Commentators were analysing the collapse of two rape prosecutions (Liam Allen and Isaac Itiary) both due to police failure to disclose relevant material to the defence. There were ‘competing narratives’, noted an Observer editorial. Some saw the failed cases as a sign that “the pendulum has now swung the other way in a police force once notorious for its failures to take rape allegations seriously”; and others blamed them on the impact of austerity on the justice system.
There was no question that our criminal justice system was becoming more and more stretched, the paper argued. ‘Rules around disclosure were first introduced in the 1990s after a series of high-profile miscarriages of justice, such as the wrongful convictions of the Birmingham Six,’ it argued. ‘Twenty years later, the amount of data involved in criminal cases has ballooned, thanks to the proliferation of computers, tablets and mobile phones.’
‘This makes the investigation and prosecution of criminal offences far more complex and time-consuming than ever, while the massive volume of data confronting the police in all sorts of cases makes meeting their obligations on disclosure increasingly difficult. The implications of this accelerating burden on the criminal justice system have never been properly debated; rather, they have been shoved into the “too difficult” box.’
Bill Waddington of the Criminal Law Solicitors Association said that failures over disclosure of evidence were ‘only too common’. ‘In our own recent survey, more than 98 per cent of respondents reported serious disclosure failures, and of those who responded, 90 per cent reported it as commonplace,’ he wrote.
Pointing to a Criminal Justice Joint Inspection report published last year which found that adequate disclosure took place in just 13% of cases, Waddington called it ‘a national scandal’. ‘Thousands are being denied a fair trial: innocent people are being convicted and guilty ones acquitted. Something has to change.’
‘This undisclosed material is deemed ‘unused material’ and legal aid lawyers are not paid for reading it. The Legal Aid Agency clearly views it as unimportant. Thank goodness in Liam Allan’s case that good unpaid work by defence and prosecution lawyers discovered the failings.’
Bill Waddington, CLSA
The Tory MP Nigel Evans, who was himself cleared of a strong of sexual abuse charges, called for a nationwide review of police procedures on disclosure. ‘It seems to be in too many cases that police are cherry-picking the evidence that is there in order to get a prosecution,’ the former deputy speaker told BBC Radio 5 Live. ‘That is not what the justice system is about; it should follow the evidence. Because of the failures in the system . . . quite frankly, lives have been ruined.’
YLAL’s next meeting is called What price criminal justice: is austerity causing miscarriages of justice? and will be at Hodge Jones & Allen on Wednesday 10 January, 2018 from 6:30pm. ‘The meeting will consider the impact of cuts to the CPS, police and legal aid budgets on the criminal justice system in light of the collapse of the Liam Allan and Isaac Itiary rape trials due to belated disclosure of vital exculpatory evidence.’ Claire Dissington, head of the youth department at Edward Fail Bradshaw & Waterson, and Penelope Gibbs, director of Transform Justice, will be talking. More details here
MoJ rapped over knuckles
The Ministry of Justice has become ‘the first central government department to be served with an enforcement notice by the Information Commissioner’s Office’, reported the Law Society’s Gazette. ‘It was rapped over the knuckles last month for delays in responding to ‘subject access requests’ – inquiries by individuals on data held about them,’ the Gazette reported.
The Data Protection Act 1998 requires data controllers to respond to such requests ‘without undue delay’. As of July last year, the data controller had ‘a backlog of 919 subject access requests from individuals, some of which dated back to 2012’.
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- Disclosure failures an ‘every day’ experience in the Magistrates’ court - 1st March 2018
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