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Prosecutions and defence cases are collapsing because of disclosure problems, says Angela Rafferty QC. Photograph: Dominic Lipinski/PA
Prosecutions and defence cases are collapsing because of disclosure problems, says Angela Rafferty QC. Photograph: Dominic Lipinski/PA

Justice system at 'breaking point' over digital evidence

This article is more than 6 years old

Defence experts say public faith is being corroded by failures to disclose material

Public faith in the fairness of trials is being eroded and the justice system is approaching “breaking point” due to failures to disclose key digital evidence, the head of the criminal bar has said.

The comments from Angela Rafferty QC come as a leading forensic scientist, Dr Jan Collie, exposes the difficulties defence experts have in obtaining downloaded material from police and prosecutors, including dealing with “games” officers play in pursuit of convictions.

The collapse of a series of rape cases has shaken public confidence. The Commons justice select committee is to hold an inquiry into disclosure problems which according to its chair, the Conservative MP Bob Neill, have led to “inappropriate charges, unnecessary delays in court proceedings and potential miscarriages of justice”.

A joint report by the police and CPS inspectorate last year warned that until officers and prosecutors take disclosure responsibilities more seriously, “no improvement will result and the likelihood of a fair trial can be jeopardised”.

Rafferty, who regularly prosecutes, said: “The justice system is approaching breaking point. It’s beginning to happen on both sides, prosecution and defence. All of these cases collapsing because of disclosure [problems] are a sign of that.

“The danger is that jurors’ faith in the justice system is being eroded which lets down all of the witnesses in a case.”

Rafferty said: “Cost-cutting and outsourcing has put the administration of justice at risk ... I don’t think it’s bad faith by the police. They have been under-resourced. They are swamped. In some of my cases it’s the police who have revealed material that’s helpful to the defence.”

Collie, the head of Discovery Forensics in London who mainly works for defendants, said: “The odds are stacked against the defence in many ways. We rarely get access to the actual piece of equipment. In the past I could go to the police station and see a phone or a computer and physically check it’s the right piece. Now everything comes prepackaged and is handed over on a hard drive or USB stick.”

Dedicated police digital forensic units have disappeared, she said. “Now I am trying to arrange access to exhibits with a police officer who is not a technical specialist. A lot of officers are given very minimal training on how to download a phone or tablet so it’s hardly surprising they often cock it up.”

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Collapsed rape prosecutions

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December: Liam Allan

The first case to be abandoned due to the failure by police to hand over crucial digital evidence was that of London student Liam Allan, 22, in December. Allan was charged with 12 counts of rape and sexual assault, but his trial was abandoned after police were ordered to hand over phone records that should have already been provided to the defence.

December: Isaac Itiary

Shortly before Christmas, an alleged child rapist, Isaac Itiary, 25, was cleared at Inner London crown court when the prosecution offered no evidence. Material recovered from the phone of the complainant by police was only handed over to defence lawyers shortly before it was due to come to trial.

January: Oliver Mears

In January, Oliver Mears, 19, a student at Oxford University, was charged with the alleged rape of a teenage woman in 2015 following a party. He claimed the sex was consensual but was charged with rape. He spent two years on bail until social media and a diary were examined by his lawyers. 

January: Samson Makele

In mid-January, the CPS offered no evidence in the case against 28 year old Samson Makele, from Hackney, London, after his solicitor eventually obtained his mobile phone and discovered photographs of his cuddling up in bed with the complainant, undermining her version of events.

Photograph: David Mirzoeff/PA
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Collie recalled a case in which a 15-year-old schoolboy was sent an unsolicited, illegal pornographic video on his phone through a group chat. “It came up and he deleted it,” she said. Nonetheless the youth was kept out of school during the investigation. “After the case I was shocked by the attitude of the officer who was really unhappy because he hadn’t made the charge stick. How can you be unhappy about not criminalising a 15-year-old?”

The material downloaded depends on the setting used by any investigating officer. “There’s potential for me [as a digital forensics expert] to find more, but if you accept the other side’s output reports, you are at the mercy of what they have chosen,” she said.

“We had a case of a woman who said she was raped. The police had not looked at her phone. We eventually got [the complainant’s mobile] and there was a message saying: ‘Thanks for the great sex’.

“[The police] would have been quite happy to take her word for it. The man would have gone to jail and lost his job. The charge was dropped on the first day in court. The prosecutor offered no evidence. Rape is an extremely serious matter but that doesn’t mean you shouldn’t look at both sides of the argument.”

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How disclosure issues have evolved

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Awareness of the problems caused by failing to disclose crucial evidence to the defence was heightened by a string  of miscarriages of justice that were exposed in the 1990s.

Notable among them was the case of Judith Ward, wrongly convicted for a multiple murder inflicted by an IRA bombing of an army coach on the M62 in 1974.

The prosecution had failed to hand over psychiatric and forensic evidence which should have established her innocence at the original trial. Quashing her conviction, the court of appeal described non-disclosure of evidence as “a potent source of injustice.”

Some question whether there is an inherent contradiction in the role of police and prosecutors since they are expected to discover evidence that proves the case against a suspect yet also find inconvenient truths that might exonerate the same person.

The volume of material being handled by investigators has been subject to hyperinflation since the advent of digital media. Even routine theft or assault cases can involve mobile phone data, emails, CCTV cameras or laptops. 

critical report by the police and Crown Prosecution Service Inspectorate last year noted that: “The general feeling amongst police officers is that they are being asked to hand over more unused material than is required in law to ensure the trial proceeds.”

Self-service kiosks have been installed in many police forces to enable frontline police officers to download data from mobile phones and other devices, rather than  relying on small number of specialist officers. Privacy International and others have expressed concerns about how sensitive data is handled or preserved. 

Steven Littlewood, of the FDA trade union which represents prosecutors, has said: “The nature of the unused materials provided to CPS prosecutors by police has transformed in the last 20 years from a page or two of paper to thousands of pages worth of text messages, emails and social media communications.”


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Collie was infuriated by one email she received from the CPS which stated that this is the material “which the prosecution deemed necessary”. She said: “What they ‘deem to be necessary’ is a very high handed sort of comment. It should be about making a fair assessment of all the evidence available not just the snippets which serve their side of the argument.

“It’s difficult to say how much is deliberate and how much is incompetence. A certain percentage is people playing games and messing about because they want a conviction. Where’s the presumption of innocence we are supposed to rely on?”

The attorney general, Jeremy Wright QC, has denied that the problem down to lack of resources. He commissioned a review into disclosure procedures, guidelines and legislation in December, which is due to report in the summer.

The Ministry of Justice, which has endured deeper cuts than any other Whitehall department, declined to comment about disclosure or whether it had responded to the forensic science regulator, Dr Gillian Tully, who last year called for increased legal aid funding so that defence lawyers can scrutinise prosecutions.

Sara Thornton, the chair of the National Police Chiefs Council, said in a blogpost published on Monday: “We are challenged by [the] sheer volume of data we all hold in 2018, and therefore the many, many more potential lines of inquiry.

“So we must cooperate, acting with fairness and impartiality, and this might mean practical conversations with complainants and suspects at the start of the process to ask them ‘is there anything in your phone that’s relevant to the case?’ ... The idea of handing all evidence to the defence , [however] won’t work – it would go beyond what is reasonable and proportionate.”

The CPS is conducting an urgent review of all current rape and sexual assault cases in England and Wales in relation to digital disclosure.

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