A piece in today’s Times:
Police will have to instruct forensic experts to assess text, emails and social media evidence in rape cases and other serious crimes, the government’s top lawyer has proposed.
Under plans released yesterday by Suella Braverman, QC, the attorney-general, rape suspects will be able to press the police early in investigations to search for digital evidence that could exonerate them.
The move from Ms Braverman — who took over the role of senior law officer a fortnight ago in Boris Johnson’s reshuffle — is in response to concerns that problems with evidence disclosure have created a growing risk of miscarriages of justice.
Ms Braverman launched the proposals as part of a consultation with the police and defence lawyers.
However, a leading criminal lawyer warned against “any shifting of the burden of work for unearthing digital evidence from the prosecution to the defence”.
In her proposal, the attorney-general acknowledged that a 2018 review — prompted by several high-profile cases where prosecutors failed to pass helpful evidence to defence teams — “highlighted the need for leadership and culture change throughout the criminal justice system”.
The starkest example of botched disclosure came in 2017, when the trial of Liam Allan collapsed because police had failed to reveal evidence proving his innocence.
The student had been accused of rape but his lawyers were repeatedly refused access to records from the alleged victim’s phone because police insisted that there was nothing of interest.
When a new prosecution barrister took over the case the day before the start of the trial, he ordered police to hand over any telephone records.
It was revealed that the police had a computer disk containing copies of 40,000 messages, many of which showed that the complainant continued to pester Mr Allan for “casual sex”.
Under Ms Braverman’s reforms, when interviewing suspects, police will be required to ask whether that person is aware of digital material that has a bearing on the allegation. Investigators must also agree word searches of digital material that the suspect would like. [J4MB: Excellent. This should have been standard practice for years.]
Ms Braverman’s proposal recognises the growing amount of digital evidence that detectives are forced to contend with when investigating serious crime.
Lawyers gave the attorney-general’s proposals a qualified welcome.
Caroline Goodwin, QC, chairwoman of the Criminal Bar Association, said Ms Braverman’s consultation was “a full and frank reassessment of the disclosure process”.
However, Ms Goodwin said that the government must not lose sight “of the reality that a catalogue of failings, as testified by numerous independent official reports, has resulted from years of underinvestment resulting in a succession of human errors through incompetency rather than any dysfunction in the existing disclosure system”. [J4MB: Rubbish. There was a culture of convicting men regardless of the existence of evidence which would have exonerated them.]
Ms Goodwin also raised concerns over resources. “We would be concerned if any shifting of the burden of work for unearthing digital evidence from the prosecution to the defence at the earliest stage of an investigation,” she said. [J4MB: WHY would she be concerned?]
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