Recent reports and landmark trials have shown that police forces around the UK are withholding vital evidence from the defence – evidence that could single-handedly prove the innocence of the defendant.
It has now been revealed through a dossier, obtained by a charity and seen by The Times, that there is a commonly held view amongst the police that a defendant’s legal team is not entitled to see all the evidence. One of the prosecutors in the dossier states: “Officers are reluctant to investigate a defence or take statements that might assist the defence or undermine our case.” The dossier is made up of 14 focus groups with the police. It was also stated in the document that “if you don’t want the defence to see it, then [evidence] goes on the MG6D”. The MG6D is a reference to the list of “sensitive” material that is unused in the case, which the defence are denied access too. It now seems that this list is being abused, used to actively hide evidence from the defence.
Kevin McGinty highlighted the issue courts are now facing, that disclosure of evidence is seen as “more of an administrative exercise” than as a key to justice.
News hit the headlines when Liam Allen, a student at Greenwich university, was “betrayed” by our police service. The betrayal was so unforgivable that the the Metropolitan Police and the Crown Prosecution Service issued an official apology.
When Mr Allen was just 19, he was charged with six sexual assaults and six cases of rape. He was told that he could be facing up to 20 years in jail. It wasn’t until he was 22, that his defence team finally obtained pivotal evidence that had previously been obstructed by the Met Police. As soon as this evidence was presented in court, the entire case collapsed, and Mr Allen was no longer answerable to the charges of a rapist.
The evidence was made up of a colossal 40,000 text messages, sent by the accuser. These messages revealed that the accuser had, in fact, continually and persistently pestered the defendant, Mr Allen, for “casual sex”. Her whole case against him fell apart, the text messages proving that the sex was categorically consensual.
Jerry Hayes, the prosecuting barrister, told the BBC that when he asked if the disk of text messages could undermine the prosecution or aid the defense, the police officer on the case, who was responsible for disclosure, told him, quite simply, “no”. Hayes described the events as “a massive, massive miscarriage of justice”, and put the unnecessarily ruinous and dragged out process down to “sheer incompetence”.
Since these events, Liam Allen has spoken out on various news channels, including Sky and the BBC. Going through the years of mental torture that a false accusation of rape can trigger, Mr Allen now feels very strongly that rape suspects should have a right to anonymity, as in his case, they too can be victims.
We have also seen other rape cases fall through due to belated revelations of integral evidence. Samson Makele, 28, was accused of raping a 35-year-old woman after the Notting Hill carnival in August 2016. A year and a half later, Mr Makele was cleared of all charges when pictures of the two cuddling in bed together were found on the accuser’s phone. Again, the evidence was initially withheld, and described by the CPS as “nothing of interest”. Mr Makele’s solicitor, Paris Theodorou, had to obtain permission to spend over £1000 through the Legal Aid Agency to conduct an independent investigation to examine the contents of the accuser’s phone.
Isaac Itiary, in yet another case, was charged with the rape of a minor. Just in the same way as the previous two cases, the contents of a phone owned by the complainant was withheld, and then later revealed. The contents of the phone, when it was finally given as evidence, completely undermined the prosecutor’s case and it collapsed.
Reacting to this pattern of stifled innocence, Commander Richard Smith told us earlier this year that 600 more cases of rape and sexual assault will be reviewed by an allotted group of police officers.
Questions are rising. Why has a culture of withholding evidence been allowed to breed and multiply across the police sector? How many more cases will be dissolved off the back of these investigations?
It is likely that more rape and sexual assault cases will be dropped, but more investigations are essential in order to fully understand why the defence is put at such a disadvantage in cases as important and life-defining as these.