At the end of 2017 the cases of Liam Allen and Isaac Itiary have put a spotlight on the disturbing state of criminal investigations and prosecutions in cases of rape and sexual assault.
Most of us would expect the police to want to catch the criminals. The people that have done it. The guilty ones. And that is exactly what most police officers, perhaps understandably, think is their job as well. But you and they would be wrong, profoundly wrong, and it is this basic, fundamental error that lies at the heart of the problem.
Because who decides who’s guilty? The job of the police is to investigate; investigate whether or by whom an offence has been committed. They have a legal duty to investigate all reasonable lines of enquiry, whether they point towards the guilt or innocence of a particular suspect. It sounds simple, but if you are a suspect in a criminal case, especially a sex case, you, like Liam Allen and thousands of others, had better get used to the idea that this isnt how it works. This isn’t a story of a few rogue cops gone bad, or a crumbling, underfunded criminal justice system overwhelmed by national austerity (though both get blamed daily in courts and the press to cover a wider, more difficult truth). This is a story of a state funded system designed with political ends in mind to convict those accused of crime. Once a person is charged they must have done it, if only the Crown can prove it. And because victims of sex crime must be believed, a suspect will always be charged unless there is not, disappointingly, enough evidence to charge. Thus it is the job of the police to find enough evidence to charge and prosecute. Inconvenient evidence that would undermine a prosecution or assist a suspect doesn’t achieve either of those aims, so it doesn’t have any real importance. As soon as the police think it is their job to catch the criminals, the system goes wrong, because it is they, not a court or a jury or anyone independent, who is deciding on who is a criminal and then setting about proving it. If a police officer goes about the job of investigating all lines of enquiry, and simply properly presents that evidence to the Crown, the system will work so much better.
This description is not the cynical rant of a defence lawyer embittered by the constant failure of the police, CPS or Judges to apparently care one bit about due process in investigations and disclosure. It is a summary of legal policies, and the everyday experience of practice in the police station and courts.
Liam Allen knew the rape allegations he faced were rubbish, and he knew there existed thousands of text messages between he and he ‘victim’ that proved it. That gave him an advantage when it came to forcing the eventual disclosure of this crucial evidence, which lead to the dramatic, late collapse of his trial. Pity those, and there are many, who didn’t get the disclosure they deserved. Pity those suspects where the police hold or could hold evidence that helps their case that they don’t know about. An extra witness here. A useful 999 call there. Social services records. School reports. Text messages. Emails and social media content. And ever on. And more fool those who expect a court to help their quest for fair disclosure. Expect to be met with apathy at best, more likely positive resistance. Expect to be told you are simply fishing for a loophole. Expect to have to justify the relevance of the material you have never seen. Expect the court to wholly accept a bland assurance of a prosecutor in court, that never comes to fruition. Expect excuse after excuse after excuse and expect no one in authority to care one bit. And when you reach the day of trial without having received what the law says you should, expect the trial to carry on all the same. Because this is what happens in cases everyday, all over the country, in magistrates and crown courts.
What can a suspect do about this? Ideally, they act early. If the case is yet to be charged then very proactive pressure at the police station stage can make a huge difference to disclosure later. Not only might a charge be avoided altogether, a foundation can be laid for later disclosure applications. Many cases with disclosure problems arise because an innocent suspect trusted the police to fairly investigate and conclude they are innocent. At the court stage, a suspect or their legal team need a dogged and relentless focus on disclosure from the very beginning. The system is not fit for purpose, but complaining about that will not help you one bit. It is about the detail, often painstaking detail, and being prepared to leave no stone unturned. The defence need the energy and resource to pursue every line, whether or not this is how the system should work. And following the disclosure textbook is unlikely to be good enough. Identifying evidence you know exists but the police have not disclosed can help demonstrate police disclosure failings. The timetable set by the court should not guide the defence, because the police and CPS will ignore it and there is nothing you can do about that. Those timetables are merely a route for the court to pretend they are managing the case, when in reality they are assisting the Police and CPS in getting away with failures to disclosure evidence that does or might help you.
What about a victim? Victims or crime and especially in sexual crime should be justifiably worried that an offender will get off, or a trial will collapse, because of disclosure failures. It is a spectacular irony that the failure of the police to properly investigate all lines of enquiry can often help a defendant create doubt about their guilt. If a police officer looks biased a jury may well conclude they cannot convict. Victims and their families are desperately let down by a system that fails to explain these processes, and discourages open, detailed ‘warts and all’ accounts (even though the truth will out at trial). Victims should ensure that they are able to maintain an active dialogue with the police and, where appropriate, the CPS, to be consulted and updated about decisions. Some will appoint a representative to attend at court hearings to accurately follow the process, make representations to the police or CPS, both before and during any trial. The State should do all of these things for you, but they don’t.
Our Criminal Justice System is meant to convict the guilty and acquit the innocent. In an adversarial, evidence based justice system proper and fair disclosure is simply essential. On such empty rhetoric all will easily agree, and expect the ‘golden thread’ of disclosure to be trotted out repeatedly by judges and politicians. On the ground, for those facing criminal allegations and especially sexual allegations, it is time to stop trusting the system and start fighting your corner. For the rest of us, we can only thank our lucky stars it’s not us in the dock right now.
Matthew Graham, Partner and Head of the Criminal Team