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