A disgraceful failure of disclosure – the implications

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Created on December 17, 2017

A disgraceful failure of disclosure - the implications

Old Bailey Solicitors have experience of representing clients that have found themselves in a similar position to Liam Allen, a case widely reported in the national news this week.  We are therefore pleased to reproduce this article from the Criminal Law Solicitors’ Association (CLSA) regarding the frightening deficiencies in our current system of disclosure.  

Disclosure is a concept which is well known to those who practise within the Criminal Justice System, for those who are not so aware, we will try to explain what it is.

Any case which is placed before a criminal court for a trial, begins its life via a police investigation. It is not solely the job of the police to gain evidence on behalf of the complainant, but to also listen to the person who has been accused of an offence. This usually takes place by a police interview. If the person interviewed gives a version of events, it is for the police to investigate equally, and impartially, the defendant. Failure to do so is not acceptable, otherwise, what is the purpose of an interview?

If a Defendant is charged, and the matter proceeds to the Crown Court, then the Defendant, through his or her legal team, lodges what is known as a defence case statement. This is a document which is sent both to the Crown Prosecution Services and the Crown Court, it sets out the Defendants case, and it sets out a list of the documents which the police have, which may undermine the case against the Defendant.

It is the duty of both the Police and the CPS to provide the items requested. A Police Officer is appointed to be in charge of each case in the Crown Court, and it is his duty to review each case, and to respond to such requests. This duty is set out in law under the Criminal Procedure Investigations Act 1996. It is a duty, not a discretion.

Liam Allen was fortunate that the day before his trial, a new Counsel for the Prosecution was instructed. Someone who bothered to read the papers, who cared enough to see that there had been a flagrant breach by the police, by failing to disclose a CD with thousands of items of information which exonerated this young man. The police had no right not to review it, and no right  to ignore their duties.

A young man had 2 years of his life ruined, either by incompetence, indifference or dishonesty. The information was available, and may never have come to light had the new Prosecutor not acted. This is justice in England in the 21st Century. Perhaps it is more akin to 3rd world justice where individual rights no longer matter.

We should all be disgusted, and we should all be worried, because this is just one case which has come to light, we can only speculate as to how many others have not. Do not imagine that it is an exception.

Robin Murray, a member of the CLSA, a former Vice Chair, has recently highlighted via Twitter, a survey, the true extent of this problem is shocking.

One investigation on one case will not resolve this problem, there needs to be an appetite to say “prosecute fairly, be open, be honest, do not hide evidence”. If this deception is allowed to continue, there will be further erosion of trust in the Criminal Justice System, as frankly, there will be no justice.

What was once a beacon of light in the world is now little more than a sham. Justice is for all. Just because an allegation is made does not make it true. Each allegation must be tested properly, investigated properly, openly and with clarity. Not treated with indifference, apathy or disdain.

For Liam Allen, there was a modicum of justice, for his accuser, nothing. A young mans world blighted by a tissue of lies which the investigating bodies knew about, and failed to act appropriately. The prospects of a different Prosecuting Counsel at trial, less robust, and this young mans life could be over. That is a thought which does not bear thinking about.

It is time to take back the Justice System to where it belongs, justice is for all, a full, fair, impartial investigation, nothing hidden, nothing overlooked. That is what any decent civilised society should aspire to. How have we been reduced to the shambles in which we operate?

Have an enquiry by all means, but that is not the answer. It is time that this Government listened to those who practise and witness such distortions on a daily basis, and just think about this, the next false allegation could be against you.

Sir Cliff Richard, Paul Gambaccini, Leon Britten, all witch hunted by a police state determined not to look closely, but to prejudge.

Tonight, as with many others, we say, “There but for the Grace of God”. Merry Christmas Liam Allen, it could have been so different.

With thanks to the CLSA for producing this article.

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