12:52, December 22 361 0 theguardian.com

2017-12-22 12:52:03
Liam Allan and Isaac Itiary trial collapses should lead to much-needed reform

I absolutely support Hannah Quirk over the disturbing non-disclosure in the Liam Allan case (Letters, 20 December). Every point she makes is a telling one. Mr Allan was so very nearly the victim of disclosure laws which are far from fit for purpose. There is more: as chair of the Law Society’s criminal law committee when disclosure-dampening legislation was first mooted, I led for the profession in voicing our profound anxieties. We always questioned the rationale of evidence disclosure being entrusted to a designated police officer. Leaving aside wilful and malign concealment, what of the well-documented, blinkered approach leading to the discounting of any evidence calling the police case theory into question?

Our objections then applied to all categories of cases – and continue to do so. From then until now, glaring examples of the defence having been denied game-changing and justice-enabling evidence ought to have led to a radical rethinking of our disclosure provisions long ago. Nothing has changed for the better since our earliest protestations; indeed, here we have news concerning the most recent crop of miscarriage of justice “near misses”. Very likely they constitute the mere tip of the iceberg, the very few that have come to light. Would that the Crown Prosecution Service might always emerge unblemished either, come to that. A no-holds-barred review is essential in order to rescue the very integrity of our system.

Malcolm Fowler

(Solicitor and higher court advocate), Birmingham

Lack of disclosure by the police and the prosecution is not a new problem. It was one of the key causes of the wrongful convictions of the Birmingham Six, and their successful appeal led the then Conservative government to establish the Royal Commission on Criminal Justice in 1991. In the early 1990s, the courts edged towards imposing greater disclosure obligations on the police and prosecution, but concern about sensitive material and a concerted campaign by the police and others resulted in enactment of the Criminal Procedure and Investigations Act 1996 which, while imposing disclosure obligations on the defence, largely left decisions about disclosure of material gathered in criminal investigations to the police themselves. This has never worked satisfactorily, and the problems have been exacerbated by cuts to police budgets, and to criminal legal aid.

The police have powers and resources to conduct investigations that the accused does not have. It is unfair (to the accused, but also to the police) and unrealistic to expect the police to make objective decisions about what material should be disclosed to the accused. Subject to suitable safeguards (in particular, with regards to sensitive material), the police should be placed under a clear obligation to disclose everything that they uncover in an investigation. If disclosure decisions are left to the police, more miscarriages of justice will be the result.

Ed Cape

Emeritus professor, University of the West of England

Being fair to the accused and the accuser goes to the heart of our judicial system. The current disclosure requirements are a key safeguard introduced following a string of shocking miscarriages of justice that came to light in the 90s. It is crucial that police and prosecutors meet their disclosure obligations. Their failure to do so was the reason I raised the issue in our 2015-16 annual report and wrote to the attorney and solicitor general, the DPP and National Police Chiefs’ Council urging action.

It’s encouraging to see the media spotlight land on the issue; few people involved in this area of criminal justice doubt there is a serious problem. At the CCRC – the body responsible for independently investigating alleged miscarriages of justice – we have often cited non-disclosure as the single most frequent cause of referral among the 636 cases we have so far referred for appeal. The case we referred this week on grounds of non-disclosure is a fairly typical example.

The current media attention may turn out to be the catalyst for much-needed reform. When it comes to deciding what to actually do, a sound evidence base already exists in the shape of the Making it Fair report published jointly by HM Inspectorate of Constabulary and Inspectorate of Crown Prosecution Service and in which we were directly involved. It is a sobering read. The findings have already helped focus our attention on some specific areas; it may also point the way forward more generally.

Richard Foster

Chair, Criminal Cases Review Commission

I don’t disagree with Julie Bindel about the fact that the criminal justice system repeatedly fails women (The real problem with rape trials? Too many men go free, 21 December). There is, though, another point to be made. Julie states that “Police failure to disclose relevant evidence across all types of cases … is well documented”. To the contrary, critical scrutiny of the criminal justice system and possible miscarriages of justice rarely occurs, either in the press or otherwise. The obvious question arising after the collapse of the Itiary and Allan trials (Report, 16 December) ought to be: why stop at reviewing rape cases? This was always likely to be the outcome of the various steps taken to undermine defendants’ rights within the criminal trial process. These run from the courts’ power to draw an adverse inference from a defendant’s silence (sections 34 to 37, Criminal Justice and Public Order Act 1994), to the introduction of a prosecution right to make a bad character application under the Criminal Justice Act 2003. Even the objectivity of the sentencing process is now subverted through the introduction of victim impact statements. Defence disclosure is no longer seen as a right – it is in effect at the discretion of the officer in the case and the CPS. Ostensibly this is to prevent “fishing expeditions”. What it actually does it make miscarriages of justice even more likely, both through negligence and design.

Nick Moss

London

The problem of continous failures in police disclosure of evidence to the defence (Why does police mishandling of evidence only make headlines in rape cases?, theguardian.com, 21 December) requires taking the responsibility for disclosure out of the hands of the police. The police are focused on securing a conviction: that is their job. Deciding which of the evidence they have gathered in a particular case might benefit the defence is inevitably a lower priority. The solution, surely, is to place the responsibility for disclosure in the hands of an independent examining magistrate or judge who retains overall supervision of evidence gathered for a particular case. The judge, rather than the police, would then decide what should be disclosed to the defence. In France, just such a role is performed by the juge d’instruction, who maintains the “dossier” of all case evidence. In Scotland, which for historical reasons is a little closer to France in these matters, disclosure is the responsibility of the Crown Office rather than the police directly.

John Lea

London

Julie Bindel should remember that justice must be even-handed and as fair to men as to women. In the Allan case, the police apparently did not give information to the defence of communications from the accuser to the accused saying that she enjoyed sex with him. The prosecution lawyer was annoyed because this clearly established doubt about the accusation of rape and the case should not have been brought. Allan’s name will be forever in the public domain whereas the false accuser will remain anonymous. Where is the justice in that? It is very easy for women to accuse men of rape or abuse as they remain anonymous. Is that fair? I am a supporter of rights for women but that does not mean I have to assume that they are always truthful or that all men are predatory.

Terry Smith

Newark, Nottinghamshire

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