Wrongful convictions are a terrible risk in our frighteningly imperfect justicesystem.

There is a somewhat distasteful expression that prosecuting barristers occasionally use after a jury has convicted: “I potted him,” they will say to anyone who happens to be listening, usually with a faintly repellent smugness.

There is more to prosecuting than potting a defendant as though he were a celluloid ball, important public service though that can often be. Prosecutors also have a critical role in protecting the innocent. A good prosecutor should never take an unfair point, should never try to adduce clearly inadmissible evidence and above all should always disclose evidence that undermines their own case or supports that of the defence. The police too are under a duty to follow all reasonable lines of inquiry and to reveal what they discover to the prosecutor even if it undermines a case they thought they were building against a guilty man.

It is the failure to investigate important lines of inquiry at all, and the failure to disclose “undermining” evidence discovered when such investigations have been carried out that has led to a series of highly publicised cases collapsing in the last few weeks. Most of these have been rape cases in which vital evidence from phones and social media was either not properly investigated or not properly disclosed to the defence until practically the start, or even after the start of the trial.

As a result, the Director of Public Prosecutions, Alison Saunders, has come in for widespread criticism and there is a real question over whether she will hang onto her job. She was not helped by the Attorney General’s stinging comments about the CPS’s handling of the prosecutions over the weekend. Ms Saunders herself may not bear any personal responsibility for the disclosure failures that led to the various debacles but she must take ultimate responsibility for a Prosecution Service which seems to be careering from one crisis to another.

Last week she announced a package of measures designed to allay growing fears that the criminal justice system is simply not coping.

Innocent people with months to wait for their cases to come to court will have been reassured to learn that the CPS, at least, has not been idle while they have been staring at the cell ceilings in their rat-infested gaols. Sleep does not always come easily in such places, but knowing that Area Casework Quality Committees (“ACQCs”) have already been set up, and that “legal managers” are to carry out a number of Individual Quality Assessments will certainly help. Who, after all, could fail to be reassured by the news that “themes identified by the ACQCs” are now to be “escalated to the National Casework Quality Committee”? Plans are now well afoot for still more dramatic developments in March, when a series of “regional awareness workshops” will be held, and by June any remaining problems will be cleared up with the appointment of a “cadre” of “disclosure champions” and the complete development of a “suite of national standard forms …”.

It is easy to mock the Crown Prosecution Service’s long-standing love affair with bureaucratic tinkering, and its neo-Leninist acronyms, committees, cadres and what-not. In fairness, the plans, drawn up jointly with senior police representatives, do include some sensible and long overdue proposals for improving police training. All too many police officers seem to have only the vaguest grasp of the concept that their job should be to help the defence, just as much as the prosecution, to ensure a fair trial.

It is also welcome that the CPS is now to review disclosure in all ongoing rape and serious sexual offence prosecutions.

Yet many questions remain. Why should the review limit itself to ongoing cases, when (it might be thought) there is even more urgency in freeing the innocent from wrongful imprisonment?

Ms Saunders has answered that, albeit with rather alarming complacency: she does not believe that there are any innocent people in prison as a result of disclosure failures.

Less clear is why the review should be limited to sex cases. Problems with disclosure, after all, are endemic throughout the criminal justice system, as last July’s joint report by the Crown Prosecution and Constabulary Inspectorates found.

But although disclosure failures can, and have been, catastrophic in other types of case, it may be no coincidence that all the recent problems have involved either rape allegations, or, in one case, a people-trafficking case which, unusually, turned largely on the evidence of a single complainant.

For many years now there has been remorseless pressure on the police and prosecutors to convict more rapists and sex criminals. Statistics, often of dubious validity, are quoted to demonstrate that not enough rapists are prosecuted, or that when they are prosecuted they are too often acquitted.

The College of Policing still retains its notorious policy that investigators should “believe the victim” and not “focus” on investigating their credibility; and the Crown Prosecution Service legal guidance on “building cases” of rape and serious sexual offences continually refers to complainants as “victims.” It is almost as if an accusation is enough to assume guilt and a trial is a tiresome and somewhat archaic obstacle on the way to locking up the accused.

Even when material is uncovered which demonstrates the innocence of a slew of hapless defendants (of both sexes) who, had it not been for the fortuitous appearance of crucial evidence at the eleventh hour would probably have been convicted, there is a widespread reluctance to draw the obvious conclusion that prosecutions based on the uncorroborated word of a single witness are liable to lead to wrongful convictions. And sex cases, more than other types of case, tend to depend on such evidence.

The DPP is not alone in pushing worries about the wrongly convicted to the back of her mind. The former Lord Chief Justice, Lord Judge, seemed less concerned about the risks to innocent defendants than with the risk that:

these events may reduce the prospects of conviction even when the allegation is genuine.

This is no doubt possible, although it is dangerously narrow thinking. These cases should alarm us primarily not because they may indirectly increase the potential risk of the guilty going free but because they demonstrate the actual high risk that the innocent run of being wrongfully convicted.

Had the phone and social media records of the accusers of Liam Allan, Isaac Itiary, Samuel Armstrong, Cristina Bosoanca and others not been uncovered their accusers would have been free to lie, to misremember or to fantasise without any independent evidence to contradict them, and juries would have been free to convict on their evidence. Any trial would have been a lottery, and one in which the CPS (without the benefit of the undisclosed material) had assessed that the defendants held losing tickets. The blithe assumption that there have been no cases in which defendants have been convicted while evidence of innocence lay undiscovered or undisclosed in a complainant’s phone or Facebook account requires a good deal of wishful thinking that is certainly complacent and, frankly, borders on the ridiculous: Ms Saunders herself has been at pains to explain that it is not the practice of the police to examine electronic media in every rape or sexual assault case. It is overwhelmingly likely that innocent people must now be in prison as a result of convictions in cases where no such examinations have taken place.

Until 1994 English and Welsh prosecutors were often inhibited from bringing prosecutions in uncorroborated sex cases because judges were required to warn juries of the danger of convicting on uncorroborated evidence. There was a good deal to dislike about the actual wording of the warning, not least its implied message that any complainant in a sex case was pretty likely to be lying, and there were many arcane rules about what could and could not constitute corroboration. Yet crucially the rule encouraged the police and prosecutors to search for corroboration rather than simply present the evidence of a complainant.

We need only look to Scotland for an example of a judicial system which still encourages, in fact requires, at least some corroboration before anyone can be convicted of almost any offence. As with the old English corroboration law the rules are somewhat complex – multiple complainers to similar offences can, for example, constitute corroboration – and it is a rule that has its critics: there is little doubt that some people in Scotland have not been prosecuted who, had they been accused in England, would have been convicted of sex offences. Partly for this reason recent years saw a concerted attempt to abolish the rule, and so bring Scotland’s law more into line with that in England. Fortunately for the integrity of the Scottish justice system the attempt failed. The main justification for the rule is that it reduces the likelihood of wrongful convictions, something about which English and Welsh judges and prosecutors are, I am afraid, unduly sanguine.

Although the Scottish Government was keen to abolish the corroboration rule, most of those who responded to an earlier consultation were in favour of keeping it. Nor could the retentionists be characterised as old-fashioned fuddy-duddies, temperamentally inclined to minimise the seriousness of rape. Rape Crisis Scotland, Edinburgh Women’s Rape and Sexual Abuse Centre, Sexual Abuse Survivors Support in Edinburgh and Scottish Women’s Aid all opposed its abolition, arguing, perceptively, that:

the risk that this development would lead to a general perception that convictions obtained on this basis were unsafe may put complainers at more of a disadvantage than any resulting benefits would advance their interests”.

In other words, they foresaw a similar problem to that identified by Lord Judge earlier this month: that rape prosecutions brought on weak and unreliable evidence may undermine “genuine” complainants.

The evidence is anecdotal but the contrast with England and Wales seems striking. Although the Scottish rules about prosecution disclosure are broadly similar to those south of the border, and although Scottish police and prosecutors are subject to similar (if slightly less stringent) financial constraints, there has been no similar outcry there over disclosure failures. In a rape allegation, which might depend largely on one person’s word against another, a hard-pressed English police officer or prosecutor can ignore the need to gather any evidence beyond that of the complainant; a Scottish police officer knows, simply, that with only the complainant’s evidence the case must fail. The result is that prosecutions are likely to be better prepared in Scotland, and important evidence – whether it favours the defence or the prosecution – is less likely to be missed.

Sadly although Westminster legislators have in the past successfully incorporated parts of Scots law into English and Welsh law (the concept of diminished responsibility in murder cases being a good example) it seems very unlikely at the moment that MPs south of the border will be tempted to introduce something similar to the Scottish corroboration law into our law.

There are, of course, plenty of other things that can be done to reduce the risk of wrongful convictions. Better training for police officers would certainly help, and there are encouraging signs that many sensible senior police figures accept that this is essential. More resources for police, prosecutors and the defence are, I am afraid, necessary. But above all there needs to be an acceptance amongst police and prosecutors that false allegations and wrongful convictions are not vanishingly rare anomalies. They are real risks in a frighteningly imperfect system.

 

This piece was first published in the Daily Telegraph on 31 January 2018

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

29 thoughts on “Wrongful convictions are a terrible risk in our frighteningly imperfect justicesystem.”

  1. There is also the matter of the ‘parallel system’ that doesn’t involve using the Court system at all. In order to silence genuine victims….when state agents have the kind of power that they do. There is no way to combat that it seems, accept through war…..and until their immunity from prosecution is removed there doesn’t seem to be any alternative. If I ever summon the courage to defend myself would a removal of an eye from one of them be enough to get them into Court….? Or do I really have to go as far as killing one or more of them? It’s illegal for you to give me any legal advice as I have no papers though….

  2. An excellent article.

    “Yet crucially the rule encouraged the police and prosecutors to search for corroboration rather than simply present the evidence of a complainant. ”

    It’s slightly more than that. In some cases ; the ‘celebrity abusers’ and the prosecution of people who worked in residential care which preceeded it, it encourages them to corroborate by volume.

    Another change around this time dropped the requirement for “striking similarities” (which comes from “Brides in the Bath” I think, originally) which meant that any allegation, however different was mutually supportive.

    This led to simply collecting allegations ; hence in the case of William “Ken Barlow” Roache to claims that were not only unsupported, but the person making the allegation said they couldn’t remember it, though they were sure they were assaulted.

    As an aside, you could probably make a sound statistical argument that Saunders is wrong ; the probability of the 3 or 4 cases in the last few weeks being the only ones that were dropped to disclosure is probably virtually nil unless there was an obvious change of policy encouraging non-disclosure at that time.

  3. “The former Lord Chief Justice, Lord Judge, seemed less concerned about the risks to innocent defendants than with the risk that:

    “these events may reduce the prospects of conviction even when the allegation is genuine.”

    This is no doubt possible, although it is dangerously narrow thinking.”

    Isn’t that the same as saying Judge Judge is concerned that:

    “these events may reduce the prospects of conviction even when the allegation is” FALSE?!

  4. “Ms Saunders has answered that … she does not believe that there are any innocent people in prison as a result of disclosure failures.” In a jurisdiction of nearly 60 million people: liar or fool? Either way, sack her.

  5. “it seems very unlikely at the moment that MPs south of the border will be tempted to introduce something similar to the Scottish corroboration law into our law”. Hm. The CPS itself is presumably the result of an attempt to mimic in E&W the Scottish system of the Procurator Fiscal. The attempt seems to have been largely cocked-up. Copying bits of one jurisdiction’s practices into another isn’t (I assume) a trivial task, especially when the receiving jurisdiction has, how shall I put it, slack and unenergetic habits.

  6. Another article hitting the nail on the head. I despair of the justice system and the gross unfairness of the investigations into historic sex offences. Please explain why it is that a member of the public can contact the police to make serious allegations of sexual abuse on behalf of another person; that these allegations that prompted an arrest can be withdrawn by the complainant at a later stage or dropped from police paperwork AND YET, the case goes to trial on the basis of uncorroborated evidence of other false allegations. No matter the inconsistencies of the complainant’s testimony, once again, because the accused cannot prove that the complainant is lying, the accused is deemed to be guilty. Why oh why do we allow men and women to be convicted on unsubstantiated, inconsistent verbal testimony?? When did justice die?

  7. One obvious point which often seems to be missed is that a large amount of money has been wasted on investigations which either had no realistic chance of going to court, or of course in other cases may have resulted in the actual offender going free

    1. Yes I’m loving this as the BBC’s ” Saint Hilary” will come under scrutiny. Well, I say that but the Democrats on Capital Hill will see it pushed into the long grass somehow.

  8. One thing is for certain and that is that innocent people are currently incarcerated. Saunders saying that no other miscarriage of justice has occurred is just pure fantasy. The government and MOJ must be desperate to quash this for fear of a host of appeals.
    How can neither the police officer in charge of evidence and the CPS who know they have to disclose to the defence get away with this? Apparently there will be no sanction just “retraining” of said individuals.
    We hold our legal system up to the world as incorporating the British value of fairness, when in fact we see there is nothing of the sort. We are quite prepared to let innocents suffer and go after ‘high profile’ targets on the flimsiest of evidence (Tarbuck, Davidson, Roach etc. etc) just to satisfy the feminista’s and for the police to cover their arse due to criticism of their past piss poor performance.

  9. Saunders needs to speak to VICTIMS of false allegations and VICTIMS of the judicial system begore opening her ignorant and uneducated mouth.

    There have been, and still will be, MANY people wrongly imprisoned. Particularly of sex crimes.. the majority of those “historical”.

    There is a lot to be said for the devastation left in the wake of Saville and “victims will be believed”. A lot of “he said, she said”, NO corroborated evidence, NO investigation and a jury left to decide, based on opinion, who is telling the truth. 2 stories and a 50/50 chance of making the WRONG decision (either way) with too many factors that can influence the decision based on.. nothing! How can ANYONE in the public be “sure, beyond a reasonable doubt” of someone’s guilt based on someone’s say so? Everyone has the capability to make false allegations. The majority of reports are sadly true but people need to learn to separate the 2. False allegation (and everything a long with it) is a crime in itself! It creates victims! And is world’s apart from genuine victims of sex crimes.

    It’s about time there was a change and false allegations were taken seriously. Prosecute the liars as a deterrent, support the VICTIMS of false allegations instead of expecting them to be thankful they didn’t go to prison and supporting the filth that caused the problem! It’s about time someone paid attention to the 100’s, maybe 1000’s, in prison maintaining their innocence instead of being left to ROT and it’s about time someone spoke out for those wrongly imprisoned instead of ignoring them and pretending it didn’t happen!!

    If it happened to her or someone she knew then she would sing a different tune. It’s, of course, easy to talk absolute sh** when u have no idea what ure talking about! We are PEOPLE, not paperwork! Stop ticking ur boxes and destroying people’s lives so u can sleep soundly on a fat bonus and listen!!

    The police are corrupt and facilitate these cases to suit themselves and manipulate statistics. If u are a VICTIM of false allegation of rape and/or child abuse please research PAFAA. Do NOT rely on the police to help U, listen to u or prove ur innocence because they are simply not interested!!

  10. the other side of it also include’s cases like Melanie Shaw’s….NO investigation done, NO evidence presented of what she was actually ‘accused’ of finally and that equals many years in prison. She seems to have completely disappeared off the face of the planet for the last two years…presumably in solitary or being chemically lobotomised and ass raped in mental prison again… 🙁

    With the recent twitter culling going on it’s impossible to keep track of some of the cases I know about. Those accounts have completely disappeared…..but they do include cases where pigyobs beat a man to death in the cells AGAIN, claim the CCTV camera isn’t working…IPCC supposedly investigates, discovers they are lying and the camera is still working perfectly fine….still nobody identified or arrested!

    And the exact opposite….drunk off duty pigyob and bunch of mis mates attack a young man 18/19 years old…he defends himself, turns out one of the assailants has a medical condition where the one and only punch to his face kills him….so drunk pigyob and his mates fit him up for murder. He’s serving life without possibility or parole. Since been discovered/ leaked that there is a secret/ covert/ invisible camera there hat recorded whole thing….many months later….at which point they claim it wasn’t working again…subsequently proved that it was…..and guess what? he’s still in prison….. and on the actual investigation that the family and other’s did….it seems like a strong possibility that the guy who is serving life wasn’t even the guy that inflicted the punch…..many other witnesses describe a guy of similar appearance who fled in a taxi……still not even a comment from the PTB about what happened to the camera footage from within the taxi…..you can not make this crap up!

    And i came within inches of being beaten to death as well as gang raped, repeatedly…all of which is on camera, always is….but enquiries to the IPCC and anybody else you can think of just results in more violence, physical and sexual. I’m really not sure if there is a higher % of gay men in the poo lice farce than average to the rest of the population or if it’s just a case of getting off on the violence and sexual humiliation of people.

    I must be innocent as still not been accused of anything- but still in prison of sorts, been in one type or another for 17 years now….shouldn’t i have had a parole date by now?

    End of last year many campaigners also locked up on no evidence/ accusations….Sabine McKneill, Maurice Kirk, many others….there was also a spate of ‘suicides and death by natural causes’ (in the official version) at end of last year- seems all of which was ‘certified’ by poolice rather than doctors…..

    If the blog owner publishes that i wonder what i can expect in retaliation this time…..still hoping for option b) too much of a coward to kill myself or defend myself it seems.

  11. https://twitter.com/lettheirbejust

    another example of what state officials can do to you as well as people in the private sector if they have a bit of money/ influence…..had some of this myself over the years…by rights i firmly believe i should be quite wealthy and employing a lot of people, rather than homeless and destitute, held prisoner by pedophiles effectively as their slave…

  12. I heard Commissioner Dick this morning on LBC.

    She said that sometimes the defence offers up new information very late in the day and that this is sometimes confused with a disclosure failure by police.

    In my experience, I would say that what is sometimes learned late in the day by the defence, is because of a lack of investigation by the police.

    1. but also in their official version they still can’t make up their minds whether it was 7, 8 or 9 times they shot shot JC in the head (he didn’t have a head after the first couple if hollow points used) and this deserves a reward of promotion to royal protection squad rather than prosecution for murder? still refusing to disclose the video for that one….most likely destroyed by now….

      and it’s not the defence job to offer up ‘new information’…..if we had a police force it wd be there job to investigate……

  13. There is also the case of the murder of Chris Alder…..now what possible reason could his body have been hidden in a freezer for over a decade? Considering at the time that we still had the last few remnants of an actual police force, I would suggest that the only possible explanation was to preserve the evidence. In the hope that at some point a proper independent autopsy could be done…hopefully to ascertain whether he was anally raped like I was. There does seem to be a disproportionate number of gay men in the police farce compared to the general population….but, inexplicably upon discovery this evidence was immediately burnt/ cremated.

    Now considering who the family thought was Chris was buried, why on earth would they suddenly change to cremation on the second attempt….?

  14. I think I may have come up with a plan. Pervert parents are begging for a so called smart meter to be installed in this prison of mine….in order to allow the state to record everything that goes on inside in full 3d holoporn and cause me considerable physical pain on top of what I’m already experiencing on a daily basis. I happen to be very sensitive to the energy/ rays those things put out….

    I fully expect to be unable to sleep at all in that environment…so the plan appears to be….presuming there is any actual plan….is to actually drive me into psychosis so I do end up killing somebody. Sleep deprivation was supposedly banned under Geneva convention but there is no rule of law.

    So the choice appears to be to allow that to happen….or defend myself and smash the bloody thing up.

    I could really do with some input from supposedly legal minded people… what is more likely to happen? wish i could add a poll here….but pls vote! 😉

    a) the psychopaths will stop refusing to confirm or deny who they are and actually arrest and prosecute me for criminal damage, knowing full well they would then have to give me my papers back as it is not legal to prosecute somebody that you don’t have jurisdiction over/ isn’t a citizen. They would also be required to disclose all the evidence of what those so called smart meters are for/ what they do as well as all of the other evidence of the accruing matters for the last 25 years.

    b) they will finally choose the other option b and just kill me….

    c) i’ll be interned for life in mental prison, probably the last place they had me in, and will consequently be ass raped and the rest until i finally die…..I plan to hold off a bit just to see if they’ll go for option a) but i expect them to immediately start raping me with cameras and the resulting violence….and knowing the drugging will be coming so it no longer possible to defend yourself (you don’t really know until it happens to you) i will go for maximum violence in the hope of taking as many of them with me as i can to act as a deterrent for future….and ‘force’ them, in their version, to murder me…..

    I’ve never so much as hit anybody in my life…not sure I even can now….and too much of a coward to kill myself……but what other option is there now?

  15. when did the notion of innocent until proven guilty actually end? does anybody know or am i going to have another pack of psychopaths beating me up whilst screaming stop resisting/ it’s a delusion again? for asking that question….?

  16. anybody got any ideas on how i can obtain disclosure of my Uncle Gary’s medical records? refuse to even give me access to mine….even though they have no right to that info, although I do….that’s how perverse and backwards the system is.

    Uncle Gary’s medical records or corroborative evidence of the fact that he murdered my dog, wrecked about five years work (labour value?) and about £5K of materials….every single penny i had in the world! yes i want the cn*t in gaol, along with my pedo aunt and pedo parents and (I suspect) still offending pedophile brother 🙁

  17. I’m guilty of multiple gang rapes, at least two murders….4 killings in total,,,numerous counts of attempted murder, slavery…the list goes on. I have no evidence other than my word…..why will they not prosecute me? that’s rhetorical as they can’t without implicating themselves…

  18. Very useful piece. An eyeopener. It is vital that a balance is struck. We dont want the guilty to walk free but we must also avoid the tragedy of the innocent being found guilty and “potted” by the unscrupulous who is more concerned with “winning” than in the “interest of justice”.

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