The Significance of Culture in Criminal Procedure Reform: Why the Revised Disclosure Scheme Cannot Work

Abstract

Disclosure of unused material is essential to a fair trial, and nondisclosure has been a potent cause of miscarriages of justice. In England, Wales and Northern Ireland, however, recent legislation addressing this issue has prioritised the alleged problems that disclosure causes to the prosecution, rather than its demonstrable importance as a safeguard against wrongful convictions. Despite amendment by the Criminal Justice Act 2003, it is argued that the controversial disclosure provisions of the Criminal Procedure and Investigations Act 1996 cannot be made to work. This is a consequence of three fundamental defects in the statutory scheme: lack of consideration of the working cultures and practices of the key protagonists; the resulting inappropriate allocation of responsibilities; and insufficient recognition of the limited sanctions for disclosure failures that can be imposed fairly upon defendants under the current system. It has long been recognised that the effectiveness of due process reforms may be limited by police culture and the inadequate delivery of defence legal services. Drawing on new empirical data, this article suggests that it is equally important to consider the interplay between crime control legislation and occupational cultures. Legislative changes may otherwise reinforce poor practice and provoke injustice.

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