“…Disclosure is an essential element of the criminal justice process, but has too often been seen as an administrative task completed the end of an investigation, exacerbated by the rapid expansion of digital material involved in almost every case. We now need to firmly embed disclosure in the investigative mindset from the outset of any investigation…”
(Nick Ephgrave, the NPCC lead for Criminal Justice, UK)
Recent collapse of several rape trials in England and Wales highlighted a failure to share evidence & disclosure of evidence by the CPS & Police in the era of mobile phones and laptops with defence solicitors. It is reported that in London alone, prosecutors and detectives are reassessing 600 rape cases. Thousands of rape prosecutions across England and Wales would be re-examined to check whether they have been affected by disclosure errors similar to those that led to the recent collapse of a number cases. A review of the collapsed cases produced evidence that supported the victim’s account, causing prosecutors to drop those cases.
In the lead up to criminal trials, police and prosecutors have a duty to disclose evidence that might either assist the defence case or undermine the prosecution’s. However, the recent collapse of several rape cases has heightened concerns that evidence is not being disclosed early enough, and that the rules are not being followed which would bring the following negative impact in rape trials.
Therefore in this article an attempt will be made to focus on how non disclosure of evidences in rape trials have lead to the collapse of several rape trials in recent weeks together with recommendations to fix the problems of the Criminal Justice System.
Example 1: Images from phone not disclosed
A rape trial collapsed in January 2018 after the CPS offered no evidence when it emerged that the images from the defendant’s phone of him in bed with his alleged victim had not been disclosed.
Lawyers for the victim, who had been under investigation for a year and half, said that if they had not recovered the photographs themselves the trial could have resulted in a miscarriage of justice and the accused eventually being deported.
Example – 2: Phone messages not disclosed
Another rape case was halted in Croydon in December 2017 under similar circumstances when phone messages between the man and woman cast doubt on the prosecution’s version of events.
Example – 3: materials from defendant’s phone not disclosed
Another sexual assault case was abandoned later in December 2017 after material recovered from the defendant’s phone was only belatedly handed over as the case was about to go to trial.
In another case a UK student, who was studying psychology at the University of Greenwich, was on bail for almost two years and spent three days in the dock at Croydon crown court before the case against him fell apart.
He was charged with 12 counts of rape and sexual assault, but his trial was abandoned after police were ordered to hand over phone records that should have already been provided to the defence. Case against him collapsed over police’s failure to give phone records to defence lawyers.
The victim expressed his own frustrations with the way his case was handled by police and CPS, saying: “There were certain messages that were plucked specifically to go against me.
Catastrophic errors and failure
A full review of all ongoing rape cases is needed urgently. It appears that the Police & CPS in several cases had made several catastrophic errors. In most of the collapsed rape cases there were flaws in the initial investigation stage.
The investigator did not examine the victim’s digital media during the initial stages of the investigation or follow what would be considered to be a reasonable line of enquiry.
Effects of failure to disclose
Firstly, the collapse of a series of rape trials could endanger future convictions of genuine rapists because of reduced public trust in the justice system.
Secondly, juries may start doubting the quality of evidence presented to them in court after several high-profile rape cases collapsed owing to blunders by police and the CPS.
Thirdly, juries may wonder, even in an apparently strong case, whether they have been provided with all the admissible evidence.
Fourthly, the doubt on admissible evidence might reduce the prospects of conviction even when the allegation is genuine.
The recent collapsed rape trials refer to the near miscarriage of justice as errors. The above discussion reveals that these errors were grave and very serious and cost victims almost more than one years of their life. It is to be noted that there are already provisions in place to deal with data evidence. The collapsed rape trial cases clearly demonstrate that a group of CPS and Police are not doing their jobs and follow their duties properly.
To avoid any future miscarriage of justice in rape cases, in my opinion, all CPS officers and the police should do their jobs and follow their duties properly. Following steps should be taken immediately to bring public confidence back in the Criminal Justice System regarding rape trials:
Firstly, all current rape cases should be reviewed urgently to ensure that evidence, which needs to be disclosed, has been handed over to defendants. Secondly, all rape cases should be subject to regular and ongoing scrutiny. Thirdly, all old and live rape and serious sexual assault cases should be assessed properly to check they met the disclosure obligations have been met and finally, disciplinary actions should be taken against the officers who failed to disclose evidence to the defense lawyers
In addition, exemplary punishment should be given to those who bring false allegation of rape against the innocent victims. This would deter the other would be criminals to bring false allegation of rape against the innocent victims. We all must stand together to shoulder to shoulder, to join in the procession to combat and uproot the incidents of false allegation of rape and failure of the police and CPS to disclose evidence to defence lawyers in rape trials to avoid miscarriage of justice. Otherwise, the strict application of Criminal law, would fail to deter this crime and bring the perpetrators before justice.
*By M. A. Muid Khan
* (The writer is a Barrister of the Honourable Society of Lincoln’s Inn, Chartered Legal Executive Lawyer of CILEX. He won the CILEX President Award in 2016 & was declared as the Best Human Rights Lawyer of England & Wales by Bar Council, Law Society & CILEX. He can be contacted at firstname.lastname@example.org ).