Times caption: Liam Allan was put on trial on 12 charges of sexual violence because the police failed to hand over text messages that would have exonerated him
A piece by Frances Gibb, Legal Editor, in today’s Times, emphases ours:
The scale of the failure by police and prosecutors to disclose vital evidence in criminal cases is exposed today in documents showing that such behaviour is routine and deliberate.
A dossier seen by The Times reveals a commonly held view that the defence is not entitled to see all the evidence. It discloses the tactics used to stop it being handed over, with officers in at least one force apparently trained in how to avoid making available material that might undermine their case.
The file draws on the reports of 14 focus groups with the police, and others with prosecutors and judges, as well as a survey of prosecutors.
The findings come after this newspaper reported on a series of rape cases that collapsed at the eleventh hour when evidence was passed to defence lawyers. The comments in the dossier include one prosecutor saying: “In even quite serious cases, officers have admitted to deliberately withholding sensitive material from us and they frequently approach us only a week before trial. Officers are reluctant to investigate a defence or take statements that might assist the defence or undermine our case.”
Among the comments from police focus groups was: “If you don’t want the defence to see it, then [evidence] goes on the MG6D” — a reference to the list of sensitive unused material to which the defence does not have access. In another focus group, an inspector noted that police “have been trained to put items on there that they do not want disclosed to the defence”. This tactic was confirmed by prosecutors. One recorded comment was that “officers put undermining material on the MG6D list to hide”.
In one report on focus groups with judges, the inspectors note a judge saying: “There seems to be an idea that the defence is not entitled to see things but where the defence press matters, this yields results.”
Prosecutors are also at fault. Sometimes this is because of what one called a “hugely excessive and complex caseload, insufficient time to do the job, poor-quality and slow digital systems, poor-quality investigation by police [and] wrong prioritising of objectives by the organisation”.
The dossier was obtained by the Centre for Criminal Appeals, a charity, under a freedom of information request to the Crown Prosecution Service (CPS) Inspectorate and the Inspectorate of Constabulary, which collated the unpublished comments when preparing a joint report on disclosure of evidence last year.
It makes clear that the failure to hand over evidence that may undermine the prosecution case is often deliberate and comes at a time when the criminal justice system is under scrutiny. Last year The Times revealed that Liam Allan, a 22-year-old student, spent almost two years on bail and was put on trial on 12 charges of sexual violence because the police failed to hand over text messages from the alleged victim that would have exonerated him. His lawyer secured the messages and he was cleared. Other similar cases subsequently came to light.
Alison Saunders, the director of public prosecutions, and Jeremy Wright, the attorney-general, began inquiries into disclosure failings after the trials failed. It emerged yesterday that Ms Saunders’s contract as DPP was not to be renewed — which she said was through her own choice.
Last week the CPS and police inspectors gave evidence to the Commons justice select committee. Kevin McGinty, chief inspector of the CPS, said disclosure failings were the single most frequent cause in the steady stream of miscarriages of justice. He described a culture in which disclosure was seen not as part of an investigation but “more of an administrative exercise”.
The Centre for Criminal Appeals has submitted evidence on disclosure to the justice select committee along with the Cardiff Law School Innocence Project, urging the creation of an independent agency to deal with the issue.
The National Police Chiefs’ Council lead for criminal justice, Chief Constable Nick Ephgrave, said: “National training and guidance on disclosure does not in any way endorse or encourage the unnecessary withholding of any material relevant to a case. It is, however, right that in cases involving sensitive unused material, such as details of an informant, that this is not automatically shared with the defence. This is entirely in line with legislation and national guidelines and is well understood by defence and prosecution alike.
“At the same time, we know that investigators need more effective, consistent training and advice so they have absolute clarity about the disclosure process – and this is central to the improvement plan we have put into action with the Crown Prosecution Service and College of Policing.”
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