Police Disclosure
Police disclosure is an essential element of the criminal justice system in ensuring that all the relevant evidence is shared and that the parties have a fair trial. However, following the recent collapse of several rape trials in England and Wales due to the failure of the police to disclose exculpatory evidence, the police has been criticised for treating disclosure of evidence as a mere ‘administrative task completed the end of an investigation’.[1] These grave mistakes made by the police have highlighted gaping flaws with the current process for the disclosure of evidence and cost the real victims, the innocent defendants, precious years of their lives trying to prove their innocence.
Liam Allan
At the young age of 22, Liam Allan was charged with 12 counts of rape and sexual assault.[2] Even though Allan had insisted that the sex was consensual and that there were messages on the alleged victim’s phone to prove his claim, the Officer in Case (OIC) had failed to disclose these messages to the Prosecution and the Defence. Due to the failure of the police to disclose this crucial evidence, Allan had to endure the intense ordeal of being on bail for almost two years. It was only after persistent requests from the Prosecution before the messages were disclosed, leading to a review of over 57,000 lines of message data.[3] In this sea of information, there was crucial exculpatory evidence of the alleged victim sending Allan numerous requests for sex and sharing her fantasies about rape.[4] This led to an urgent investigation into the case, ultimately leading to the collapse of Allan’s rape trial and a public apology to Allan from the Director of Public Prosecutions.[5]
The obvious question: How could this have happened?
Over the past few years, there have been significant cuts to the budgets and resources across the criminal justice system.[6] As eloquently put forth by Dr Tom Smith in his review of the criminal procedure and the problems with police disclosure, a cut in resources may mean that the police may no longer have the time and personnel needed to perform the crucial but time-consuming duty of conducting a thorough review of the evidence.[7] With fewer police officers available to review the material and identify evidence, this would introduce the danger that exculpatory evidence may be missed out and the accused may not have a right to a fair trial.
Furthermore, not only does the police have to review the physical evidence, the police now also have the time-consuming and emotionally draining duty of sieving through a massive amount of electronic information. The enormous quantity of the evidence that needs to be thoroughly reviewed may increase the likelihood of exculpatory evidence being left undiscovered. This is supported by Dame Elish Angiolini, the former Lord Advocate of Scotland, who has suggested that the advent of social media and the increased use of technology may add on to the massive workload of the police.[8] Gross LJ has also raised this troubling issue in his review on police disclosure in criminal proceedings, stating that the “explosion of electronic materials” in criminal investigations has made it “physically impossible or wholly impractical to read every document on every computer seized”.[9] This problem is exemplified in Allan’s case, where the crucial, exculpatory evidence was found in the sea of over 57,000 lines of messages that the police had dismissed to be irrelevant.
Unfortunately, in Allan’s case, the combination of a reduced budget and the increased volume of material to review may have manifested in an evidential workload that is so excessive that it may have reduced the effectiveness of the police in conducting a thorough review of the evidence.
Where do we go from here?
While Allan’s case may have ended, it has acted as a catalyst in revealing the range of chronic problems in the criminal legal system for the disclosure of evidence. The grave mistakes of the police in Allan’s case have added momentum to calls for a review on the disclosure of evidence, resulting in an inquiry by the House of Commons Justice Committee into the disclosure of unused material in criminal cases.[10] While the review does not propose any fundamental changes to the legislation, it has emphasised that there needs to be “a shift in culture towards viewing disclosure as a core justice duty”, the “right skills and technology to review large volumes of material” and “clear guidelines on handling sensitive material”.[11] In addition, to tackle the problem concerning the lack of resources, it has also been suggested that advocates could be funded to look at unused material and complete the disclosure exercise properly.[12]
Ultimately, the most important takeaway from Allan’s case is to acknowledge that the current process for the disclosure of evidence is a systemic problem in the criminal legal system. To prevent future cases where false allegations could potentially destroy the lives of the accused, this problem has to be combated to ensure that all parties have a fair trial.
Juet Wee Kweh
Criminal Law Section Editor
4th December, 2018
[1] Crown Prosecution Service, ‘Joint press release from the Crown Prosecution Service and National Police Chiefs’ Council - Action on Disclosure’ (Crown Prosecution Service, 26 January 2018)
<https://www.cps.gov.uk/cps/news/joint-press-release-crown-prosecution-service-and-national-police-chiefs-council-action> accessed 22 November 2018
[2] Metropolitan Police Service (MPS) and CPS London, ‘A joint review of the disclosure process in the case of R v Allan: Findings and recommendations for the Metropolitan Police Service and CPS London’ (January 2018)
[3] Ibid.
[4] Ibid.
[5] David Brown, ‘Innocent student Liam Allan’s two years of torment’ (The Times, 15 December 2017) < https://www.thetimes.co.uk/article/innocent-student-liam-allans-two-years-of-torment-gtw0wlrrs> accessed 22 November 2018
[6] House of Commons Committee of Public Accounts, Efficiency in the criminal justice system (2016-17, HC 72)
[7] Tom Smith, ‘The "near miss" of Liam Allan: critical problems in police disclosure, investigation culture and the resourcing of criminal justice’ [2018] Crim LR 711, 726.
[8] E. Angiolini, ‘Report of the Independent Review into the investigation and prosecution of rape in London’ (Crown Prosecution Service, 30 April 2015) <s://www.cps.gov.uk/sites/default/files/documents/publications/dame_elish_angiolini_rape_review_2015.pdf> accessed 22 November 2018
[9] The Rt Hon Lord Justice Gross, ‘Review of Disclosure in Criminal Proceedings’ (Judiciary of England and Wales, September 2011) <https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/disclosure-review-september-2011.pdf> accessed 22 November 2018.
[10] House of Commons Justice Committee, Disclosure of evidence in criminal cases (2017-19, HC 859)
[11] Ibid.
[12] Monidipa Fouzder, ‘News focus: In the spirit of full disclosure’ (The Law Society, 5 February 2018) <https://www.lawgazette.co.uk/news-focus/news-focus-in-the-spirit-of-full-disclosure/5064663.article> accessed 22 November 2018.
Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes above.
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