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Criminal (lack of) Disclosure

In a case in February 2000, a judge threw out a drugs prosecution. Apart from the failure of the system to decide the guilt or innocence of the parties, the case cost over five million pounds to come to court. It was a big case. Because it was a big case, the pressure was on the police and CPS to secure a conviction.

By co-incidence, the prosecution failed, and repeatedly, and apparently with some determination, to disclose to the defence all manner of bits of information in their possession which would have been of assistance to the defence. More than one court order (as well as the general law), was re-interpreted so as to limit the obligation to disclose.

No doubt many, and surely nearly all, of the prosecution team were honest and diligent. Equally, and without doubt, some few were not. The resulting injustice of the prosecution led to the judge throwing it all out - and rightly so.

In any criminal prosecution, the police gather large quantities of information, and all sorts of things are logged by them. Some things they think will be relevant, and some not. The defence team have to make a similar assessment, but will usually come to a different conclusion. The silly, perhaps even evil, fact however is that the officers involved in the case have almost exclusive control over what the defence sees.


In one, more local, case recently, a young man was charged with an assault on a constable. The lad was at risk of a prison sentence. He claimed that it was the police officer who had begun the assault. On the day of the trial, the defence team had disclosed to them the contents of a 999 log, which demonstrated facts clearly supporting the defence version of events. It was listed on a form which is central to all criminal cases. This form is a list of the papers in the case prepared by the 'disclosure officer.' In this case, and despite it being quite clear to all involved, the officer, his fellow officers, immediate superiors, and the Crown Prosecutor, that the issue was the possible criminal behaviour of that particular officer, that very officer was appointed to take control of what was disclosed. He had marked on the paper that nothing in the log would be of assistance to the defence.

There is an old Latin maxim 'nemo judex in sua causa' - nobody should be a judge in his own cause. There is an equally simple principle of English Common law of the right to natural justice, and a fair trial. There is an even clearer statement of binding law in the European Convention on Human Rights, to the effect that a defendant in a criminal case is entitled to a fair trial.

English law now allows, and even encourages, a police officer to act as judge and jury in almost every case he manages. He is given the opportunity to hide awkward facts, with no effective system for supervising or checking his behaviour. It is designed to corrupt. The Criminal Procedure and Investigations Act (pace Michael Howard) is the offending beast.

In the seventies and eighties, our legal system had a whole series of real and vicious miscarriages of justice. The Police and Criminal Evidence Act 1984 improved that greatly. This Act, as promised at the time will create just as many again.

Let us be quite clear. The Police are regularly withholding from the defendant, and from the court information which would tend to show the innocence of that defendant. The system encourages them to do so.


17 February 2000

Lest poor Michael Howard take all the blame, let me record that today also the UK system of public immunity certificates was also challenged by the European Court of Human Rights. In a notorious case, three men were convicted of the 'M25' murders. The court held that the convictions were unfair (improper?) because the system of certificates had been used to withhold from the defence material which might have helped them persuade a jury of the innocence of their clients.

The case pre-dates the CPIA, but it should be noted that, at the time, the CPIA was trumpeted as an improvement in the system for making sure that the defence should not have information withheld, but in fact did precisely the opposite. Some suspicious souls might think that was what was intended.

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18 October 2013 http://www.swarb.co.uk/lawb/nws0002Disclosure.shtml 270 18 October 2013