It must be my age. I am, after all, romping towards my dotage. Or maybe it’s that I have always been A Stroppy Cow, only too ready to start a fight with myself in a phone box, let alone with anyone else.
Is that why I work myself into a froth on a daily basis when I read story after story in the press which makes it all too obvious that the criminal justice system is, well, in a state of meltdown? This week is no different.
There was an important piece in the news this week, sandwiched between all the fluff about Cameron’s tax affairs and who fathered the Archbishop of Canterbury. Unless, like me, you’re borderline obsessive about the workings of justice, you might have missed it. But I’d venture to suggest it’s a significant announcement that bears closer scrutiny than most of the mainstream news outlets have afforded it so far.
The story was featured by the BBC, with the headline that the number of dropped Crown Court prosecutions had reached its highest level for five years: see the full story here. And as if by magic, on the very same day the Guardian and other news outlets were featuring the sorry saga of four young students who had been accused of rape, and against whom the case had been very publicly dropped just as their trial was about to start. The full story is here (with a further update here), and makes extremely concerning reading, as someone somewhere on the Prosecution side clearly dropped a major clanger.
Those of us bewigged serfs working at the coalface can tell you all sorts of horror stories about cases we’ve been involved in where trials haven’t gone ahead as the result of a last minute volte face by the Crown. There are many different reasons for this. Often, it’s as simple as complainants or witnesses not turning up. In other cases, it’s something worse.
I don’t, of course, know anything more than has been widely reported about the Gloucester case. But if even half of the reporting is accurate, evidence which clearly had the potential to undermine the Crown’s case against the four accused men was, somehow, sat on by the police who dealt with the investigation. This seems to have included text messages from the complainant’s own mobile phone which appeared to suggest that she may have consented to a group sex encounter – when she was now suggesting that she had been raped – and details of ‘questionable’ evidence she had given as a witness in a separate case involving, yes, a group sex encounter.
On the face of things, such evidence would be prima facie disclosable to the Defence at an early stage of the case. Under the Criminal Procedure & Investigations Act 1996 s3, the Prosecutor must “disclose to the accused any Prosecution material which has not been previously disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused”. S3 is supposed to kick in at the same time that the main papers, on which the Prosecution actually base their case, are served – before any pleas are even entered. From the newspaper descriptions of the materials at the centre of the problems which arose in that case, if the materials which were at the centre of the ruckus in this case were remotely as described, then the Defence should have had them months ago.
What is perhaps most worrying about the reports, however, is the suggestion that neither the CPS nor Prosecution counsel had been told about the materials, let alone seen them. Whether this is cock-up or conspiracy remains to be seen: the trial judge has apparently demanded a full explanation as to how this came to happen.
We’ve all been there, of course, though not always in a case which has made front page headlines in the Daily Mail. This one made me think back to the time, a few years ago, when I was given a Prosecution brief in a robbery trial as an overnight return. As usual, one of the things I noticed when gutting the brief for the first time was that the unused material seemed sparse. For some reason, the CPS often don’t seem to think it’s important for trial counsel to be sent the unused material, but there you go.
Reading the papers, it struck me that if I’d been defending, I’d have been thinking that the case had the smell of ‘inside job’ all over it. I duly turned up to court the following day and met the chief Prosecution witness, whose evidence was to be that he’d locked up his business one night, then been bundled into a car by a masked man on the way home, taken back to the premises, made to unlock them and open the tills, which were then emptied. The smell was becoming stronger.
Nonetheless, this was my witness and we had a judge who was impatient to get on with the trial, no doubt so that the court’s stats for the MOJ didn’t look bad. However, I insisted on some time to go through the substantial amount of unused material on the CPS file (which had plainly not made its way to my brief). Almost straight away I discovered an earlier statement from the witness which described being able to partially see through the mask of the alleged robber, to the extent that he could tell he was a white man. The Defendant in the dock was visibly Asian.
Obviously I had to disclose this to the Defence immediately. I explained to the judge what had happened and asked for more time to ensure I had complied with my disclosure duties. The Crown’s case was based entirely on DNA evidence around the neck of an opened bottle found within the relevant premises. The witness had mentioned nothing about the intruder having a drink in either of his witness statements or in his evidence-in-chief, which had already been given.
Without going into too much detail, I eventually discovered other material which not only positively undermined the Crown’s case but named the individuals said to be involved. None of them was the Defendant.
The result: jury discharged, trial abandoned, case subsequently dropped. I like to think I averted a potential miscarriage of justice there, but it was a bit hairy at the time.
Now I’m not saying that sort of massive disclosure failure is behind every case which gets dropped when it comes to trial, though I’d be willing to bet there are more than there used to be. I’ve not yet met a police officer who actually understands the CPIA and the rules about disclosure, and that’s a problem when they have control over it. The CPS or counsel can only assess material if they’re actually made aware of it, after all.
And sometimes the explanation for a case getting dropped might be because witnesses or complainants simply don’t show up on the day of trial. I’ve lost count of the number of times that’s happened in cases I’ve dealt with. Sometimes it turns out to have been an ‘administrative error’ and the Witness Care Unit have failed to warn the witness of what day they need to attend court or where. Sometimes it appears that the complainant simply doesn’t fancy it or the witnesses can’t be arsed. Without knowing more about the details behind the figures in the BBC report, it’s impossible to properly assess why there’s been a five-fold increase in cases getting dropped.
On the day the news came out, Nasir Afzal, the ex-Chief Crown Prosecutor of the North, was interviewed on the Today programme: hopefully there is still a link to the broadcast here, with Afzal appearing from 08:20hrs.
The programme had featured a man who had been accused of an offence involving a child, with proceedings going on for 15-16 months before the case was eventually dropped after he produced what sounded like documentary evidence which undermined the credibility of the allegation. The suggestion was that, particularly in sex cases or allegations in any way involving children, once an allegation is made the police simply don’t investigate any other lines of enquiry and ignore information which may undermine the complainant.
Afzal tried to argue that the pendulum had not swung too far in favour of complainants and away from the accused. We do, after all, still in theory have a system in which you are innocent until proven guilty. I say ‘in theory’ because these days – as those of us who defend in sex cases know only too well, for example – in practice you have to be able to put a positive case to stand any chance of winning it. But Afzal did reiterate that the Prosecution (and that includes both CPS and police) must look at allegations in the cold light of day, and carefully consider issues of credibility.
From the view those of us at the coalface have, unfortunately all too often that objectivity and perspective simply doesn’t seem to be applied. And that’s where you get the position where potentially important evidence gets sat on or disregarded – because it doesn’t fit with the case. Or simply because no one gets told about it until it’s almost too late. Fortunately, in the Gloucester case, it came to light just in time.
Cock-up or conspiracy, it’s hard to know which when a case gets dropped just before trial. Either way, it’s a very poor show for justice.