Liam Allan faced allegations of 12 counts of rape and sexual assault; however, on the third day of his trial, 15th December 2017, the proceedings came to a halt. This happened when the police were instructed to provide the mobile phone evidence they possessed, which was stored on a computer disk. The evidence consisted of approximately 40,000 messages, unveiling that the purported victim persistently pursued Mr Allan for "casual sex."
This issue is critically important to all of us. It seems clear now that Mr Allan was always innocent. The innocent person who has their life ruined by an unfair conviction is a terrible occurrence, but someday, perhaps, it could be you. The Rules set by Parliament, in other words, by all of us together, must be assiduously followed.
Can you Trust the Newspapers?
According to a recent publication by the Inspectorate of the Crown Prosecution Service (CPS) and Inspector of Constabulary, a report revealed that more than half (55.5%) of the cases examined exhibited clear problems with disclosure prior to the Defendant being charged. The report also highlighted that prosecutors adequately addressed these issues in only 25% of the cases, while in 38.3% of cases, they were left unaddressed.
Routine flaws with the process included the Police’s failure to make proper lists of material, the CPS’s failure to challenge poor quality schedules and, perhaps most worryingly, the revelation that disclosure by the police to the CPS of material that may undermine the Prosecution case or assist the defence case is rare.
What are the Rules the CPS and Police should follow?
The rules and guidance on disclosure in criminal cases before the Crown Court come from a number of sources, but the most important include the Criminal Procedure and Investigations Act 1996 (CPIA) and Part 15 of the Criminal Procedure Rules.
In short summary: –
- At the start of the case (usually in the Magistrate’s Court), the CPS will serve on the Defendant all the evidence it wishes to rely on at trial to prove their guilt.
- If the Defendant pleads not guilty, the CPS is required to provide the Defendant with any additional material it possesses (specifically, material it does not intend to rely on) if it meets the criteria outlined in Section 3 of the CPIA. This section states that the material must be disclosed if it could reasonably be seen as having the potential to weaken the Prosecution's case or strengthen the case of the accused.
Examples of this type of material include:
- previous convictions of Prosecution witnesses;
- statements or other evidence collected which support the Defendant’s account;
- documents which support the Defendant’s case, such as the texts from the rape complainant in the trial of Liam Allan showing she wanted and enjoyed the sex she later claimed was non-consensual.
Once the CPS has made its initial disclosure, the Defendant may file what is known as a “Defence Statement” which sets out the general nature of the defence and indicates matters of fact and law with which the Defendant takes issue.
Once the Defence Statement has been provided, the CPS must review its initial disclosure of unused material and determine if there is any further unused material in its possession which, in the light of the matters raised in the Defence Statement, the CPS now thinks might be deemed capable of undermining the case for the Prosecution or of assisting the Defendant’s case.
In other words, in Mr Allan’s case, the police and the CPS would have had two bites at the cherry to get their disclosure obligations right.
Disclosure in the Future
The CPS and the police, as expected and disappointingly, are attributing their failures to funding, but this justification is completely baseless.
For those of us with experience, it appears that the Prosecution has long struggled to meet its obligations regarding disclosure.
In September 2011, the Right Honourable Lord Justice Gross conducted a review of disclosure in criminal proceedings and emphasised that improvements in disclosure must be driven and led by the prosecution. He further stressed that the Prosecution must take control of the case and its disclosure requirements right from the beginning of the investigation.
If the police and CPS wish to support their claim that their current shortcomings are a result of the funding, they should provide the previous representations they made to the Ministry of Justice regarding how funding affects their ability to disclose evidence and ensure fair trials. However, it is unlikely that they will readily disclose such evidence.
In my opinion, after years of consistent failure, the only solution is to rigorously enforce the Disclosure Rules. Each failure should be thoroughly investigated to determine if it was an attempt to obstruct justice, and it should be clearly stated in the employment terms of both the police and CPS that such failures may result in dismissal.
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Featured Image: Pexels Licence - Torsten Dettlaff
