Miscarriages of Justice – Assessing the Risk

 

This article proposes the use of standard ISO[1] risk assessments to indentify to identify investigations which may result in a miscarriage of justice.  It is based on the assumption that:

  1. Evidence is a probability of truth[2] created by a process[3] which may be more or less valid[4];
  2. Risk is the probability of an event multiplied by its consequences[5].
  3. Any undisclosed defect and or anomaly in the process by which evidences is created must, by its very nature, create risks to proper exercise of the judicial processes[6].

There may be no logical reason why, given their wide use in commerce and industry, standard risk assessments  should not be also used to assess the degree to which an investigation risks creating a miscarriage of justice[7].  The basic process is quite simple.  It involves identifying and comparing any gap between the legal duties placed on investigators and the conduct of an investigation: the greater the gap the greater the risk.

The legal duties of investigators[8] [9] [10] may be summarised as a requirement to conduct an agnostic search for truth by following all reasonable lines of enquiry capable of implicating a suspect, eliminating a suspect, followed by disclosure of any material that may undermine the prosecution or assist the defence[11];

However, as with all bureaucratic processes, the conduct of an investigation is determined in part by organisational policies, systems and procedures and in part by the competence[12] of investigators. Where organisational policies, systems and procedures fail to ensure an agnostic search for truth or, as a matter of policy, instruct investigators to conduct prejudicial investigations[13] [14] it may be reasonable to infer that the resulting investigations represent a considerable risk to proper exercise of the judicial process.

Risk may also be created by gaps, for example in organisational audit procedures, which allow human error or malpractice to pass through or exploit gaps in organisational policy, systems and procedures.

Whatever the cause, it may be reasonable to infer that the greater the gap between the conduct of an investigation and that required by law the greater the potential risk to the proper exercise of the judicial process.

Standard risk assessments rely upon targeted questions to create the knowledge required to identify and close any gaps between an organisation and its legal and contractual obligations.  The following questions may help to identify any undisclosed gap which may exist between the conduct of an investigation and that required by law. Once identified it may be possible to assess the degree to which this material risks creating a miscarriage of justice and by implication act to close any gaps between the way investigations are conducted and that required by law.

Risk Assessment Questions

Organisational Policy, Systems and Procedures

  1. To what degree do organisational policies, systems and procedures require investigators to document and follow all reasonable lines of enquiry capable of:
    1. Implicating a person of interest[16] or suspect in an alleged crime;
    2. Eliminating[17] a person of interest or suspect from an investigation:
    3. Undermining the prosecution of a suspect or assisting their defence?
  2. Where are the relevant policies, systems and procedures published?
  3. How are they enforced – it may be reasonable to expect Chief Officers to implement effective audit procedures in place?

Investigative Policy, Systems and Procedures

  1. Was the investigation conducted using a standard documented system or systems?
  2. To what degree did the system/s require investigators to systematically and chronologically, record, assess, protect[18], act on and disclose relevant material?
  3. To what degree did the investigation result in the compilation of individual files containing evidence capable of:
    1. Implicating a person of interest or suspect in the alleged offence;
    2. Eliminating a person of interest or suspect from involvement in the alleged offence;
    3. Undermining the prosecution of an individual or assisting in their defence?
  4. How, in the absence of files documenting evidence related to these issues, did the organisation discharge its legal duties?
  5. Who was responsible for ensuring that the investigation was conducted by competent individuals and met the metric set by law?
  6. How did the responsible person discharge their duty[19] ?

[1]ISO 27001: 13 Risk Assessment framework https://www.iso.org/isoiec-27001-information-security.html

[2] (Lord Simon of Glaisdale in DPP V Kilbourne [1073] Ac729 at p729

[3] http://library.college.police.uk/docs/APPREF/MIRSAP.pdf

[4] PRACTICE ADVICE ON – library.college.police.uk library.college.police.uk/docs/acpo/Core-Investigative-Doctrine.pdf

[5] S.Kaplan  and B.J.Garrick,“On the Quantitative  Definition of Risk,” PLG-P0196,Risk Anal.l(1) (1981)

[6] See Note 2

[7]Viscount Dunedin Robins v National Trust Co., [1927] 2 D.L.R. 97; also published at [1927] 1 W.W.R. 692 and at 1927 CarswellOnt 41 miscarriage of justice … means such departure from the rules which permeate all judicial procedure as to make that which happened not in the proper use of the word judicial procedure at all.”

[8] Paragraph2. 1 Codes of Practice  Criminal Procedure and Investigations Act 1996 (section 23(1))

[9] The Chief Constable has ultimate responsibility for investigations within his or her Force.

[10] Criminal Procedure and Investigations Act 1996 as amended

[11] Material outlined in Operation Tiberius may provide an example mahttps://archive.org/details/OperationTiberius/mode/2up

[12] https://www.hse.gov.uk/competence/what-is-competence.htm

[13] https://www.factuk.org/wp-content/uploads/2017/04/Report-Independent-Review-of-the-Metropolitan-Police-Services-handling-of-non-recent-sexual-offence-investigations-1-3-1.pdf

[14] https://www.justiceinspectorates.gov.uk/hmicfrs/publications/an-inspection-of-the-metropolitan-police-services-response-to-a-review-of-its-investigations-into-allegations-of-non-recent-sexual-abuse-by-prominent-people/

[15] Reason J. Organizational Accidents Revisited ISBN 9781472447685 December 16, 2015 by CRC Press

[16] A person of interest may be defined as a person against whom there is weaker suspicion than that required to classify them as a formal suspect

[17] Some police forces have replaced the requirement to Implicate a person with a requirement to Interview, the reader may judge for themselves the degree to which this policy may reduce the need to disclose material which may be created by the requirement to both Implicate and Eliminate all people of interest and suspects.

[18] Protect is taken to include the recording of errors, removal and substitution of material together with the justifying rational

[19] In the event that they used a standard risk assessment process it may be appropriate to request disclosure of this document

By Desmond Thomas MBA Dip M

  1.  Former – Detective Superintendent and Deputy Head of Hampshire CID, Head of CID Training, Head of Performance Review and Evaluation

Current – Associate Lecturer in Criminology (investigative practice and procedure) at Solent University

Pro bono reviewer of investigations

Honours – Honorary Visiting Professor Cardiff University Law School

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