of conferences and telephone conversations with police officers in the investigating team, the fact that communication was also made by WhatsApp, the records of which are not available, and paucity of records made by police officers of their meetings with the two accomplices whilst they were in custody evidence an indifference to creating records of steps taken in the preparation of the case. Regrettably, the egregious failures of disclosure in this most serious case are suggestive of a possible systemic failure.
74. It is necessary that the principles of disclosure, articulated in the Department of Justice’s ‘Prosecution’s Code’ are underpinned and given effect by a simple system in which prosecuting counsel give directions to investigating police officers in respect of areas of potential unused material, requiring confirmation as to whether or not such material does or does not exist. Such directions and responses ought to be in writing and retained. Thereby, an ‘audit trail’ is created, permitting counsel prosecuting the case to be fully informed of the steps taken to identify, retain and disclose unused material. Also, the issue of full and proper disclosure by the prosecution is a matter that, in appropriate cases, judges may wish to raise and examine in some detail in pre-trial reviews.[1]
75. For the reasons submitted by Mr Cheung, we are satisfied that the material contained in the letters written by Billy Kay, in the context of the multiple visits made to him by police officers, the limited records of
- ↑ Judicial Protocol on the Disclosure of Unused Material in Criminal Cases—Judiciary of England and Wales (2013).
