Disclosure Doom – Cockup Or Conspiracy?!

Don’t say we didn’t warn you.

There are some of us legal bloggers – The Secret Barrister (@barristersecret), Barrister Blogger (@barristerblog) and Robin The Mint (@robinthemint), to name just a few – who have been boring on for Britain for some time now about the car crash state of the criminal justice system, and of disclosure failings in particular.

But time and again we’ve been accused of self-interest when we warned that miscarriages of justice were going to happen, and that innocent people were probably already serving time.

So it comes to something when the week’s lead story on all the TV news outlets involves giving the viewers a nutshells lesson in unused material.

But that’s where we are right now, after the collapse of two rape trials within the same week, in both of which the issue featured of telephone evidence and/or other undisclosed material which apparently so undermined the prosecution case in both instances that the cases were dropped like hot potatoes.

In one case, that of Liam Allen, text messages in which the complainant apparently pestered him for sex on a regular basis weren’t given to his defence team until his trial was already underway. Being as she had apparently told the police she didn’t like sex, and asserted that Mr Allen had therefore forced it upon her, these text messages weren’t terribly helpful for the Crown. (You can see prosecuting counsel in that case, Jerry Hayes, on Channel 4 here.)

In the second case, Isaac Itiary was remanded in custody for four months awaiting trial, which was due in January, before his lawyers were finally given the contents of his accuser’s mobile phone download, in which she was clearly regularly telling people that she was 19 (when in fact she was 14). Unfortunately for the prosecution in that case, the central feature of Mr Itiary’s defence was that he had stated all along that he believed the girl was over 16. (You can see a report on the case and its consequences from The Times here).

In both of those cases, if the reporting is correct (and I must stress that’s what I base my observations on, as I wasn’t instructed in either case), then the ‘case-breaking’ materials which were finally prised from the police’s hands and disclosed should have been handed over to the defence right at the start of the trial process, and to the CPS much, much earlier than that. These materials fundamentally undermined the prosecution case and the central witness, the complainant. In the history of monumental f**k-ups, on the face of it, it’s hard to think of a bigger one.

And only yesterday comes the story of an MP’s Parliamentary aide cleared of an alleged rape said to have been committed within the walls of the Palace of Westminster: the link to the story is here. I wasn’t surprised when I read in the statement given by the aide, Samuel Armstrong, after the verdict: “Were it not for the fact that crucial evidence was disclosed to my defence team just eight working days before trial…”

Now, those of you who regularly read my anguished howls of blogging rage about the state of the criminal justice system will know that I have spewed about this topic before. About 18 months ago, in fact, after stories emerged about the collapse of (you guessed it) a rape trial in Gloucester after (you guessed it) messages on the complainant’s phone came to light which appeared to (you guessed it) completely undermined her version of events. You can read that blog, Dropping A Clanger, here.

It’s about time that the media started taking notice of what those of us at the coalface have been warning all this time. If you ask me, and people have, the media have been part of the problem. But what is to be done now?

So with the help of a few like-minded souls, I’ve compiled a list of where I suggest the system has gone wrong, and what could and should be done about it.

BOOM! 💥
The police approach to investigations in allegations involving anything sexual has become totally arse about face. The presumption of innocence which should apply to every criminal case, no matter what the alleged offence, seems to have gone out of the window, particularly where sex cases are concerned.

BOOM! 💥
This issue was identified in the report of Sir Richard Henriques which was published a year ago – see link here – in which the former senior judge highlighted that, in an apparent eagerness to increase the number of rape convictions under pressure from politicians and the media, the police appeared to have fallen into the trap of automatically treating all ‘complainants’ as ‘victims’ and repeating the mantra that ‘all victims must be believed’. Obviously this pre-supposes that all complaints are true and suggests that investigations should be conducted on this basis. This is plainly wrong and will undoubtedly have infected the mindset of officers investigating such allegations.

BOOM! 💥
The police have to stop adhering to the ‘we believe you’ mantra: they have no business usurping the function of the jury to decide whether a complainant is to be believed or not, just as I do not have to believe what anyone I defend tells me. This is not my role. And it’s not just me who thinks this. An ex-DPP has been publicly saying this today too: see the link here.

BOOM! 💥
The recommendations of the Henriques report appear to have fallen by the wayside, because senior police officers and the College of Policing didn’t seem to like its conclusions. The recommendations should be brought into effect as soon as possible and the police told to point themselves in the right direction.

BOOM! 💥
If the police have jettisoned all objectivity in such investigations, then the concept needs to be reintroduced and quickly. From what those of us working at the coalface see regularly, there are some (not all) officers dealing with sexual allegations in particular who lose all perspective and get too personally involved with the case and the complainants. Recently, as verdicts were returned in a multi-complainant sex case in which I defended, the officer in the case burst into tears in front of the jury. Such incidents suggest that some police involved in these cases might be all too keen to ‘sit on’ evidence which undermined the complainants with whom they had built up such a personal relationship.

BOOM! 💥
All parties to the prosecution – police, lawyers and witnesses – need to be clear that the criminal trial process is not there to ‘give closure’ or act as some form of therapy for someone making an allegation. Such a position may or may not be a by-product of the proceedings, but that is not their purpose. The purpose of a criminal trial process is to determine the guilt or otherwise of the accused person, and nothing more.

BOOM! 💥
There is far too much ‘policy’ and ‘guidance’ in the criminal justice system these days, and not enough adherence to statute. Policymakers – and politicians – need to keep their noses out and let us get on with it.

BOOM! 💥
Police training in disclosure is plainly inadequate. Further, it doesn’t appear to be carried out by trained lawyers but by… police officers. And probably police officers who haven’t attended, or given evidence in, a trial in years. It appears that disclosure training in the Met, for example, involves being trained to include as few items as possible on the unused material schedule, which for the uninitiated means the list of items which the police have gathered or generated during the course of an investigation but don’t intend to rely on as part of the Crown’s case. Police officers are being trained that most material is ‘irrelevant’ and need not be placed on the schedule. WRONG!

BOOM! 💥
If the police don’t place and describe items on the unused material schedule, before passing the schedule to the CPS for the reviewing lawyer to sign off, the lawyer may not know about the existence of materials which ought to be disclosed to the defence right from the start. I strongly suspect this may have happened in at least one of the cases reported this week.

BOOM! 💥
The very fact that the police are the ones deciding what is ‘relevant’ and what is ‘irrelevant’ material is totally inappropriate. At the very least a CPS lawyer should be examining the material to make that decision. Best case scenario is that it should be prosecuting counsel (but of course, the CPS probably won’t do that, because then they would have to pay counsel to do this).

BOOM! 💥
The way the police and CPS deal with evidence from mobile phones and computers – which often plays a crucial role in sexual allegations – is lamentable. Whether it is cock-up or conspiracy, such evidence causes more problems in trials than any other type of evidence. It’s pretty basic, but if the complainant’s phone download or phone billing data have been obtained, some officer somewhere (hopefully the officer who obtained the download or data) should be exhibiting these in a witness statement – whether that statement is used or unused material. All too often, this simply doesn’t happen. These days, both the police and CPS seem to ignore basic continuity issues with impunity, which is how both cock-ups and conspiracies start.

BOOM! 💥
Part of the problem about mobile phone evidence relates to the CPS obsession with not serving e.g. phone downloads as used evidence, in case this means that they will have to pay prosecuting counsel a larger fee due to the larger amount of evidence they’re going to have to deal with. This obsession also seems to extend to concerns about how much defence counsel might also get paid for such used materials – though I’ve not yet heard any valid explanation from anyone connected to the CPS about why what defence counsel are paid has anything at all to do with them, since it comes out of a completely different budget.

BOOM! 💥
The police and CPS need to understand this: IF YOU WANT TO RELY AS PART OF YOUR CASE ON A FEW TEXT MESSAGES WHICH YOU CONSIDER SUPPORT YOUR CASE, YOU CAN’T JUST PUT THESE FEW SNIPPETS INTO A POLICE OFFICER’S WITNESS STATEMENT AND EXPECT THE DEFENCE TO AGREE THAT THIS IS ADMISSIBLE. We won’t, so stop doing it. If you want to rely on such messages, you have to serve the whole document/download for the proper context to be clear. You wouldn’t expect to get away with serving 3 lines out of a 4 page witness statement, simply because those 3 lines are the only ones you want to rely on. Basic rules of evidence do still apply!

BOOM! 💥
It’s not good enough for the DPP to be making statements to the press after the cases which we’ve seen this week, describing the situation as “regrettable”. I’d say that was the understatement of this millennium, when we have a situation where two cases in a week have had to be dropped, where one accused man was on bail with these very serious allegations hanging over him for two years before being cleared, and another wrongly spent five months remanded in custody. I hope they both sue. And now it appears these cases may well be the tip of a very large iceberg towards which the police and CPS are inexorably sailing.

BOOM! 💥
If it transpires that this situation has come to pass due to budget cuts to either the CPS or the police or both – e.g., if the investigating officer or the CPS lawyer had unfeasibly large caseloads or inadequate supervision, so as to prevent them from properly dealing with evidence and disclosure issues – then the leaders of the CPS and police need to start publicly spelling this out, loudly, rather than trying to play down the impact of the massive havoc the Treasury’s cuts have wreaked across all parts of the criminal justice system.

BOOM! 💥
If there are any schemes within either the police or CPS in which either personal bonuses or increased departmental funding are payable as a result of an increased conviction rate (and I have no idea whether this is the case or not), such perverse incentives must stop.

Above: The 2017 HMCPSI report published in July 2017 identified significant failings

BOOM! 💥
The CPS also need to get away from the attitude – described by another well-known legal blogger, View From The North (@jaimerh354) – that “it’s good to be hard on disclosure and withholding material is a badge of honour”. All of us who defend encounter this attitude on a daily basis in all types of cases, and there is no doubt that it has contributed to highly relevant material being withheld from the defence on numerous occasions.

BOOM! 💥
The courts need to stop being complicit in disclosure failings. As Mary Aspinall-Miles, the barrister representing Isaac Itiary, pointed out in her own blog this week here, far too often there is not enough time for either the police or the CPS to carry out their respective functions properly. This goes back to what I said above, generally speaking. However, this is no excuse for judges to allow the CPS to get away with routinely failing to comply with court directions. Mary told me: “We chased service of papers and disclosure throughout. This was a case in which mobile phones were central to the case from the start. The defence case statement was served at the end of November in accordance with the court’s direction, not on the 15th December as reported by some media sources. When the police may have received it is another matter, but it was uploaded to the digital case file by the time and date of the court’s direction. In any event, we identified the trial issues at the PTPH in September, as we must. Disclosure does not start and stop with the service of the defence statement.” If there were proper costs sanctions for failing to comply with court orders – as there are in civil cases – I’d be willing to bet that the police and CPS performance would rapidly improve.

BOOM! 💥
We need to get away from the current attitude of too many judges that when defence lawyers raise the issue of disclosure failings on day 1 of a trial, the trial must be railroaded on at all costs even where disclosure concerns remain. Far too often we’re regaled with the phrase “we are where we are” and just ordered to proceed. What is known as third party disclosure – materials which may be held by social services, schools, or in medical files, for example – is also a particular problem. The cases this week need to be a wake-up call for all those on the bench who are far too keen on box-ticking and stats and not keen enough on applying the proper rules of evidence and procedure.

One further important consideration in this mess is the chaos which has been caused to the proper timetabling of cases and disclosure by the introduction of the Better Case Management scheme and the invention of the Pressure To Plead Hearing. Again, I have blogged about the evils of this system before, and I have no doubt that the new system has added to the problems with disclosure which are now coming  home to roost.

Previously, under the old PCMH scheme, an accused person did not have to enter a plea in the Crown Court until the prosecution had provided a bundle which contained both the evidence on which they proposed to rely should a trial take place, plus a schedule of unused material and any unused material which was disclosable at that stage (i.e., because it either undermined the prosecution case and/or could assist the defence case). So the police and CPS had to get their act together by that stage of the proceedings.

Now, under the seriously discredited PTPH scheme, all the CPS technically have to do before a plea is expected to be entered, even on very serious cases, is upload a case summary – usually written by the officer who’s been investigating the allegations, so you can see the risk of important materials being missed out or misrepresented there – to the digital case file and NOTHING ELSE. Usually there is more than this, but almost never is any unused material schedule or disclosure of such materials provided before the defendant has to enter a plea.

This scheme was almost certainly set up so as to ensure that the police and CPS didn’t have to do much, if any, work between charge and plea. Though it’s hard to see how difficult it would be to upload some statements, exhibits and other information which must already be in existence onto a digital file, but there you go. This is where the disclosure failings start, in my view. No one on the prosecution side seems to be looking at the disclosure position before any pleas are entered any more, and the defence can’t if they haven’t even seen a schedule of what materials have been gathered but aren’t relied on. That’s where the process starts going downhill.

The news about disclosure is not, in fact, news to us. Very serious failings in disclosure procedure were identified by Her Majesty’s Crown Prosecution Service Inspectorate in their report published in July 2017. A link to the report is here, and it made a number of important recommendations – none of which have been acted on as yet. So neither the police nor the CPS can say they weren’t warned.

Meantime, thanks to their lawyers and an independent prosecution counsel, at least two – almost certainly more – innocent men won’t have to spend this Christmas and quite a few future Christmases behind bars. The disclosure bomb has gone off, and we’re all going to have to deal with the fallout.