201712.16

“When the police withhold vital evidence from the defence it affects us all”

Daily Mail Article: Rape victim texted alleged attacker asking sex

There has been a lot said about this case in recent days and in the various press outlets.

My thoughts:

The police withheld vital material for two years, causing this young man to go through hell awaiting trial and he potentially faced the prospect of conviction for an offence he never committed. He would have been sentenced to 5 or 6 in prison, his life over as he would have known it, convicted, shunned, sex offenders register, work prospects ruined etc etc.

That material fundamentally undermined the case against him and the trial collapsed. There can occasionally be good reason to withhold information, for example sensitive information for the publics greater protection but such decision are subject to judicial scrutiny and so an element of protection exists for those potentially affected by such a decision.

In this case, the failure of the police to make this evidence available to the defence can only be explained on one of two ways:

Incompetence in which case jobs should follow;

Dishonesty in which case not only jobs but prosecutions must follow.

I do not know which applied and there will be an enquiry but forgive my cynicism if i don’t expect the truth will ever really be known.

I question why the defence did not seek disclosure of the relevant telephone evidence. No self respecting lawyer can properly claim a lack of funding (which is a very real problem) as the reason. If you cannot properly represent your client for any reason then do not try at all. But assuming the defendant knew he had received texts from the complainant, and assuming he told his solicitors and counsel, why did they not pursue this material with requests of the CPS and applications of the court? Maybe they did, but i have seen nothing to convince me of that.

More importantly is how this will affect future such cases:

This is an area of the criminal law already regularly in the spot light and debated for the many issues that complicate it:

We have the issue of historic sexual behaviour, false allegations made by disgruntled victims, genuine allegations dismissed by unsympathetic investigators, victim blaming, male dominated police forces, courts and I could go on.

It is therefore so important that this latest case doe not further undermine the genuine allegations and the need for a fair system of trial for such cases so as to ensure justice for all those so affected, victims and defendants alike.

We must avoid yet more knee jerk reactions to what is probably a fairly isolated set of circumstances.

But let us not forget that old adage, be it better that 9 guilty men free that one innocent man goes to jail.

Accordingly, i would call for full, open and transparent disclosure in all criminal cases. What possible reason can there be to ever withhold material save for the point i made above at the start.

This will protect against the very rare case of dishonesty within the police,CPS and in the, dare i say it: more usual case of incompetence in the police/CPS.

Perhaps the police are under too much pressure to increase conviction rates for rape cases, we know they are disproportionately low. But illegally manipulating evidence is not the answer.

Unfortunately, these actions undermine every genuine allegation and all the good work being done to increase conviction rates.

These actions make every day people and jurors more suspicious of the victims assertions and the police officers giving evidence.

They undermine every good argument in favour of controlling cross examination of complainants on past sexual conduct.

They make it harder for the many genuine victims to get justice and moves us back to the days when more victims than not failed to come forward with their allegations.

Whenever anyone (and it happens a lot) asks me if i feel remorse when a guilty man i represented “gets off” I always reply by explaining that it is nothing that i did that allowed the guilty client to get off, rather it is the failure on the part of the police or prosecution that did that. All i do is hold them to account for their own actions and ensure the justice system operates fairly for all, irrespective of guilt.

So in the interests of the innocent, the victims and wider society, the police and prosecutors must act with openness, transparency and good faith every time.