As has been highlighted by the collapse of a number of high profile court cases, the issue of evidence being disclosed by police and prosecutors to defence teams is causing major concern across our legal system at present.
It is a serious matter, and one which has led to strong criticisms of both the police and the Crown Prosecution Service (CPS), as innocent people have lived through the nightmare of being accused of serious offences such as rape and sexual assault, and had their reputations forever tarnished despite their innocence.
In the recently reported case of Liam Allan, for example, a trial was able to progress for some three days before thousands of text messages were revealed which undermined the prosecution case against him in dramatic fashion.
Mr Allan is reported to have said that his normal personal life had been ‘completely ripped apart’ for two years by the case being pursued against him – a case which should have been dropped long before it reached trial.
Having worked for more than 34 years in the criminal law field and held the role of a National Advocacy Manager for the CPS before joining Hudgell Solicitors, the current review and findings are of particular interest to me.
I have extensive experience in the process of the disclosure of unused material in criminal work, and have been involved nationally in charging advice over many years’ service with the CPS, developing and delivering training products on the topic.
So, in light of the major investigations and reviews now taking place to scrutinise the disclosure of evidence in around 600 cases, it is important to consider exactly what the law demands.
Prosecutors must challenge any areas of investigation where detail is lacking
Under the Criminal Procedure and Investigations Act (CPIA) Code of Practice, it is stated that investigators are required to pursue all reasonable lines of inquiry, whether these point towards or away from the suspect.
When the police ask for authority to charge a suspect they are required to provide key evidence and any material which could reasonably be considered capable of undermining the prosecution case or assisting the case for the accused.
If the CPS authorises a charge, both the police and prosecutors then have a duty to work together to ensure that the case is prepared for prosecution, with the prosecutor acting under an ongoing duty to ensure the case receives continuing review.
The disclosure process requires the police to record all relevant ‘unused material’ – information which has been gathered which is not to be used as evidence – and there is a requirement for all such material to be properly described, to be accurate and to contain enough detail for the prosecutor to then decide what must be disclosed to the defence.
If material appears to be missing or descriptions are not adequate then the prosecutor should take action to address that and a probing of the actions of police is required.
Review has highlighted how phone records were overlooked in Liam Allan case
Going back to the case of Liam Allan, a joint review of the disclosure process has now revealed the officer in the case recorded on the Police Crime Reporting Information System (CRIS) in February 2016 that no relevant data had been recovered from phone downloads.
The prosecutor did not ask the officer about this, and when the Disclosure Schedule was provided to the CPS on March 3 2017 – some nine months before the trials started – the phone download was not included.
Prosecutors failed to rectify the fact that the phone was mentioned on the CRIS Report but was not listed on the Disclosure Schedule, or to request further information from the police about the phone download.
There is no evidence that the phone download was withheld deliberately by the officer, the CPS or prosecutors, but it was still here that our legal system failed.
There was undermining material in the phone download, and though its existence had been revealed to the prosecutor on the CRIS Report, it should also have been included on the Disclosure Schedule and brought to the prosecutor’s attention.
The prosecutor should then have probed the officer about the phone download and should have asked for it to be scheduled.
Challenges over evidence gathering are increasing in the digital age
Met Commissioner Cressida Dick has highlighted how police forces are facing increasing difficulties in cases where defendants and accused are known to one another for a long period of time, with huge amounts of digital communications now to take into consideration.
And it is in this area that there appears to have been a number of cases where there has been significant failure – not deliberate perhaps, but a combination of error, a lack of knowledge and a lack of challenge to the evidence which has been investigated and disclosed.
That will be of serious concern as the review into hundreds more cases is conducted.