The non-disclosure scandal rumbled on this week with charges dropped in two further alleged rape cases.
Connor Fitzgerald had spent three months in custody because police failed to disclosure text messages in which the complainant (who has anonymity for life) fundamentally undermined her allegation against him. One of particular note read: “I’m not just going to mess up his life, I’m going to ruin it lol.”
In the other alleged rape case, a seventeen-year-old male who cannot be named for legal reasons was also cleared of rape after his defence team uncovered key evidence that proved his innocence. It was claimed to have been “missed” by the police and prosecution. Attempting to distance itself from culpability, the CPS publicly blamed the police for not discovering thousands of social media messages that proved the accused was not guilty.
But, the problem of non-disclosure is not restricted to alleged rape cases.
In an alleged bribery case that was reported this week, hundreds of emails that proved that Clive Steer was innocent failed to be disclosed by Surrey police and the CPS even though they were contained on his laptop, which he handed over to the police when the raided his house to prove his innocence. Most unusually, when issuing the acquittal the Judge ordered the CPS to write to the court and Mr Steer providing a full explanation of its failings in the case.
It was also reported this week that Petruta-Cristina Bosoanca, accused of people trafficking and prostitution, who was held in custody for more than 13 months before her trial collapsed, gave birth whilst in prison on remand. The case was thrown out by the Judge on the grounds of a “wholesale failure” of disclosure of evidence that undermined the allegations against Bosaonca.
Finally, non-disclosure was also involved in a major drugs trial this week when a judge threatened to drop the charges against the two defendants when the police refused to disclose evidence to his defence, arguing that they could not afford a £14 memory stick to put it on.
It is uncertain how many other cases this might have a bearing on, but judging from the comments of legal practitioners on twitter it is unlikely that this case is a one off incident.
This signals the importance of collecting any and all information that may have a bearing on alleged criminal offences.
Indeed, if police officers fail to collect all potential evidence on memory sticks then potentially exculpatory evidence may not officially exist to be disclosed to the defence team at all.
It works the other way, too, when evidence of the guilt of an accused does not officially exist, either, when it is not collected and retained, and the primary source of the information is lost or destroyed.
These cases add to my article last week about the current disarray of the (non)disclosure regime. It called for the immediate replacement of the DPP, Alison Saunders, on the grounds that she is not fit for purpose, and the setting up of a royal commission to get to the root of the problem and find solutions so that trust and confidence in the criminal justice system can start to be restored.
It has long been known that non-disclosure cases are a routine feature of an adversarial criminal justice process that is biased against the accused from the outset.
It is, equally, clear that the police and CPS cannot be trusted with the control of what is and what is not disclosed.
This calls for the urgent setting up of a new independent disclosure system that does not have an interest in the conviction or acquittal of an accused, which provides full open file disclosure of everything collected in criminal investigations to both sides in the interests of fairness and justice.