Disjointed system in need of urgent reform for fair trials

POLICE investigations can generate huge amounts of material, much of it irrelevant.

Who gets to see this “unused material” is at the heart of the recent disclosure failures.

The police have enormous powers that a defendant does not, such as sealing off a crime scene and conducting house to house inquiries.

This difference in powers means that, in the interests of a fair trial, at least some of this potentially valuable information needs to be made available to the defence.

At the moment all evidence that the prosecution intends to use at trial is made available to the defence so that they know the detail of the accusation being made and have time to prepare their defence.

The nominated disclosure officer is then supposed to list all the remaining material on one of the schedules of unused material.

Each item should have a code showing whether it might undermine the prosecution case or support the defence. This can be a bureaucratic chore but it is essential to avoiding miscarriages of justice. The prosecutor then looks at the schedules, can ask to see any item, then decides if the defence should see it or not. This is a disjointed system. The police are being asked to think how a defence solicitor might view the material, even though they have just charged the defendant and are not legally qualified. The legislation that governs disclosure was passed in 1996 – changing technology has transformed the volume of material in each case as a mobile phone can generate thousands of images and messages that may need to be considered.

Police, prosecutors and defence lawyers have too many cases and too little time.

Defence barristers (currently taking industrial action over their appalling rates of pay) are not paid for reading through potentially hundreds of pages of unused material to look for evidence that might show their client’s innocence.

Where corners have to be cut, this is one of the areas that may slip.

There have been multiple reviews of disclosure failings and a Parliamentary committee is looking at it again.

Several options have been suggested from giving the defence access to everything (which carries some risks too, to improved training, or creating a new agency to review the material.

These cases show that any of us could find ourselves under arrest through a moment’s mistake or a malicious allegation.

A properly resourced criminal justice system protects us all. Dr Hannah Quirk PHD, senior lecturer at the University of Manchester