Rough Justice

23 May 2018

“People think that miscarriages of justice are rare and exceptional....but they are routine.” Alarming and, some might say, prophetic words, from Dr. Michael Naughton, in 2014. He’s a leading legal academic and founder of the UK innocence project. The project spawned 36 similar organisations throughout the UK, all of them working on behalf of those who claimed that they were innocent, despite a guilty verdict. Four years’ on, Dr. Naughton’s concern that: "innocent people can be, and (still) are wrongly convicted", is prompting fears that our existing legal system, may be fraying at the edges.

Investigations that have prompted headlines such as; ″Police are ‘trained to hide vital evidence’”, from The Times, this month, and, ‘Police chief admits ‘cultural problem’, with evidence disclosure’, from The Guardian, are worrying. If key facts and stats have not been passed on to the lawyers by the police; (I am not assuming or implying any criminality on the part of the police or the Crown Prosecution Service, by the way), at best, time and money are wasted, all those involved in the trial go through huge emotional distress, and a case is abandoned. At worst, an innocent man/woman is wrongfully convicted and ends up doing time. Either way, justice is not the outcome.

At the end of last year, two significant trials collapsed within days of each other. Liam Allan  and Isaac Itiary’s, court proceedings were cut short because crucial undisclosed digital evidence undermined the case against them. In the Allan case, police had reportedly looked at thousands of ‘phone messages’ when reviewing the evidence, but had failed to disclose (for whatever reason), the details to the prosecution and defence teams. These were ‘phone or text messages’ between the complainant and her friends. They cast doubt on the rape allegations made against him.

In relation to Isaac Itiary, The Crown Prosecution Service (CPS), said “new material”, provided by Scotland Yard, meant that his case could not proceed either. This, “new material” was a series of significant text messages that, again, were not disclosed. These 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. If convicted, he faced many years in prison, as well as a lifetime on the sex offenders register.

In the cases I’ve mentioned, as you might expect, all kinds of people have raised all kinds of questions about the role of the police, and the CPS. The conspiracy route, of course, is a well worn one. However, perhaps it’s more straightforward. As an old tutor of mine used to say; ‘think of the obvious first’. Is it not possible, that funding, or the lack of it, is the most likely reason for these court room clangers?

One of the reasons that, on balance, I didn’t support a ‘Leveson Part Two’, was the hefty 5.4 million pound cost of part one. Part two was also to ‘have been broadened out to include data protection and “fake news” on social media’. Currently, and understandably, we’re all up in ‘Analytica’ arms about “stolen” personal data. However, significant cuts over the last eight years, have meant that our legal system is fraying at those edges and our police are significantly thinner on the ground. Are there the resources, as they stand now, to crack down on the dodgy digital selfie stealers as well as everything else?

Since 2010, over 100,000 police have been axed, (Home Office figures) and the CPS budget’s been cut by 25%. If we want our law enforcers to be ‘social media minders’, tackle the recent increase in violent crime, and perform their ‘protect us all’ day jobs, then it’s hard to see how cutting their funding, makes sense. Surely they need a cash injection, to keep them fit and well for what seems to me to be ever increasingly demanding and complex roles?

To their credit, the police have been quick to acknowledge their mistakes. This was the response from Surrey’s chief constable, Nick Ephgrave: “We have had a cultural problem with disclosure, where it is too often seen by police officers as a thing to be done at the end of an investigation.... Changing this mindset is an immediate challenge for us.” An overall police pledge, to appoint disclosure champions in every force backs up this intention. A CPS spokesperson said “Getting this right is a priority, and along with the police and other criminal justice partners we are working to improve how we fulfil these vital disclosure obligations.”

Of course this evidence disclosure discussion won’t disappear overnight, and neither should it. However, despite what the cynics and critics say, there are still those of us, who are proud to be part of the legal profession. Every legal professional I know wants those who work on the front line, and in the court system, to get the resources they need. Our democracy rests on being able to trust the police and the state. I hope the financial decision makers realise this too. No-one can do their job with one arm tied behind their backs.

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About the Author

Jenny Afia

Partner

Jenny helps the world’s most successful people have more privacy and protect their reputations. Her clients are mainly talented individuals, particularly from the entertainment, technology and financial sectors.

646 934 6219