The recent disclosure fiascos show the criminal justice system is in deep crisis – why are senior figures denying this simple fact?

31 January 2018

Following on from my article in December on the near disaster in the case against Liam Allan, a young man charged with a number of very serious sex offences the Crown Prosecution Service (CPS) and Metropolitan Police Service (MPS) have published a short joint review of the handling of the unused material in his case.

In short the report puts the principal blame on the police officer in charge of the case (OIC) for failing to bring to the attention of prosecutors the existence of thousands of lines of data: including hundreds of text messages which so obviously undermined the prosecution case that the complainant had been raped that as soon as the material was brought to light, three days after the trial had begun, the case was stopped at the request of the prosecution barrister even after the complainant had given her evidence.

The obvious flaw in the whole disclosure process is that under the Criminal Procedure and Investigations Act 1996 and the accompanying Code of Practice (both can be accessed via the endnotes in the CPS/MPS report), responsibility for listing items of unused material and revealing their existence depends on the police investigation the alleged crime. If a police officer does not do this either because of pressure of work, lack of resources, lack of interest or because that particular officer is so driven by the desire to gain a conviction that he allows that to dominate his thinking, the disclosure process can be fatally compromised before the case has even begun to take proper shape.

The current scheme for disclosure was introduced as a direct response to the catastrophic failures of disclosure in such famous cases as those of the Birmingham 6 and the Guildford 4 in the 1970s.  It was however also a government reaction to what were claimed to be “fishing expeditions” by defence lawyers looking for information that might help exonerate their clients and a desire not to “hand the keys to the warehouse over to the defence.” Since it is almost always likely to be the defence who know better what material might help to establish their client’s innocence, the exclusion of the defence under the current scheme remains one of its key failures. It is not therefore a great surprise that there have continued to be cases which collapse due to a failure of the prosecution to make proper disclosure of unused material. Over the years such cases have involved drugs operations and even cases of murder, and have certainly not be confined to cases of rape or other serious sexual assault.

In the case of Liam Allan the complainant’s phone was examined by the police and it seems that at an early stage the OIC failed to identify any material of relevance either to the prosecution case or the defence. The existence of the phone download was mentioned on a Crime Reporting Information System (CRIS) log sent to the CPS, but it was not disclosed to the defence and no mention of it was made on the unused material schedule which was in due course copied to the defence.

The CPS/MPS report also criticises the prosecutor at the CPS for failing to ask the OIC about the phone download given that at least he/she was aware of this as a result of seeing the CRIS report. A second prosecutor who took over conduct of the case is also criticised for not inquiring of the OIC as to the potential relevance of the phone download or its absence from the unused material schedule.

What might have been thought to be a golden opportunity to correct the previous mistakes, but which in the end only served to underline the weakness of the current disclosure provisions, came when the defence served their defence statement. This included a specific request for “all text messages between D and C during and after the relationship.” The reference to text messages should have set the alarm bells ringing in the CPS office even if not with the OIC who had already decided there was nothing relevant to disclose.

It is apparent that the data from the mobile phone had been considered by the OIC because following a conference between the police, CPS and prosecuting counsel some text messages between C and her friend were served as evidence to be used in the trial. However since the OIC was still claiming that there was nothing relevant in the phone download in the sense of undermining the prosecution case or assisting the defence case it was agreed that the download did not need to be served on the defence.

And so it was that only on the first day of trial was newly instructed prosecution counsel asked by the defence barrister about the existence of numerous text messages between the complainant and D.   Despite being fobbed off with the by now regular refrain of “there’s nothing to disclose”, prosecution counsel finally obtained a copy of the download and once this had been handed to the defence the true position was speedily established and Liam Allan was saved from the horror of a wrongful conviction for an offence he was not guilty of and the very long prison sentence that would inevitably have followed.  It is still makes my blood run cold just thinking about the consequences of failure in this case.

None of this concern is reflected in the bland CPS/MPS report that itemises the errors made and recommends further training for those involved in disclosure of unused material and the appointment of “Disclosure Champions”, but at no point acknowledges or much less reflects on the near catastrophe that resulted from the failure in this case. Nor has the response from senior legal figures to this and other similar failures that have recently come to light been the least bit encouraging. Announcing the review of all current rape cases the Director of Public Prosecutions (DPP), Alison Saunders, gave the impression that this was just a matter of dealing with a few isolated problems rather than a systemic crisis.  Nor did she make any reference to the chronic lack of resources that she and everyone who deals with cases in the criminal courts is well aware of and many suspect to be at least one of the causes of disclosure failure in these cases. Then in a recent radio interview the Attorney-General, Jeremy Wright QC specifically denied that resources had any relevance to the problem that have arisen and went on in typical politician mode to quote some meaningless statistics about the number of new specialist prosecutors that have apparently been appointed.

I have no doubt that, as Liam Allan’s solicitor Simone Meerabux has said, some police officers put gaining convictions ahead of their duty to investigate cases fairly. As I have argued before the current policy of “believe the victim” may also be adding to the problem in discouraging even-handed investigation of alleged crimes. But to deny that a lack of adequate resources is also likely to be to blame here is to be wilfully blind. The criminal justice system has been crippled by cuts in resources for the police, cuts to legal aid fees for those who both prosecute and defend criminal cases as well as attitudes and policies designed to favour one side of an adversarial process at the expense of the other.  We have had a series of disastrous appointments to posts such as Lord Chancellor none of whom have had either the ability or the time to do anything meaningful to stop the damage to the system becoming worse.

We have now reached crisis point. This week’s message from the Chair of the Criminal Bar Association spells that out. How many more near catastrophes do we need before some serious action is taken? The likes of the DPP, the Attorney-General and the Lord Chancellor should stop pandering to their political paymasters and do their job and speak out for the sake of all us.

Mark George QC is a barrister and Head of Chambers at Garden Court North Chambers.