In this sexual offences update, Sarah Elliott QC provides practical advice on steps defence lawyers may wish to consider taking following the DPP announcement that all live rape and serious sexual assault cases will be reviewed by senior prosecutors. Paul Taylor also provides his insight into the potential impact of the current disclosure review on appeals for convicted clients.
|Sarah Elliott QC
In light of the recent and very well publicised series of cases which, because of failings in disclosure, have collapsed either at or just before trial, the DPP has announced that all live rape cases and serious sexual assault cases will be reviewed by senior prosecutors to make sure that they are satisfied disclosure obligations have been met.
But what does this mean for your current clients charged with sexual offences? This has been the subject of much discussion amongst the sexual offences defence team at Doughty Street, and we offer some quick practical tips on issues you may wish to consider.
First, is your client’s case sufficiently serious, as far as the CPS are concerned, that it should be subject to the 'automatic' review announced by the DPP? If you don't know whether this is being done, write to the reviewing lawyer to get written confirmation that the case has been or is being reviewed.
Secondly, do you know who is carrying out the review? Different CPS areas appear to be deploying different resources; in some areas prosecution trial counsel are being asked to review the case, (without additional funding to do so), but in others the task is being carried out by CPS lawyers. Disclosure juniors may also be instructed by the CPS in any case where there is likely to be an increased amount of material, for example in some historic cases, or where the trial date is close.
Our view would be that it is always best for trial counsel to assess the material, or alternatively a disclosure junior who should be in court during the trial in order to comply with the on-going duty to disclose.
One of the problems is undisclosed material should be recorded on an MG6C (schedule of unused) or MG6D (sensitive schedule) but be aware that some police forces use a third schedule of ‘non relevant’ or ‘retain not reveal’ material - which purports to be a schedule of administrative items, but in our experience may actually contain important information from witnesses - which should be assessed for disclosure by a lawyer. You may have to push for this to happen!
Thirdly, if you have cases in your files which have, since charge, continued to worry because you think they are so evidentially weak, or perhaps for other reasons you think just shouldn’t be prosecuted, now is the time to make or renew your representations about whether the Full Code test has been passed. Decisions to prosecute ARE being reviewed, and by making those representations you may well find that closer scrutiny leads to a great result for your client.
And finally what about cases where clients have already been convicted? The CPIA of course only applies to cases up to the point of conviction but that does not mean the CPS disclosure duties are extinguished as Paul Taylor sets out below:
How will the latest non-disclosure debacle affect appeals?
On December 15th 2017, The Guardian reported that “Scotland Yard is conducting an “urgent review” after a rape trial collapsed owing to what the prosecuting barrister on the case called “the most appalling failure of disclosure” he had encountered. The proceedings against Liam Allan…were halted… after it emerged that police had belatedly disclosed phone messages between the complainant and her friends that threw the case into doubt.” On 19th December 2017 The Guardian reported that “The Metropolitan police is to review scores of sexual assault cases after potential errors led to the collapse of a second rape case in the space of a week….The Met said material had not been given to the defence team of the suspect, Isaac Itiary, until his lawyers asked for it…” “After the latest case the Met said: “As a precaution, every live case being investigated by the child abuse and sexual offences command, where the MPS [Metropolitan Police Service]…, is being reviewed to ensure that all digital evidence has been properly examined, documented and shared with the CPS to meet obligations under disclosure.” On the weekend the CPS announced it was reviewing all live rape and sexual offence cases.
So far, so horrendous. But at least the CPS are now reviewing all “live” cases in this area. But what of the convictions in completed cases that may have been tainted by similar non-disclosure? At the moment, these are not included in the “live” case review and attempts to trigger investigations appear to lie with potential applicants.
The difficulty here is that the CPS may send a negative response to any such request based on R (Nunn) v Chief Constable of Suffolk Constabulary  2 Cr App R 22. In this case the Supreme Court considered a case in which the claimant had been refused leave to appeal against his conviction and had then sought all the police records of the investigation [Para 6]. Lord Hughes stated that “it is plain …that what the claimant seeks is a full re-investigation, and access from time to time to whatever he thinks necessary to review any point which he wishes…” [Para 14. See also para 38]. Such inquiries in Nunn would require huge resources with officers “diverted to the task from other investigations.” [Para 33]. The Supreme Court considered the following certified question: “Whether the disclosure obligations of the Crown following conviction extend beyond a duty to disclose something which materially may cast doubt upon the safety of a conviction, so that [the Chief Constable] was obliged to disclose material sought by the claimant in these proceedings.” The Supreme Court dismissed the appeal and, in relation to post conviction requests for disclosure, stated:
- Although the common law duty of disclosure applied to appellate proceedings, and prosecutors were obliged to disclose any relevant material which was not already known to the defendant and which might assist him in the proceedings, such disclosure did not involve a re-performance of the entire disclosure exercise.
- Similarly, where the trial process was complete, the common law did not recognise a duty of disclosure and inspection which was the same as that prevailing prior to and during the trial. The position of a convicted defendant was different in kind from that of a defendant at trial. The latter was presumed innocent until proven guilty and might defend himself in any proper way in answering the charge against him. The former was presumed guilty and had had that opportunity.
- The public interest until conviction was in the trial process being as full and fair as possible. After conviction, and apart from the question of its safety, the public interest was in finality.
- There was no indefinitely continuing duty on police or prosecutors to respond to whatever enquiries the defendant might make for access to case materials to allow re-investigation.
Crucially, however, in the context of the current discussion, the Supreme Court stated that where, after the conclusion of the proceedings, material came to light which might cast doubt on the safety of the conviction, the prosecutor was obliged to disclose the material to the defendant unless there were good reason not to do so, and, further, where there was a real prospect that further enquiry might reveal such material, there was also a duty to make that enquiry.
In light of the above it is submitted that the CPS would not be justified in issuing a blanket refusal to requests to carry out investigation of the unused material where the request is more than just a “fishing expedition”, and instead identifies the basis of the request with as much particularity as possible. As the Supreme Court stated a “realistic evidential foundation” should be laid to show why the conviction may well be unsafe. Following the two recent cases in which late disclosure led to the collapse of the trials, it is arguable that the CPS is at least under a duty to investigate all the cases relating to the particular disclosure officer(s) involved. These may be thought to provide “a real prospect that further enquiry might reveal [relevant] material.”
In addition, it is arguable that if the current review of “live” cases identifies evidence relating to other convictions which might afford arguable grounds for contending that that conviction was unsafe, “there can be no doubt” that the CPS and police have a “duty to disclose it to the convicted defendant.” [Para 35].
Another difficulty in these cases is that an applicant may not have enough material – without further disclosure - to draft arguable grounds. An alternative route may be an application to the CCRC to assist. However, they too will need to be persuaded that the request is more than a speculative, fishing expedition.
As a footnote, the CCRC is aware of the issue and, following contact by the author, has stated that (8th January 2018):
“The Commission has often cited material non-disclosure as the single most common cause of our referring cases for appeal. We drew particular attention to non-disclosure in our 2015/16 Annual Report and in that year our Chairman wrote to the Attorney General, the Solicitor General, the Director of Public Prosecutions and the National Police Chiefs’ Council urging action. We were also directly involved in work on the Making it Fair report which was published jointly last July by HM Inspectorate of Constabulary and HM Crown Prosecution Service Inspectorate.
Since the media spotlight fell on non-disclosure in criminal cases in late 2017, we have again been in contact again with the Metropolitan Police and the Crown Prosecution Service about disclosure problems generally and more immediately to check whether there are any particular cases we should look at again.”
If you think any of our sexual offences barristers may be able to help you or your clients, or indeed if you have any questions about the issues raised in this bulletin, please get in touch with our Senior Practice Manager for crime Tom Street on 0207 404 1313.