The right to a fair trial is one of the fundamental principles of a just society, protecting anyone facing criminal or civil charges with a number of enshrined guarantees.
These include the assurance that the hearing will be held in public, by an independent and impartial court or tribunal, and within a reasonable time. A fair trial also affords the defendant full access to the documents and evidence in the case, regardless of whether or not that undermines the prosecution’s position.
However, data uncovered by the BBC suggests that police and prosecutors are increasingly failing to meet the requirement of disclosure, resulting in rising numbers of collapsed cases – at a huge cost to the public purse and to the emotional wellbeing of those wrongly charged.
The number of prosecutions in England and Wales that were thrown out over the last two years has leapt by 70% – up from 537 in 2014/15 to 916 in 2016/17.
In December, the trial of Liam Allan, who faced 12 counts of rape and sexual assault, collapsed when it emerged evidence on a computer disc – which police had looked through – showed messages from the alleged victim pestering him for “casual sex”.
And earlier this month, a rape charge against Oxford University student Oliver Mears was dropped on the eve of his trial after a diary that supported his case was uncovered.
The human cost to both men will have been immense and made worse by suffering the stigma of being named as alleged rapists with their names wrongly attached to a heinous crime.
Worse still is the serious potential for – and the likelihood of – miscarriage of justice. Jerry Hayes, the prosecuting barrister in Liam Allan’s case, fears innocent people are “probably” being jailed because of disclosure failings: “It may have been some time ago and it may well be that evidence is destroyed. Their lives are now destroyed.”
Criminal barristers say the problem of non-disclosure of relevant material is widespread and not restricted to sex offence cases.
Robin Murray, the former vice chair of the Criminal Law Solicitors Association, said 99 percent of lawyers the group surveyed last year had encountered disclosure failures, which, he added, “showed there are systemic evidential disclosure failures across all different crimes”.
So what’s causing the problem?
Shadow Attorney General Shami Chakrabarti points the finger at austerity in the justice system, adding that the increasing prevalence of social media and text messaging has made the handing over of evidence to lawyers an increasingly labour-intensive process.
Angela Rafferty QC, chair of the Criminal Bar Association, echoed those sentiments, blaming the problem on a “lack of investment, training and attention to the criminal justice system”. She said barristers face “a daily struggle in respect of disclosure, delays and all the other disastrous consequences of a system that is openly described by MPs as at breaking point”.
Meanwhile, a report issued in July by HM CPS Inspectorate and HM Inspectorate of Constabulary found that officers were “often ignorant” of their disclosure responsibilities. “Non-compliance with the disclosure process is not new and has been common knowledge amongst those engaged within the criminal justice system for many years,” the damning report concluded.
It all raises troubling questions about the fairness of the justice system and its ability to cope with evidence in a rapidly changing world.
For too long, disclosure has been seen by police and prosecutors as an administrative inconvenience rather than an integral element of the process. That must change, no matter how difficult the task, if we are to protect the basic principles of justice at the heart of a fair society.