The Lockerbie Case: Prosecution disclosure

Thursday 17 May 2012

Prosecution disclosure

The trial of Ratko Mladic at the International Criminal Tribunal for the former Yugoslavia in The Hague has today been suspended because of the prosecution’s “significant disclosure errors”. The presiding Dutch judge, Alphons Orie, said the judges were still analysing the "scope and full impact" of the errors.

In the Megrahi case, the bulk of the reasons found by the Scottish Criminal Cases Review Commission for holding in 2007 that the conviction might have amounted to a miscarriage of justice related to breaches of the prosecution’s duty of disclosure. And John Ashton’s book Megrahi: You are my Jury has provided further examples of material that ought to have been disclosed by the Crown to the defence, but was not.

Just what is it about the rules regarding disclosure to the defence of evidence that could assist the accused that prosecutors in high profile criminal cases find so problematical? Is it possible that prosecution culture is so antipathetic towards the concepts of fair play and equality of arms that the rules embody that prosecutors deliberately seek to evade them? Surely not.

2 comments:

SM17 May, 2012
"Is it possible that prosecution culture is so antipathetic towards the concepts of fair play and equality of arms that the rules embody that prosecutors deliberately seek to evade them?"

I'd be grateful if somebody came up with another explanation. I am out of ideas myself.
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Ruth17 May, 2012
SM
I can give you an answer but this is based only on my knowledge of VAT/MTIC/carousel fraud in which billions are taken out of the country. One main feature of these cases has been failure in disclosure, which has led to many large cases collapsing. In one particular case I’m familiar with, which involved the conjoining of two cases, there is evidence that the principal of the smaller fraud was portrayed as the principal of the larger fraud to hide the identity of the latter. After the trial, evidence was found to have been fabricated by the prosecution. If the defence counsel had really pushed for full disclosure there is little doubt the trial would have collapsed. These two frauds had links with many other frauds which took place, at the same time and after.

The inevitable conclusion must be that the state has an involvement in these frauds, and to protect this it has to curtail disclosure or close down the case.
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