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Rape disclosure failings are no surprise — the criminal justice system is crashing down around us

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It’s a crisis

The media has not been kind to the Crown Prosecution Service (CPS) recently.

Several collapsed cases have made headlines, these falling apart due to disclosure failings. Disclosure is the duty that the CPS and police have to fully share all material that weakens the prosecution’s case or strengthens that of the defence. Disclosure is a vital element of a fair trial, which every accused person is entitled to under article 6 of the European Convention on Human Rights.

Sensationalising isolated cases encourages public outrage and reduces confidence in our criminal justice system. Using phrases like the ‘non-disclosure scandal’ is unhelpful when there has been no evidence of dishonesty or malpractice. However, these cases are representative of the systemic problems the criminal justice system faces, and shining a spotlight on them is more important than ever. A quick run-through of the cases:

Liam Allan case

Liam Allan, a 22-year-old criminology student, faced 12 counts of rape and sexual assault. After two years waiting, his trial was dropped when it emerged evidence on a computer disc — which police had looked through — showed messages from the alleged victim pestering him for “casual sex”. Allan said he spent two years living in fear. His lawyer has now said that Allan will probably seek compensation.

Isaac Itiary case

Just days after the Allan case collapsed, a 25-year-old was released from prison after the emergence of evidence which strongly undermined the prosecution’s case. Isaac Itiary had been arrested for having sex with a child, before text messages revealed the alleged victim had lied about her age and pretended to be 19. He had spent four months in prison.

Oliver Mears case

Oliver Mears, a 19-year-old student, was arrested for rape in 2015. He was also on bail for two whole years before charges were brought. The case was dropped when a different lawyer reviewed a diary which provided material that supported Mears’ story. Mears’ lawyers had asked for the diary since October last year. Judge Jonathan Black said that there seemed to have been “unnecessary delays in investigating… leading to what seems to be a completely unnecessary last-minute decision” by the CPS.

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Surrey police recognised that there were “flaws” in the investigation, that the investigation was “not expedient” and that the “investigator did not examine the victim’s digital media during the initial stages of the investigation or follow… a reasonable line of enquiry”.

Petruta-Cristina Bosoanca case

The case of Petruta-Cristina Bosoanca, though instinctively different to the three cases above, also collapsed after the CPS sat on evidence. Bosoanca was charged with people trafficking and controlling prostitution charges. She was held in custody for 13 months before her trial collapsed. Tragically, she gave birth in prison during this time.

Relevant evidence was known to the police from January 2017 but was not disclosed until December 2017. According to defence lawyers, it would have taken a mere four days’ work to find the evidence that would have undermined the prosecution’s case.

Bosoanca called the CPS “incompetent” and hopes that someone will be punished. The judge in the case said there had been “wholesale failures” and that the court had seemingly been “significantly misled” by the CPS as to the strength of the evidence. A senior prosecutor apologised to the court, admitting that the CPS’s handling of the case had “fallen below standard”. The judge referred the matter to the Director of Public Prosecutions (DPP) and it is being reviewed.

Why did these cases collapse?

In each of these examples, disclosure failings were the reason for the cases collapsing. But why is this happening? Of course, the obvious answer is a lack of resources. Andrew Walker QC said it is a “classic case of money not being put into the system, and that absence is leading potentially to trials not being fair and to miscarriages of justice.”

Angela Rafferty QC, who represents criminal barristers in England and Wales as the chair of the Criminal Bar Association, said that CPS funding has “nosedived” and so have staff numbers in the CPS and police. She said it was “not just disclosure that is failing — the entire system is in crisis” and that “criminal justice is on its way to a dystopian disaster”.

However, the Attorney General, Jeremy Wright QC, said the failures were “primarily the result of police and prosecutor failures”. He said:

“The failings in these cases have not been because there wasn’t a police officer and there wasn’t a prosecutor, it’s because they didn’t appear to be applying the regime they are expected to apply in conducting disclosure properly.”

The FDA National Officer for the CPS wrote to Wright in response, pointing out that the number of prosecutors in the CPS has fallen by 30% since 2010, and that the nature of information the CPS have to deal with has transformed over the past 20 years. This transformation refers to the increasing role of evidence found in digital technology.

The “vastly increasing use of social media” has been identified as posing a real challenge for the police and CPS, as a single smartphone could contain the equivalent of up to 30,000 pages of information. In the Allan case, the evidence was on a computer disc. There were more than 57,000 lines of message data. In the Bosoanca case, it was social media material that was not disclosed. It seems that the CPS and police lack the resources to properly examine the huge amounts of digitally-stored information in cases.

How bad is it?

The problem may go much deeper than resources. Nick Ephgrave, Chief Constable of Surrey police, the force involved in the Mears case, was refreshingly honest in admitting that there is a “cultural problem” with disclosure. He said it is “too often seen by police officers as a thing to be done at the end of an investigation, becoming subsequent to, rather than integral to, the investigation”.

The DPP, Alison Saunders, has also been accused of following a “highly political agenda” by prioritising her goal of raising the pitiful rate of rape convictions. A CPS spokesman pointed out that the CPS’s conviction rate was 83%, and that “the number of unsuccessful outcomes due to disclosure issues represents 0.15% of these prosecutions”. (The BBC found from a freedom of information request that charges against 916 people had been dropped in 2016-17 due to disclosure failures, which was a rise of 70% from the 537 in 2014-15. That’s almost 1,000 people who could have faced miscarriages of justice.) However, it was conceded that there are still “systemic disclosure issues”.

This is a very troubling thought, but it highlights the tension that the police and CPS face in having to hand over information that will undermine their case. It’s sort of like trying to get yourself elected as an MP but also telling people the reasons why they might not want to elect you.

The situation is bad enough that the Commons’ Justice Select Committee has launched an inquiry into disclosure problems and the role of the CPS. The CPS, the National Police Chiefs’ Council and the College of Policing have also launched a ‘national disclosure improvement plan’ to improve training, develop specialist disclosure experts in every police force, and provide all multimedia evidence to the defence digitally. This is a step in the right direction, but seems like plugging a hole in a sinking ship.

These disclosure issues are part of a bigger picture — a criminal justice system which is literally crashing down around us. I know that what I’m saying will not surprise you; we all know how bad it is. This isn’t some abstract area of legal process. Failing to disclose key material deprives people of the liberty and can ruin their lives. Judge Ticehurst, who sat on yet another recent sex offence trial that broke down, is right: people will lose all faith in the criminal justice system if this continues.

Fraser Collingham is a University of Nottingham law graduate and future trainee.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

18 Comments

Not Amused

It is a wholly unacceptable excuse for anyone, let alone anyone who serves the public, to fail in their job and to then say:

“I only failed because you did not give me enough money”

The problems in rape cases are a combination of factors – incompetence – deliberate misuse of position – all of it motivated by an *extreme* politically motivated agenda to secure rape convictions at all costs.

Where there have been cuts those cuts have fallen on the Defence. So in reality, far from being a cause of failing standards at the CPS, the cuts that there have been are much more likely to mean we have only yet uncovered the tip of this corrupt iceberg.

Because without properly funded Defences, there is no one there to uncover the fact the prosecution authorities are corrupt in the first place.

Anonymous

They do not day they failed because they did not have enough money in their own pocket. They point is that chronic underfunding and loss of staff means that the remainder have an unmanageable workload, probably coupled with a lack of training.

gary

The problem sits inside the Police & the CPS
Both face targets in respect of prosecutions and particularly with the liberal emphasis on bringing more rape cases to court, with an-built presumotion of guilt, there is no incentive for prosecutors to look too hard across social media platforms to locate evidentiary material that would be helpful to the defence.
Perhaps what is required is a more straightforward system of disclosure whereby all materials available to the State are made simultaneously available to the defence – and in this sense perhaps blockchain technologies can aid effcient data sharing

Anonymous

At least one of the reasons apparently given in the letter to Wright from the National Officer will not do.

If there are phone and other e-records that take time to go through these should be made available to the Defence. It may be that even diligent disclosure officers will overlook something – the timings within a sequence of messages, potential location evidence, details of language etc.

It’s the withholding that’s so dangerous, not the volume of evidence.

Concerned lady

Anonymous @11:03 – handing everything over to defence is not the answer. If I was raped the thought of my entire phone downloads being handed over to my rapist and his legal team would be enough to stop me going to the police.

Not because there would be anything undermining on there, but there is really private material, some of it deeply intimate and embarrassing – as I suspect a lot of people have on their phones. For example, I am on a diet so take photos of myself on my phone in my knickers every week to document my weight loss. I am fairly overweight. I could not bear standing in a court knowing that both counsel and their solicitors, paralegals and the defendant had all seen those photographs – they would not be relevant and it would be a humiliating invasion of privacy.

It cannot be right that complainants are put through a second ordeal of having their personal lives raked over by any more people than is strictly necessary when it is absolutely not relevant to the case. Of course the disclosure crisis needs sorting out but the police and CPS need more resources and training – end of.

Anonymous

That’s no answer at all, let alone “end of”. You can’t send a man to prison without his defence team seeing potentially exculpatory evidence because of embarrassment about your selfies. FFS.

BTW, evidence has to be relevant to be admissible. The Defence are not allowed to hand out prints of you in your undercrackers for the hell of it. So you’re left with an objection that the lawyers have seen what’s on your phone. Big fucking deal.

And V’s sexual history is off limits other than in rare cases.

Concerned lady

You are confusing the disclosure test with the admissibility test. I am talking about disclosing the entire contents of my phone. That’s why I talk about counsel, solicitors, paralegals and defendants having seen my private material – not the jury.

If not relevant – like my “selfies” – it is not disclosable (let alone admissible). They would in no way undermine/assist. You are proposing that my whole phone download is handed over to to the defence. That material should not be – and if the police/CPS had sufficient resources to be doing thorough disclosure reviews themselves it should not be. That’s my point. I’m not even talking about admissibility in court.

I hope to God you’re not a criminal lawyer because you clearly don’t know what you’re talking about.

I hope to God that if you are a criminal lawyer you don’t get anywhere near vulnerable witnesses/defendants. Because a response of “big fucking deal” to the thought of a rape complainant having that sort of material distributed among lawyers and the defendant unnecessarily shows a total lack of understanding about the difficult issues we deal with every day.

Anonymous

TBH I assumed you were a student confused over disclosure and admission of evidence, because your post was so off the point.

As for the rest, you clearly haven’t met any criminal defence lawyers.

Red Pill Normie

What is it with this Victorian obsession with protecting the modesty of women? With having rape complainants shielded from simple questions in court? I thought we were supposed to be living in a time of “equality”. Grow some balls and get over it. A little mild discomfort is not the end of the world. The rights of defendants in rape cases don’t end where the feelings of rape complainants (and those of their pimps in the women’s rights NGOs) begin.

Anonymous

I’m sorry, it is far from “end of…” You are empathising with a genuine victim, but if the boot were on the other foot and you were the falsely accused, you would want access to all of the material which has proved such people innocent in recent months. It is not just a matter of money. It is simply unfair that the people who are trying to prosecute the case, the CPS, should be the ones to decide what to disclose or not.

Nile

Perhaps if the police spent less time and money dancing at homosexual parades and spray painting their cars with rainbow colours these scandals wouldn’t have occurred.

The waste in the public sector is a joke.

The goddess of diversity and offence

BLASPHEMER!!!!

HE MUST BE SACRIFICED!!!

GET HIS BODY!!!!

Ciaran Goggins

Might I suggest that anonymity be regranted to rape trial defendants? That Alison Saunders be fired and arrested? That we all find out who “Nick” in Op Midland is?

Red Pill Normie

It seems like the sage voices at Women Against Rape and other motley quangos tasked with promoting the feminist cause have gone all quiet. It’s a pity. I was looking forward to much merriment at reading opinion pieces in the Guardian telling me that demands for disclosure are an expression of the same Male Privilege that drove those men to rape and that even men who are innocent but get put away as rapists because the prosecution didn’t disclose evidence “can learn a lot” from the experience

The goddess of diversity and offence

All men are potential rapists.

Fact.

Ciaran Goggins

Dead men don’t rape (dead wimmin don’t make false rape allegations)

Concerned Proofreader

You write:

“Relevant evidence was known to the police from January 2017 but was not disclosed until December 2017.”

One of those dates must logically be incorrect.

Anonymous

Who is this Not Amused moron? “…. because without properly funded Defences, there is no one there to uncover the fact the prosecution authorities are corrupt in the first place”??

Agreed that criminal defence work requires adequate funding, and we don’t have that, but to start circulating ridiculous conspiracy theories about corrupt prosecuting authorities with no supporting evidence is profoundly unhelpful and shows no understanding of how the disclosure process operates.

The CPS has significant resource issues, those Defence lawyers who appear regularly against Crown Prosecutors in the Mags and Crown Court will recognize the picture of CPS staff struggling with huge caseloads and doing their often inadequate best to present cases fairly but being defeated by the caseload and outstanding issues which result in multiple delays. I don’t recognize the picture of corrupt lawyers trying to obtain a conviction at any cost and willfully failing to disclose information which is likely to assist the Defence. Does Not Amused really think they set about to convict those they know to be innocent?

The recent failure have all arisen because the Police failed to identify, until the start of the trial, texts and emails in their possession which would have undermined the case for the Prosecution. That may be a training or a resources issue, or the police Disclosure Officer may be falsely signing a certificate that all relevant material has been examined and, where required, disclosed to the Prosecutor and the Defence.
To attribute this failure to “corrupt prosecuting authorities” is stupid and baseless.

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