Disclosure failings: under-funded, under-trained and unfair

A fair disclosure process is the heart of a healthy criminal justice system.  The police and prosecutors (who, whilst responsible for investigating and prosecuting, should of course be impartial and open-minded) are entrusted with reviewing evidence in a case and - where it may assist a defendant or undermine the prosecution's case - disclosing its existence to the defence.  The process should be repeated if a defence statement is disclosed, which sets out the nature of a defendant's defence and may make further disclosure requests (and/or render hitherto insignificant evidence, disclosable).  Without the task of disclosure being undertaken properly, the defence may never know, or be provided with evidence that either questions the prosecution's case or completely exonerates a defendant.

It is clear that there is a systemic disclosure problem across our criminal justice system; a problem which has only recently been cast into the spotlight following the collapse of a number of criminal trials.

Figures obtained by the BBC under the Freedom of Information Act reveal that in 2017 alone 916 defendants had their charges dropped following disclosure failings coming to light.  This was a 70% increase on the figures for 2014-15.

The evolution of social media has meant that there has been a rapid increase in the digital evidence available in each case.  However, under-funding and a lack of resources, has rendered the police and the prosecution ill-equipped to manage and assess such evidence. The Chairman of the Bar Council, Andrew Walker QC, explained that it is a “classic case of money not being put into the system, and that absence is leading potentially to trials not being fair and to miscarriages of justice.”

Without a doubt, the absence of sufficient funding can and does lead to miscarriages of justice.  But is there a deeper problem? Is it really a question of resources or rather that the entire guiding ethos is wrong?

In the recent case of Liam Allan, whose trial for 12 counts of rape and sexual assault collapsed after it emerged that the prosecution had failed to disclose crucial evidence. A judge threw out the charges against Mr Allan after it emerged that police had failed to disclose evidence on a computer disk showing text messages from the alleged victim repeatedly asking for “casual sex”. The OIC (officer in charge) had taken the decision that there was no evidence on the phone download that was capable of undermining the prosecution case or assisting the defence and therefore did not disclose it to the defence. This was despite repeated requests from the defence, including in the defence statement for disclosure of “all text messages between D and C during and after the relationship”. Whilst it is important to note that a joint review by MET Police and the Crown Prosecution Service found that “there is no evidence that the phone download was withheld deliberately by the OIC”, it was not the case that the entirety of the evidence on the disk was missed. This is clearly demonstrated by the fact that the CPS  submitted as evidence other text messages between Mr Allan and the alleged victim that had been downloaded from the same mobile phone. The “lack of knowledge” and “lack of challenge” that were cited in the joint review as being at the core of the disclosure problems in this case only appear to emerge when dealing with evidence that assists the defence.

Similarly in the recent case of Samson Makele, the defence discovered vital evidence that had been withheld by the prosecution causing the case to collapse just four days before trial. Mr Makele was accused of raping a woman he met at Notting Hill Carnival and then preventing her from leaving his flat. He consistently denied the charge and maintained that the sex was consensual. The defence made a request to view the photographs on the alleged victim’s phone, however this request was refused, with the prosecution only disclosing selected text messages. It was only after the defence commissioned their own forensic analysis that more than a dozen photographs of Mr Makele and the alleged victim naked in bed together, clearly smiling and “snuggling”, were discovered. The CPS subsequently offered no evidence against him (resulting in an acquittal).

Whilst recognising the immense pressure that the police and CPS are under, particularly in the light of recent cuts, it is often difficult to see how vital pieces can go unnoticed.  These examples suggest that resources are also required to properly train those responsible for disclosure.

In an interview with Today programme on 17 January, Director of Public Prosecutions Alison Saunders (when asked about recent disclosure failings) said "we've got so much social media and digital evidence to analyse, how could we know it's there unless the defence tell us?". What is most concerning about this response is that it suggests that the role of the police is to only locate evidence that supports the victim and it is the responsibility of the defence to locate their own evidence.  This would mean, in effect, the evidential searches conducted by the police are no longer objective and an adversarial system is being applied before there has even been a charge. If this is the case, whether or not there is a fair trial rests solely on the competence of the defence lawyer.

At Brett Wilson LLP we conduct all manner of criminal defence work, from minor offences up to the most serious and complex trials. If you have concerns about the standards or fairness of a criminal prosecution, click here to see how our crime team can assist.