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Innocent people wrongly convicted on the basis of undisclosed evidence is arguably the biggest failing of our justice system – and potentially one of the most easy to solve.
This week yet another criminal trial has collapsed due to serious errors by Police who did not disclose evidence to the defence.
This time, a people trafficking case where the defendant was forced to give birth in custody, while facing the prospect of a lengthy custodial sentence. The case has been thrown out by the Judge due to “wholesale failure” of disclosure.
While I have every sympathy for the Police, blaming cases of evidential injustice on a lack of funding is an easy way out
In the same week the Met Police has apologised to Liam Allen, for failing to disclose texts that exonerated him of rape.
A series of commentators including former Lord Chief Justice, Lord Thomas on the Today programme, have cited issues of underfunding for these failings. The line is – there’s not enough time, resource and technology available for Police to adequately perform disclosure procedures.
While I have every sympathy for the Police, and our wider legal system is decimated by cuts, blaming cases of evidential injustice on a lack of funding is an easy way out.
My experience as a criminal defence solicitor for over 30 years, appearing in the Court of Appeal in numerous matters is that the Police simply should not be tasked with a task that requires zero bias. They can’t deliver.
It’s not about resources. This is about a systemic culture that is unlikely to be remedied quickly or entirely.
Relying on the Police to oversee disclosure of evidence in criminal trials does not deliver justice
For example, I am working a harrowing case being considered by the Court of Appeal where the appellant boyfriend is serving life for the rape of his partner.
During trial, the Police failed to disclose evidence in support of his defence. This includes texts, letters and statements from the complainant that the rape never occurred and evidence that she had previously fabricated rape accusations.
A third-party witness was never questioned, nor their details recorded. This casts serious doubt on the safeness of this conviction.
This is not a one-off. Relying on the Police to oversee disclosure of evidence in criminal trials does not deliver justice.
For those unfamiliar with disclosure, the Attorney General describes it as, “a vital component of a fair criminal system”.
The golden rule is that “full disclosure should be made of all material help by the prosecution that weakens its case or strengthens that of the defence.”
Once a defendant has been charged, a Police Officer (usually one closely involved with the investigation) will be assigned as the Disclosure Office for the case.
The reality is that police-appointed Disclosure Officers are often too close to victims, cases and causes to maintain objectivity
It’s their job to “inspect, view or listen to all relevant material that has been retained by the investigator”.
The Disclosure Officer will make a decision on evidence that should be shared with the defence. There is often little scrutiny of this decision, and a sense of deference to this decision often plays out in court.
Defence teams will often be accused of time-wasting ‘fishing expeditions’ when they ask for undisclosed evidence to be produced.
The reality is that police-appointed Disclosure Officers are often too close to victims, cases and causes to maintain objectivity. This has a material effect on defendants. Rape trials across England are being reviewed due to this very issue.
We could do away with rules of disclosure altogether. Make all evidence available to both sides, starting from a standard that says every scrap of evidence must be available for scrutiny by the defence.
This is unlikely to happen. The political will is not there to radically overhaul a long-standing system.
Asking challenging questions of our criminal justice system is not about letting the guilty go free. It is about honouring the principles that underpin it
The alternative? Remove the burden of responsibility for disclosure from the Police.
Whether undertaken by an entirely separate entity, or specially-trained CPS officers, the threat of bias will drastically drop if those working the evidence are not involved with investigations.
This could also be supported by placing a higher level of personal responsibility on to prosecuting counsel to ensure proper disclosure.
When the CPS instructs barristers to prosecute, those barristers should be scrutinising the fairness of the Police’s disclosure. They are the last line of examination of evidence before trial and have a duty to uphold standards of justice.
Asking challenging questions of our criminal justice system is not about letting the guilty go free. It is about honouring the principles that underpin it.
Wrongful convictions, shaky evidence and shadowing of facts serves neither victims or accused. This must change if we are to claim to set a gold standard for criminal justice across the world.
John Davis is Solicitor Advocate at Davis-Law & Senior Consultant at Setfords Solicitors
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