Atrocious failures blight our justice system

[What follows is excerpted from an editorial in today’s edition of The
Observer. The  “atrocious failures” referred to in it apply equally in the
Scottish prosecution system and, as the Megrahi case demonstrates
only too clearly, extend beyond the police to the prosecution service
itself.]

Atrocious failures blight our justice system. Should disclosure decisions be taken

away from the police?

The right to a fair trial is a linchpin of the rule of law and a free and democratic

society. So it is right that the collapse of two rape prosecutions in recent days,
both due to police failure to disclose relevant material to the defence, has cast
a fresh spotlight on whether that right is under jeopardy.

The obligation of police and prosecutors to disclose unused material that might

support the defence case is critical to ensuring a fair trial. Indeed, a failure to
disclose relevant information to the defence team is one of the most common
causes of miscarriages of justice. In the cases of Liam Allen and Isaac Itiary, both
accused of rape, the Met police failed to hand over relevant text messages to
defence lawyers in a timely fashion. When this finally happened, both cases were
dropped, but not before Itiary had spent four months in jail awaiting trial and Allan
two years on bail. The attorney general rightly labelled this an “appalling failure” of
the criminal justice system.

There are competing narratives about what lies behind this. Some hold up these

cases as a sign that the pendulum has now swung the other way in a police force
once notorious for its failures to take rape allegations seriously. (...)

But it is irresponsible to imply police failures in disclosure are a problem specific to

rape prosecutions. In July, a joint report on disclosure by the police and
prosecution service inspectorates raised concerns about disclosure practices within
the police and CPS across all types of cases. (...)

Others have argued this is about austerity: police and CPS budgets have been cut

significantly since 2010 and the number of police officers has declined by more
than 20,000 even as recorded crime has increased. Not only that, the government
has instituted massive cuts to legal aid.

There is no question that our criminal justice system is becoming more and more

stretched. The result is that access to justice is impeded for growing numbers of
people.

But the story does not start and end with government cuts. Rules around
disclosure were first introduced in the 1990s after a series of high-profile

miscarriages of justice, such as the wrongful convictions of the Birmingham Six.
Twenty years later, the amount of data involved in criminal cases has ballooned,
thanks to the proliferation of computers, tablets and mobile phones.

This makes the investigation and prosecution of criminal offences far more complex

and time-consuming than ever, while the massive volume of data confronting the
police in all sorts of cases makes meeting their obligations on disclosure
increasingly difficult. The implications of this accelerating burden on the criminal
justice system have never been properly debated; rather, they have been shoved
into the “too difficult” box.

Police cultures also impede disclosure. The role of the police is to act as an

impartial investigator; it is the CPS whose job it is to prosecute a case. But the
nature of police work means detectives and officers have to develop theories about
their cases. Some officers may wilfully conceal evidence that undermines the case
they have constructed. But basic human psychology – none of us much likes to be
proved wrong – means that many more may be blinkered by unconscious bias
that draws them away from evidence that undermines their case theory. This has
led some to question whether it is right to leave disclosure decisions to the police.
At the very least, the police need proper training, but it has been found to be
inadequate across the majority of police forces.

The police wield immense power over our lives. From Hillsborough to Stephen

Lawrence, the Birmingham Six to child sex abuse in Rotherham: the past tells us
that when they are not adequately held accountable for that power, the result can
be deep injustices of the very worst kind.

Accountability has increased significantly in the past 20 years, with the

establishment of the Independent Police Complaints Commission and independent
inspectorate. But police failings on disclosure have been swept under the carpet
for too long, even as they are further aggravated by austerity and the sheer
volume of data in the modern world. If we continue to ignore them, we will pay
the ultimate price: the guarantee of a fair trial.