minimalinterest.35

4.4 In conducting this process, the 1996 Act creates a fundamental conflict for thepolice for, although officers are required to conduct their investigations with alldiligence they must also actively seek out and disclose information which assists thedefence. Inevitably, many officers regard this as undermining their work by reducingthe chances of achieving what they see as their primary objective of securing aconviction,36 leading to the common perception that, by providing adequatedisclosure, the police are ‘doing the defence’s job for them’. CPIA is predicated onthe modern role of the police officer, as a gatherer of evidence rather than an agent ofthe prosecution,37 but this role does not come naturally to many officers and createstensions which one Bramshill lecturer recognised in the following terms.

3

Soc3

age3

tha

des

Ro

Ver

Lo3

and

Jac3

Thu

If it is the proper role of the police service to bring people whom it believes to bepersistent or outrageous criminals to court, and to gather and present its evidencein such a way that there is a very strong likelihood that they will be convicted,then that demands a certain sort of behaviour and recognises a certain set ofvalues. If, on the other hand, we believe that the proper role of the police service isto make even handed inquiries into the background and circumstances of a crime,so that a proper conviction may be achieved if the evidence, fairly gathered, issufficient, then that requires a different approach and a different set of values. Thepolice officer becomes more like a scientist whose job it is to examine the evidence

3Cook. K. (1977) ‘Exchange and Power in Networks of Interorganizational Relations.’ The

iological Quarterly 18, 62–82.4Equally, those cases which they do not define as ‘criminal’ do not come to the attention of the other

ncies in the first place.5In the words of the former DPP, David Calvert-Smith, ‘‘unused material is a bore and much less fun

n the preparation and presentation of the case. There is therefore an instinctive and understandable

ire to get through it as quickly as possible.’’ Calvert Smith. D. (1999) ‘The Prosecuting Authority’s

le: Making the Criminal Procedure and Investigations Act work to Facilitate Fair Trials and Just

dicts’, in ‘Disclosure under the Criminal Procedure and Investigations Act 1996,’ conference paper.

ndon: British Academy of Forensic Sciences (BAFS).6‘Most police officers have one very specific goal in mind, to produce guilty people before the courts

see them justly convicted.’ Chesshyre. R. (1989) The Force Inside the Force. London: Sidgwick &

kson. p. 5.7The principle of the prosecutor as working for the furtherance of justice is well established. R v

rsfield (1838) 8 C & P 269.

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and to see in which direction it leads him, rather than to rely upon his intuition inreaching conclusions.38

4.5 It is clear that many police officers have experienced considerable difficulty inadapting to this new emphasis within the investigative process. In theory thecontradictory burdens are reconciled by the investigating officer’s belief in thefairness of the charge as a reflection of the evidence, but this only serves to highlightthe difficulty of the task, for it is precisely this certainty of suspicion which presentsthe greatest potential obstacle to the impartial presentation of conflicting evidence.

4.6 This places the investigator in an invidious position. Although there is clearlynothing sinister in acknowledging a genuine belief of the suspect’s culpability on thepart of the police (indeed to do so would be to suggest that the police shouldzealously attempt to convict where even they are unconvinced of guilt) there must, bydefinition, come a defining moment in the investigation when the guilt of the accusedceases to be a matter of conjecture and instead becomes such as to constitute anobjective fact of the investigation. Some have gone as far as to suggest that thisacceptance of the guilt of the accused renders the subsequent investigative processlargely irrelevant39 for, as Holdaway (himself a police officer) explained:

Officers suppose that they have access to privileged knowledge because they‘‘know’’ that the suspect is guilty and therefore accept some responsibility forseeing that justice is done, even if that means helping the evidence along a little.40

4.7 Even leaving aside Holdaway’s allusion to ‘helping along’, the point at whichthe guilt of the suspect becomes viewed as an objective fact must represent a criticaljuncture in the investigation, as it marks the point at which contradictory evidenceand lines of enquiry will, inevitably, be devalued and less attractive in the eyes of thepolice.41 This raises the question of how early in the investigative process this

38Villiers. P. (1997) Better Police Ethics: A Practical Guide. London: Kogan Page. p. 48. Although he

also concluded that the ACPO Statement of Common Purpose and Values were, ‘Fine words. They cannot

always be achieved; but their utterance is necessary.’ [p. 53]. Similar calls for the police to adopt a more

impartial approach have also come from a former Chief HMI who recommended that the police ‘ymust

cease to believe that they are solely the agents of the prosecution and become whatythey were originally

designed to be, the gatherers of evidence.’ Woodcock. J. (1992) ‘Why We Need a Revolution.’ Police

Review 16th October 1929–32.39Smith. D.J. (1997) ‘Case Construction and the Goals of Criminal Process’, British Journal of

Criminology, 37/3, 319. Sykes and Brent saw this as a process of ‘confirmation or redefinition’. Sykes. R.,

Brent. E. (1983) Policing: A Social-Behaviorist Perspective. Princeton: Rutgers University Press. p. 80.40Holdaway. S. (1983) Inside the British Police. London: Basil Blackwell. p. 112. This paternalistic

approach to the criminal justice system is frequently expressed by police officers, as articulated by one

Chief Inspector, ‘The feeling is that the rules of evidence are weighted [against the prosecution] and need

help. There’s the honest belief that the fellow is guilty and the law needs a bit of help to ensure the right

result is achieved.’ Morton. J. Bent Coppers. London: Warner. p. 275. Such values lie at the root of much

so-called ‘noble cause corruption’, ‘There is some moral justification for getting around the rules if it

increases the likelihood of getting men convicted whom they believe to be guilty.’ Sir Robert Mark

(Observer interview, May 16th 1975).41This allows the police to portray the evidence they produce as information, which has been ‘found’

(such as ‘voluntary’ confessions) and so to depict such information as a ‘truth’, existing independent of the

exercise of any police power. Green. A. (1997) ‘How the Criminal Justice System Knows.’ Social and Legal

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threshold is reached and the extent to which it may influence the subsequentcollection of evidence and presentation of the case.42

4.8 Once the police have satisfied themselves of the culpability of the suspect manywould suggest that the cultural attitude of the police is inherently inconsistent withthe subsequent even handed assessment of contradictory evidence. This is not theconsequence of some individual decision but is a reflection of institutional workingmethods, which draws on many of the cultural and training issues already touchedupon, together with operational pressure to achieve results in the form of suspectscharged and convicted. It is the interrelationship between such cultural and practicalpressures, which has raised doubts over whether there exists any real incentive forinvestigators to critically examine ‘friendly’ witness evidence43 and it is impossible toaddress the question without recognising the influence of cultural factors andtraining.

4.9 Case construction occurs within a structured environment, where the culturalnorms dictate the emphasis, which may be placed on particular facts and thoseindividuals who are more or less likely to be believed. The police create generalisedtypologies of the public in order to refine operational strategies to be targeted on‘appropriate’ individuals in order to facilitate the definition of situations and theconstruction of an ‘appropriate’ response44 and this process is highly influential atthe file preparation stage, where case files are worded in such a way as to conformwith existing types of cases in order to make them more compelling. This processalso impacts on the investigation itself by making the evidence of certain individualsappear inherently more or less believable to the investigating officer. In effect thisamounts to negative stereotyping, which is hardly a new problem within the policeservice,45 but, whereas it is issues of race which have usually attracted attention inrelation to such labelling, it is the much simpler categorisation of the suspect as‘guilty’ which undermines the impartial collection of contradictory evidence.Although the temptation is to view this in terms of deliberate conduct, with groupculture condoning the manipulation or obfuscation of evidence, it is more likely that

(footnote continued)

Studies. 6/1 11. It might be argued that PACE 1984 was an attempt to restrain such conduct, however

PACE does not extend to the law of disclosure.42Even Sir Paul Condon recognised the temptation to, ‘yelaborat[e] on things that were said in a way to

make sure that the case had the strongest chance of going through to a conviction.’ Panorama interview.

BBC 5/4/93.43The question was also posed by the Royal Commission on Criminal Justice. Maguire. M., Norris. C.

(1992) ‘The Conduct and Supervision of Criminal Investigations’. Royal Commission on Criminal Justice

Research Study No. 5. p. 51.44Shearing C. (1981) ‘Subterranean Processes in the Maintenance of Power.’ Canadian Review of

Sociology and Anthropology. 18, 3; Shearing C. (1981) ‘Deviance and Conformity in the Reproduction of

Order’, in Shearing C. (ed) Organisational Police Deviance: Its Structure and Control. Toronto:

Butterworths.45‘Few police officers would be so naı̈ve, I suspect, as to state in an attributable context that because

someone is known to be a gypsy, that is sufficient cause to know him to be a thief. However, in police

folklore it is generally accepted that gypsies are thieves.’ Villiers. P. (1997) Better Police Ethics: A Practical

Guide. London: Kogan Page. p. 122. (original emphasis). It should be noted that Villiers is himself a

lecturer at Bramshill.

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the ‘working rules’ of the police, the importance placed on ‘previous’ and the factthat suspicion is frequently seen as a matter of instinct mean that more unconsciousprocesses may be at work, as McBarnet acknowledged:

Given their own involvement, interests, and indeed beliefs in the case the policeare likely to create, with the best will in the world, a sense of pending conviction.46

4.10 This is a significant interpretation, not least because it recognises that theenvironment in which officers approach the task of investigation is subject to factors,such as operational culture within the police service and the pressure of publicexpectation, which combine to produce a preconception of guilt without, necessarily,any conscious attempt to subvert the investigative process.

4.11 In assessing the origins of this culture of preconception it is clear that one ofthe most powerful influences is the high level of recidivism, which exists within mostareas. The reality of police work means that officers spend a large proportion of theirtime dealing with the same pool of persistent offenders and the perception of a‘hardcore’ of offenders underpins the approach of officers towards the communitieswhich they police. An obvious manifestation of this is officers’ pride, not only intheir knowledge of their local criminal community but also their ability to identifylikely suspects.

4.12 Initially, this appears to typify all that the public might expect from the policeand such instinctive policing is certainly recognised within the culture of the police asa central characteristic of the ‘good’ officer. Dangers arise with such an approach,however, if the investigator’s certainty of guilt influences the subsequent investiga-tion by minimising the importance of any conflicting evidence,47 motivated by thedesire for premature closure and the adoption of what might be termed a

46McBarnet. D. (1981) Conviction: the Law, the State and the Construction of Justice. Oxford Socio-

Legal Studies. London: Macmillan. p. 61. ‘The adversarial system itself moulds a context for the

discretionary decisionythe great benefit is to win; the great cost is to loseydiscretionary actions made

under this cost/benefit assumption will invariably tend toward presumption of guilt in assessing the

meaning of facts.’ McCoy. C. (1996) ‘Police, Prosecutors and Discretion in Investigation’, in Kleinig. J.

(ed) Handled with Discretion: Ethical Issues in Police Decision Making. Lanham, Maryland: Rowman &

Littlefield. p. 166.47The potentially detrimental impact of such police preconceptions has received attention in relation to

the interviewing of suspects. ‘ytheir minds are made up before the interview starts and, once on these

tramlines, they are not easily derailed. Denials are brushed aside and alternative perspectives and

explanations disregardedythe interviewer does not consider false confession in such cases even as a

remote possibility because the assumption of guilt is honestly held.’ Baldwin. J. ‘Police Interviewing

Techniques: Establishing Truth or Proof?’ (1999) 33 Br J Criminol 325. Such findings mirror a 1992 study

which found that 75% of the sample of police interviewers were certain of the guilt of the suspect prior to

the commencement of the interview and, in 80% of cases, the stated aim of the interview was simply to

obtain a confession. This was particularly so where the suspect had previous convictions. Moston. S.,

Stephenson. G.M., Williamson. T.M. ‘The Effects of Case Characteristics on Suspect Behaviour During

Police Questioning.’ (1992) 32 Br J Criminol 23. A later study by the Police Research Group censured

officers for appearing to have prejudged the outcomes of cases and for failing to be impartial. Many were

judged to be biased or ‘blinkered’, in their unwillingness to consider all aspects of the case or to accept the

possibility of any deficiency in their investigation. Police Research Group (1995) The Presentation of Police

Evidence in Court. London: HMSO.

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‘confirmatory bias’ in seeking only that information which supports the version ofevents which the officer ‘knows’ to be true48 and minimising the opportunity forcontradictory material to come to light. In this way, the officer’s early acceptance ofthe guilt of the suspect is reinforced by the confirmatory bias of the subsequentevidence gathering process.

5. Conclusion

What then can we learn from the London City Bond cases in relation to disclosureand CPIA? Firstly, that the operational pressure of such inquiries produces a desireto secure a conviction, which is in conflict with the due process safeguards embodiedin provisions such as CPIA. That is not to say that that investigators necessarily seekto deliberately subvert their disclosure obligations but, rather, that the requirementto reveal potentially exculpatory material is subsumed by the desire to achieve thesuccessful prosecution. Secondly, that the pivotal role of the investigator as theinitial gatherer of the evidence allows them, to some degree, to influence the way inwhich that material is interpreted by subsequent stages of the criminal justice system.Material which is seen as irrelevant or harmful can be downplayed or evenconcealed, frequently with the knowing assistance of colleagues. Again, this shouldnot necessarily be seen as a deliberate policy of evasion but, instead, a shared systemof norms and values which sees securing the conviction as the ultimate goal andwhich is prepared to turn a collective blind eye to factors which undermine that goal.

It would appear that such factors played a part in the failure of the London CityBond cases, where investigators should have realised the risks of relying on theevidence of a participating informant and seeking to conceal that involvement fromthe court. Instead, a desire to secure a ‘major’ fraud conviction caused them toignore the dangers. This is the principal lesson to be learned from the affair, that thevalue system of the investigator is geared to the crime control imperative of securinga conviction and that due process safeguards, such as disclosure, are oftensubconsciously ignored as a consequence.

Against this background it is difficult to envisage any reform to the disclosureregime, which might address the structural and cultural forces, which appear tomake the concept of revealing information to the defence so problematic. As alreadystated, there have been a range of amendments to CPIA and the disclosure regime inan attempt to prevent a repetition of the events of the London City Bond cases.

48‘Confirmatory bias is endemic in the police service. The situation is made all the worse by many

officers being unaware of it and when made aware of it, many arguing that it is a sensible and natural way

to solve problems and, in particular, to conduct investigations.’ Ede. R., Shepherd. E. (2000) Active

Defence. London: Law Society. p. 115. Such concerns are harldy new with the Fisher Report concluding

that, once officers became convinced of the guilt of the accused (through the subsequently discredited

confessions) then ‘enquiries continued only to strengthen the evidence against them.’ Home Office. (1977)

Report of an Enquiry by Hon Sir Henry Fisher into the Circumstances leading to the Trial of Three Persons

on Charges Arising out of the Death of Maxwell Confait and the Fire at 27 Doggett Road, London SE6.

London: HMSO. p. 203.

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HMCE have also instigated new internal procedures to remedy the defects outlinedin the Butterfield Report. However, it is suggested that all such measures are oflimited value when the investigational culture remains so influenced by the crimecontrol value system. The recent case of R v West (Ricky)49 saw yet another exampleof police concealing from the court the true nature of informant evidence, to theextent that the Court of Appeal noted:

indeed, even the officer in the case who appeared before usywas himselfsurprised to discover the complete factual picture on the police side as it thereafteremerged and was put before us.50

It remains to be seen what the chances are of a fair trial when the police conceal,even from their own officers, the true status of intelligence material, such is theingrained desire for secrecy. The inevitable consequence must be that the events ofthe London City Bond cases will be repeated, thus ensuring that similar cases willcome before the courts in the near future.

49[2005] EWCA Crim 517.50Ibid, para 10.