Another day brings another terrifying near miscarriage of justice.
Liam Allan, a 22 year old criminology student, was yesterday cleared at Croydon Crown Court of a string of rapes against a woman who claimed that she “did not enjoy sex.” Mr Allan had always maintained that she had consented, and that her complaint was malicious.
The case collapsed after three days when analysis of the complainant’s mobile phone was finally revealed to the persistent prosecution barrister, former Tory MP (and now incidentally the renowned legal blogger) Jerry Hayes. It showed that amongst the 50,000 or so messages sent by the complainant (or to use the official term approved by the College of Policing, “the victim”) were messages to Mr Allan pestering him for sex, and fantasising about “rough sex and being raped.” Mr Hayes, a member of the independent bar rather than an employee of the Crown Prosecution Service,
saw immediately that the messages destroyed the prosecution case, and invited the judge to find Mr Allan Not Guilty. The judge did so, and has called for an inquiry into why the messages were not disclosed earlier.
Had the messages not come to light the jurors would have heard the whole case and retired to consider their verdict. Perhaps Mr Allan would have been acquitted anyway. But the judgement of the CPS was that there was a better than 50% chance of a conviction. The judge was satisfied that there was no legal impediment to conviction. Everything would have turned on who, out of Mr Allan and his accuser gave the jury the more convincing account; or put more accurately, on whether the jury was sure that his accuser was telling the truth.
Unfortunately, although that is a task juries are regularly called upon to perform, it is one that they are not very good at (I am not suggesting that judges would necessarily be any better).
It is particularly difficult for juries to make the right decision when there is little independent evidence, and when the main witness is what barristers like to call, or at any rate used to like to call, “a fluent and accomplished liar.” The whole point about fluent and accomplished liars is that they are both more likely than the average person to lie, and are able to do so fluently and in an accomplished manner.
I have no idea what impression Mr Allan’s accuser made on the jury: perhaps they had seen through her and would have acquitted Mr Allan in a few minutes. But it is quite likely that she was convincing and that Mr Allan would have been found guilty and would by now be settling down by now to the first of many miserable Christmases behind bars. His chance of ever clearing his name would have hovered somewhere between low and infinitesimal.
There may be those who will say, “well the system worked, he was acquitted, what’s he got to worry about?”
It is true that the system, in this particular case, just about worked, albeit Mr Allan had to endure nearly two years of anguish when a proper investigation would have cleared him within days or weeks. But to say that his eventual acquittal shows the system is working properly would be astonishingly complacent. It would be like expressing confidence in a cheaply maintained aeroplane that has flown across the Atlantic, with the navigation system going flop-bot 200 miles south of Reykjavik, two engines conking out somewhere west of Kangerlusuak (it’s in Greenland, since you ask, surrounded by high mountains, polar bears and thousands of feet of thick clouds) and a third catching fire over Baffin Island, before making a belly landing on a single engine at Gander in Newfoundland. Mr Allan made it to freedom, but he was extraordinarily lucky.
He had been under investigation or awaiting trial on a false allegation for nearly two years. Had he been convicted he would very probably have received a sentence of around twelve years imprisonment and he would have been on the sex offenders’ register for the rest of his life. A young man would have had his life ruined by a false allegation. He owes his freedom to the professionalism of the man instructed to prosecute him.
Despite the magnificent performance of Mr Hayes, a case like this ought to shatter any remaining illusions that the English and Welsh criminal justice system is fit for purpose.
The crucial evidence undermining the prosecution case – an electronic copy of the contents of the complainant’s phone – had been sitting in police files, presumably for months. Mr Allan had specifically asked that it should be examined, because by the time of his arrest he had lost his own phone.
On this occasion, at least, the police actually did examine the phone, although nobody with experience of the way cases are prepared would have been the least bit surprised if they had not done so (the judge would then have given the jury the unhelpful instruction “not to speculate on what an inspection might have revealed”).
So, you might reasonably ask, since her phone actually was examined, why was the result of that examination not disclosed to the CPS (who could then have dropped the case earlier), or to Mr Allan’s defence solicitors who could have either brought it to the attention of the CPS, or used it to cross-examine the complainant in court?
There are several answers.
The first is that there are lots of pressures on police time and, the police, being human beings, sometimes cut corners. No doubt more resources would help, but a lack of resources may not have been the only problem. According to Mr Hayes, the “Officer in Charge” (whether this was the Officer in the Case or a separate Disclosure Officer is not entirely clear) had reviewed the messages and had not found anything that warranted disclosure. At the very least one would have expected the discs containing the messages to have appeared on the schedule, amongst masses of other items marked with what has become the default acronym: “CND” which is meant to stand for “clearly non-disclosable,” although just as often it stands for “certainly ought to be disclosed” or “no-one has bothered to look,” or “there are thousands of pages here I really can’t be bothered to look through all of them,” or “this hasn’t copied very well and I can’t read it,” or “I’m just standing in for the OIC who is on annual leave and I haven’t got the first idea, really, what the case is about let’s hope he’ll plead guilty.”
But it would be unfair to place all the blame on the police, or on the lack of police resources. Many prosecutors do not regularly do what Mr Hayes did and look at the unused material themselves. Given the 2 years this case had been in preparation it is unfortunate, to put it mildly, that this was not done until the jury were almost out. There is a tendency, and it is again quite understandable, to assume that where a disclosure schedule says “CND” it implies that someone has actually looked at the document in question and made the correct assessment of its relevance.
However, laziness and lack of resources only explain so much. A more fundamental problem is the system whereby police and prosecutors are able to decide for themselves what material should be disclosed to the defence.
The system is meant to work like this (I simplify because it can get more complicated):
Once someone is charged with an offence, a police officer identifies in a schedule all the documents and other material which the police have gathered during the investigation. In a small case this duty will probably fall on the officer in charge of the investigation. In a larger case there should be a dedicated Disclosure Officer. The identification is typically very brief, perhaps just a few words – “interview plan” or “SDN of interview suspect later released without charge”- although sometimes it will run to a few lines. If the material appears capable of “undermining” the prosecution case the Disclosure Officer should flag it up to the CPS, and if a prosecution lawyer agrees heor she will mark it with a “D” for “disclose.” If he thinks it does not undermine the case he marks it with a “CND.” Ideally the Disclosure Officer should send the CPS a disclosure report, although again in practicethat does not always happen. Sometimes the lawyer asks to see the actual documents, sometimes they will rely on the police assessment. The documents marked “D” will be copied to the defence (or sometimes if they aren’t susceptible to copying they will be made available for inspection). Those marked “CND” will not be copied, although the schedule of documents will be given to the defence. There is a further complication, in that some material may exist which is considered too “sensitive” to give to the defence (perhaps references to an informer, for example), so there is often a separate “sensitive” schedule which the CPS sees but the defence does not. In many cases the decision as to what goes on the main schedule and what goes on the sensitive schedule can seem almost entirely arbitrary.
Having been served with the disclosure schedule the ball is then in the defence team’s court. It must serve a “defence statement” setting out the nature of the defence; in this case that the complainant consented. When a suspect has answered questions in a police interview the likely nature of the defence will already be known to the prosecution. The defence statement is also the place to ask for specific documents (in this case, presumably, the phone examination report would have been requested). The prosecution (and the police) are then under a duty to review what has been disclosed, and if they hold hitherto undisclosed material tending to undermine the prosecution case, or supporting the defence case as revealed in the defence statement, they should say so and give it to the defence. In this way, it is assumed, the defence will have been given all the material it needs, although the prosecution remain under a duty to keep the question of disclosure under review until the end of the trial.
If, having essayed this pas de deux, the defence still believes that the prosecution has helpful material which it is refusing to disclose, it is possible to make an application for specific disclosure of particular documents. It is not clear whether that happened in this case, but if it did it could still have been defeated by a disclosure officer saying that the documents had been examined and they did not contain anything meeting the test for disclosure.
It is extremely rare, in a routine case, for a judge actually to look at documents and order that they should be disclosed, although that does sometimes happen when issues of Public Interest Immunity arise (a subject, perhaps, for another day).
The point of running through all this rather dry procedure is to demonstrate that the system is dependent on the efficiency and honesty of the police and the CPS. The police must correctly list, describe and categorise their documents correctly. The CPS must review the police documents carefully. And as investigations continue even after a suspect has been charged, both police and CPS must keep the matter under constant review. There are numerous possibilities for important documents to be ignored, or misunderstood, or not included on the schedule or even deliberately concealed, and the opportunities for the defence to obtain helpful material (assuming they even know of its existence) are limited. Unduly vague requests for disclosure are liable to be denounced by busy prosecutors (or judges if it gets that far) as “fishing expeditions” (fishing is considered a somewhat disgraceful activity in criminal litigation), whereas unduly specific requests run the risk of not uncovering important evidence that the defence may not even have been aware of.
The system is not working well. A July 2017 joint report by HM Inspector of Constabulary and HM Inspector of the Crown Prosecution Service summarised the position like this:
The inspection found that police scheduling (the process of recording details of both sensitive and non-sensitive material) is routinely poor, while revelation by the police to the prosecutor of material that may undermine the prosecution case or assist the defence case is rare. Prosecutors fail to challenge poor quality schedules and in turn provide little or no input to the police. Neither party is managing sensitive material effectively and prosecutors are failing to manage ongoing disclosure. To compound matters, the auditing process surrounding disclosure decision-making falls far below any acceptable standard of performance. The failure to grip disclosure issues early often leads to chaotic scenes later outside the courtroom, where last minute and often unauthorised disclosure between counsel, unnecessary adjournments and – ultimately – discontinued cases, are common occurrences. This is likely to reflect badly on the criminal justice system in the eyes of victims and witnesses. [One could add that it also might seem rather unsatisfactory in the eyes of wrongly accused defendants]
The Report generally makes for terrifying reading. The Inspectorate found faults in over 80% of disclosure schedules, and found over 22% to be “wholly inadequate.” It provides anonymised examples of near miscarriages of justice caused directly by exactly the sort of disclosure failures demonstrated in Mr Allan’s case. It also contains recommendations for improvement, which (if implemented) do not seem to have had the desired effect.
It makes some sensible recommendations, many of which involve better training for the police and better procedures for prosecutors.
There are many issues that the Report does not address.
It does not address the fact that although individual police officers are usually highly professional and scrupulously honest, there is an unavoidable tension in the police deciding for themselves what material is likely to undermine their own, or their colleagues’ cases. Moreover, when material is wrongly withheld there is often no reason for it ever to resurface. If it does not find its way onto a schedule, or does so only with a misleading description it stands a high chance of being effectively lost for ever.
Given the lamentable state of disclosure revealed by the Report it seems all but inevitable that there have been undetected miscarriages of justice. Where there is “wholly inadequate” disclosure in nearly a quarter of cases, and some significant faults with the vast majority of cases, there will inevitably have been disasters in which innocent men and women have been wrongly convicted.
One would have thought that the appeal process would be the place to remedy these problems, but it manifestly does not do so. Once a person is convicted the prosecution’s statutory duty to disclose undermining evidence ceases, to be replaced by a less onerous common law duty, that often makes the task of obtaining material wrongly withheld in the first place even more difficult. It is all very well to complain that the prosecution failed to disclose vital documents, but unless a would-be appellant can identify what it was that was wrongly withheld he will, in all probability, get nowhere. The Supreme Court has held:
“that in the contest for the finite resources of the police current investigations should be prioritised over the re-investigation of concluded cases.” [See R. (on the application of Nunn) v Chief Constable of Suffolk Constabulary  UKSC 37.
A broken system of disclosure and a broken system of appeals are not the only problem with our criminal justice system.
Add to them the constant and remorseless cuts to legal aid. Add to that the clamour for the rules of evidence to be weighted more and more against defendants, especially in sex cases.
Our system no longer deserves to be considered the envy of the world. It has become instead a symbol of national decline. Cases such as that of Mr Allan show that it is close to becoming a national disgrace.
(I am grateful to a reader who pointed out an error in the original version of this blog in which I said that police officers mark the disclosure schedules with “D,” “CND” etc. That is, of course, the responsibility of the Crown Prosecution Service lawyer. )