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The wrongfully accused may feel heartened by two items of good news in the last week. First there was Judge Mann’s judgement in favour of Cliff Richard who had his reputation, health and income trashed by the actions of the BBC. You can read Simon Warr’s views on this judgement here. Secondly the Justice Select Committee reported on disclosure failings.
It has long been a complaint of our members that they have had great difficulty in getting disclosure of evidence that may help their defence. Sometimes evidence has become available at the 11th hour putting unreasonable demands on the defence team, or it has been completely withheld. It has always seemed grossly unjust that a defendant should encounter such obstacles in obtaining a fair trial, and it has inevitably been a recipe for miscarriages of justice.
The current guidelines concerning disclosure in criminal cases
The guidelines concerning disclosure are clear- ‘the prosecutor has the duty to disclose material “which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused”; and gives provision for defence teams to submit a statement (the defence statement) outlining their case and to request material that has not been disclosed’. Some material, especially in sexual offence cases is very sensitive, but “the law is clear in that the right to a fair trial is an absolute right which cannot be violated to protect the right to privacy”. Unfortunately, in practice these guidelines are not always followed and lives have been ruined as a result.
Failure to disclose nearly sent Liam Allan to prison
This problem has long been recognised, to quote the report “problems with the practice of disclosure have persisted for far too long, in clear sight of people working within the system”. A number of reports as far back as 2011 recommended changes in practice, but little was done until the case of Liam Allan and others came to the attention of the media. These men may well have been imprisoned if evidence aiding their defence had remain undisclosed. Despite this the DPP Alison Saunders made the extraordinary statement that she believed that there were no innocent people in prison as a result of disclosure failings, “as far as she could tell”. Now she has had to answer questions before the Justice Select Committee, one notable exchange went like this, to quote the report
Q352 Chair: People will have been wrongly imprisoned because of failures of disclosure, won’t they?
Alison Saunders: Some people have been. They have been referred through to the CCRC. Indeed, we have referred some of those to the CCRC.
Major problems identified
The report identified major problems with the current system of disclosure.
- an attitude amongst the police that disclosure was an administrative burden and not part of the process of investigation
- most police forces and their officers recognise their duty as a search for the truth but that this has not been, and is still not, universal
- changes in technology meaning the police had very large quantities of data to analyse and lacked the resources to deal with it
- limited legal aid funding for defence solicitors making it difficult for them to look for gaps in the prosecution evidence and seek disclosures
- the CPS measures its performance by number of hearings and convictions
- lack of training concerning disclosure, lack of experience, and poor judgement
- and most notably, absence of strong leadership
The reports recommendations
The report makes many welcome recommendations including the need for a widespread cultural shift on the need for disclosure, but to my mind the most important of all is that all those with leadership responsibility should now be held accountable. There have been reviews on disclosure before but little action. Now the Attorney General, CPS, College of Policing, Ministry of Justice and Home Office have all been given a recommended action plan and will be expected to report on their progress quarterly.
For the sake of of defendants and complainants alike, lets hope that the recommendations in this report are implemented fully and speedily. Unfortunately, for those already languishing in prison due to disclosure failures, it has taken far too long for our justice system to live up to its name. Those maintaining innocence need their cases reviewed, because given the errors made in the past, it is quite possible that evidence that may have prevented their conviction is gathering dust in a drawer in a police station somewhere.
Sometimes even proper disclosure can’t save an innocent person
There is an even more serious problem that is not being addressed. What would have happened to Liam Allan if there were no such things as mobile phone records? Without any solid evidence that his accuser was lying, whose testimony would have been believed by the jury? I think members of FACT know the answer to this question. The rules of evidence concerning sexual offences are at risk of bringing about serious miscarriages of justice. If the reader is finding this difficult to believe please look at this article written by Dr Ros Burnett, a criminologist from Oxford University.