Why the current DPP must be replaced with immediate effect and a royal commission on disclosure is urgently needed [with postscript]

By Dr Michael Naughton, Reader in Sociology and Law (University of Bristol Law School and  School of Sociology, Politics and International Studies (SPAIS)).

Last Thursday (18 January 2018), the Director of Public Prosecutors (DDP), Alison Saunders, made the remarkable statement on BBC Radio 4’s Today Programme that ‘no innocent people are in prison because of failures to disclose vital evidence, despite admitting there is a “systemic issue”.

Whatever her precise intentions, there is little doubt that the most senior prosecutor in England and Wales’s wilful refusal to acknowledge the reality of miscarriages of justice and that innocent people can be and are wrongly convicted and imprisoned only stoked the burgeoning crisis in the existing disclosure regime that governs alleged criminal investigations and prosecutions.

Variously described as ‘ill informed’, ‘complacent’ and ‘part of the current problem’, in this blog I critically evaluate the DPP’s statement in the context of her duties under the terms of the Code for Crown Prosecutors and the perennial problem of miscarriages of justice and wrongful imprisonment in England and Wales.

Moreover, in the context of a growing lack of confidence in the DPP and the disclosure regime in alleged criminal investigations and prosecutions, I will make the case that the DPP should be immediately replaced and for governmental intervention in the form of a royal commission to get to the heart of the apparent problems and devise solutions to fix a system that is clearly broken and in urgent need of repair.

The remainder of this analysis will be in the form of six broad points.

First, the DPP’s stance is simply illogical and can be conceptualised as epitomising an extreme form of Orwellian ‘doublespeak’. If she accepts that there are ‘systemic issues’ with the existing disclosure system then, at the very least, she has to concede that there may be an innocent person in prison because of those issues. Her failure to do so is unlikely to stem the rising tide of discontent with the Crown Prosecution Service (CPS), nor distract from concerns with (non) disclosure.

Second, an outright denial of the reality of innocent individuals in prison because of disclosure errors, whether by design or intent, is flummoxing in the face of a string of recent near miss wrongful conviction cases, where the defendants would most certainly have been imprisoned had they been convicted, and which were the context for the interview in which she made her remarks.

This includes the cases of Liam Allan and Isaac Itiary , whose trials collapsed within days of each other last month (December 2017) when digital evidence that had not been disclosed undermined the evidence against them.

In the Allan case, a computer disk containing 40,000 messages that had not been disclosed by the police to the prosecution or his defence team prior to trial revealed the alleged victim pestered him for ‘casual sex’, casting doubt on the allegations against him. Allan, who had been charged with six counts of rape and six counts of sexual assault, faced up to 12 years in prison if he had been convicted. He would have also been put on the sex offenders register for life.

As for Itiary, there was a failure to disclose a series of text messages that supported his claim that he believed a 15 year-old girl that he had sex with was nineteen. Charged with having sex with a child under 16, Itiary had spent four months in prison on remand awaiting trial. He also faced many years in prison if convicted as well as a lifetime on the sex offenders register.

There is also the case of the Samson Makele , which, too, was halted at trial a few days prior (15 January 2018) to when the DPP was being interviewed.

Another digital evidence non-disclosure near miss case, Makele’s defence team unearthed over a dozen key images from his mobile phone during the trial which had not previously been made available. They showed the accused and the complainant cuddling in bed, which contradicted the complainant’s claims that she had been raped.

In sharp contrast with the DPP’s statement on Today, the Metropolitan Police response to Allan and Itiary was much more honest, and, at least to my mind, much more likely to quell the unease and even start to restore the loss of public confidence caused by its failings. It acknowledged its part in the failures to provide evidence that might be favourable to the defence and announced that it was going to conduct a wholesale review into how it investigates rape cases as a way of restoring public confidence that had been dented.

When compared with the response by the Met police, the DPP’s remarks are, arguably, even more bizarre. In a clear attempt at damage limitation, justice, or rather injustice, for those alleged to have committed criminal offences who may be innocent was not, apparently, something that she was at all concerned with.

Third, this calls into question the fitness of the current DPP for her role as outlined in the Code for Crown Prosecutors.

Most crucially, the Code emphasises that the prevailing duty on the DPP (and all prosecutors for that matter) is to ‘make sure that the right person is prosecuted for the right offence’ and take ‘decisions…fairly, impartially and with integrity’ to ‘help to secure justice for victims, witnesses, defendants and the public. Prosecutors must ensure that the law is properly applied; that relevant evidence is put before the court; and that obligations of disclosure are complied with’ (Code for Crown Prosecutors, 2.2).

Overall, ‘prosecutors must be fair, independent and objective’ and ‘must always act in the interests of justice and not solely for the purpose of obtaining a conviction’ (Code for Crown Prosecutors, 2.4).

This dictates that the DPP/all Crown prosecutors must be alive to the possibility/reality of the wrongful conviction and imprisonment of the innocent so that they are appropriately informed of how it is caused and be well placed to take steps to avoid such occurrences.

To deny that wrongful imprisonment can happen when confronted with incontrovertible evidence that it has almost happened and the CPS is implicated as the source is a perversion of the letter and the spirit of the Code that guides prosecutors/prosecutions, serving to frustrate genuine and legitimate concerns and deepen the current crisis still further.

Fourth, the DPP’s denial of the link between non-disclosure and miscarriages of justice/wrongful imprisonment shows a profound historical ignorance of the reason why the CPS was established and its intrinsic link with high profile miscarriages of justice/wrongful imprisonment cases, which had diminished trust and public confidence to the point of the need for the urgent reform of the existing arrangements at the time.

Established just over 30 years ago under the Prosecution of Offenders Act 1985,the CPS was a key reform to come out of the Royal Commission on Criminal Procedure (RCCP), which, in turn, was established in response to the Confait Affair in which three youths had been wrongly convicted and imprisoned for the murder of Maxwell Confait.

Moreover, the current statutory guidelines on disclosure under the Criminal Procedure and Investigations Act 1996 (CPIA) that govern how the CPS/prosecutors handle cases are also a product of an attempt to restore public confidence in the wake of the apparent failings of the previous disclosure system. Those failings were exemplified in the case of Judith Ward, which also involved the kind of ‘systemic’ non-disclosure by the prosecution, the police and by government forensic science and medical experts acting in concert to secure her conviction, which the CPIA was introduced to resolve.

Fifth, the DPP’s remark that she ‘doesn’t think’ that there are innocent people in prison shows ignorance about, and moral indifference towards, the harm caused to victims of miscarriages of justice caused by non-disclosure who do not receive a custodial sentence. It is as though victims of non-disclosure wrongful convictions that are not given a custodial sentence do not matter when in reality non-custodial successful appeals make up the greatest number of miscarriages of justice victims and also involve the greatest amount of harm.

Six, the DPP’s remark show a total disregard of a letter sent to her (and the Attorney General) by the Criminal Cases Review Commission in July 2016 which expressed concern that ‘many of the Commission’s referrals are the result of a failure…to disclose relevant information at some point.’ The CCRC sent the letter to draw attention to CPS non-disclosure ‘in the hope that [it] would be addressed to the betterment of the wider criminal justice system.’

Against this background, the DPP is clearly in dereliction of her statutory duties to protect the innocent from wrongful conviction and has shown a callous disregard of the harm caused to innocent victims of wrongful convictions and their families in non-disclosure cases when justice goes wrong, whether they are imprisoned or not.

Alison Saunders simply has not shown the leadership, nor the integrity, required of the head of the CPS. She fails to appreciate that the burden on the prosecution is by necessity a heavy one so that wrongful convictions and the harm that they cause are avoided at all costs. Contrary to this, she sends out the wrong message to prosecutors, and one which is contrary to their statutory duties too, that wrongful convictions either do not happen or do not matter. The worry is that this may well be attractive to those prosecutors who may also not understand their role, nor wish to shoulder the burden of responsibility for causing the wrongful conviction and imprisonment of an innocent that inevitably accompanies failures of disclosure.

It is little wonder that there are calls for the DPP to ‘stand down or be sacked’, which I support fully with immediate effect, as she has shown herself to not be fit for purpose.

Yet, I do not think that the mere replacement of the current DPP with a new incumbent will, in itself, be enough to resolve the current crisis in confidence in the disclosure system.

Indeed, as I write this blog, another case involving non-disclosure is in the headlines. This time it is the case against an Oxford University student, Oliver Mears, who had an alleged rape charge ‘hanging over his head’ for two years that was dropped by the CPS on the eve of his trial.

The disclosure system is clearly in disarray with problems of systemic non-disclosure that were thought to have long been resolved still present. Such problems are unlikely to dissipate without a major governmental inquiry that gets to grips with the nature and scale of the crisis of disclosure and how it might be addressed and rectified.

It is for these reasons that a double pronged approach is required that includes both the immediate replacement of the current DPP and the establishment of a royal commission with clear terms of reference formulated on past and present failures of disclosure if trust and confidence is to start to be restored.

[Postscript, 3 Feb 2018, first published at the author’s personal blog]

Yet, another bad week for ‘the best criminal justice system in the World’

The non-disclosure scandal rumbled on this week with charges dropped in two further alleged rape cases.

Connor Fitzgerald had spent three months in custody because police failed to disclosure text messages in which the complainant (who has anonymity for life) fundamentally undermined her allegation against him. One of particular note read: “I’m not just going to mess up his life, I’m going to ruin it lol.”

In the other alleged rape case, a seventeen-year-old male who cannot be named for legal reasons was also cleared of rape after his defence team uncovered key evidence that proved his innocence. It was claimed to have been “missed” by the police and prosecution. Attempting to distance itself from culpability, the CPS publicly blamed the police for not discovering thousands of social media messages that proved the accused was not guilty.

But, the problem of non-disclosure is not restricted to alleged rape cases.

In an alleged bribery case that was reported this week, hundreds of emails that proved that Clive Steer was innocent failed to be disclosed by Surrey police and the CPS even though they were contained on his laptop, which he handed over to the police when the raided his house to prove his innocence. Most unusually, when issuing the acquittal the Judge ordered the CPS to write to the court and Mr Steer providing a full explanation of its failings in the case.

It was also reported this week that Petruta-Cristina Bosoanca, accused of people trafficking and prostitution, who was held in custody for more than 13 months before her trial collapsed, gave birth whilst in prison on remand.  The case was thrown out by the Judge on the grounds of a “wholesale failure” of disclosure of evidence that undermined the allegations against Bosaonca.

Finally, non-disclosure was also involved in a major drugs trial this week when a judge threatened to drop the charges against the two defendants when the police refused to disclose evidence to his defence, arguing that they could not afford a £14 memory stick to put it on.

It is uncertain how many other cases this might have a bearing on, but judging from the comments of legal practitioners on twitter it is unlikely that this case is a one off incident.

This signals the importance of collecting any and all information that may have a bearing on alleged criminal offences.

Indeed, if police officers fail to collect all potential evidence on memory sticks then potentially exculpatory evidence may not officially exist to be disclosed to the defence team at all.

It works the other way, too, when evidence of the guilt of an accused does not officially exist, either, when it is not collected and retained, and the primary source of the information is lost or destroyed.

These cases add to my reflections in the first part of this post about the current disarray of the (non)disclosure regime. It called for the immediate replacement of the DPP, Alison Saunders, on the grounds that she is not fit for purpose, and the setting up of a royal commission to get to the root of the problem and find solutions so that trust and confidence in the criminal justice system can start to be restored.

It has long been known that non-disclosure cases are a routine feature of an adversarial criminal justice process that is biased against the accused from the outset.

It is, equally, clear that the police and CPS cannot be trusted with the control of what is and what is not disclosed.

This calls for the urgent setting up of a new independent disclosure system that does not have an interest in the conviction or acquittal of an accused, which provides full open file disclosure of everything collected in criminal investigations to both sides in the interests of fairness and justice.

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