The publicity being given today to the troubling case of Liam Allan - the young man acquitted of rape following mismanaged disclosure - is to be celebrated. It is, however, by no means an isolated case: lawyers who act for defendants facing criminal charges (particularly in cases involving sexual offences or those arising from relationship break-ups) have long been concerned at the disinterest shown by the police and prosecution in properly considering mobile phone and social media material.
In the last year alone, we have successfully represented several clients where material obtained only after repeated requests to the police or CPS (or more worrying still as a result of us resorting to conducting our own investigations) led to acquittals. In one of these cases, the trial judge commented that it was “the tenacity of the defence that led to the uncovering of material that was crucial”.
All very gratifying of course. But it ought to be axiomatic to a proper system of criminal justice that where the state brings a prosecution against a private individual, and has in its possession material suggestive (and sometimes far more than that) of innocence, that material should be considered by the police and prosecution and – if in the light of that consideration a decision to proceed is taken - disclosed to the defence. As matters currently stand, however, it is too often left to the defence to fight for disclosure obligations to be met. In a landscape of ever-shrinking legal aid (which would not, for example, cover many of the enquiries we typically conduct), it is simply not possible for many defendants to have a fair trial.
Almost as troubling as the tendency to neglect disclosure obligations is the extreme reluctance of prosecuting authorities to properly review cases – and abandon them - when material which eventually comes to light casts matters in a starkly different light. It seems inappropriate to describe Mr Allan as “lucky”, but at least in his case a diligent prosecuting barrister decided to offer no evidence and no trial took place. Sadly, far more common is a shoulder-shrugging, “let the jury decide” approach from the CPS in circumstances where it is clear no realistic prospect of prosecution exists (the test to be applied when bringing a criminal case). It is hard to escape the conclusion that the drive to “speak for victims” means that unmeritorious cases are prosecuted, carrying with them the very real risk of miscarriages of justice.
One can only hope – though with little optimism – that the investigations now underway by both the police and the CPS might herald the start of a culture change and a recognition that the best way to achieve public faith in the criminal justice system is to ensure it is fair and just for all.