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Death by paper v inadequate disclosure. Is there a middle ground?

Editorial Staff

Recent collapses in criminal cases in the UK and Australia have been the result of prosecutors failing to deliver all evidence within their control or knowledge to defence teams. But there is another side to the story - the not mythical death by paper where so much evidence is delivered that the defence cannot handle it or identify the nugget in that mountain that would aid their case.

Book: Sun Tzu and the Art of Litigation

But as sources of evidence constantly increase, there is a question mark over an earlier stage: what is the duty on the police, in their role as investigator, to keep looking for evidence that might undermine their own case. Cases have collapsed over the late disclosure of a diary - that might have been expected to be reasonably easy to find - and social media pages plus CCTV. Which and how many social media pages can the police, with their budget under pressure, be expected to scan, analyse and report? For sure, they have a duty to find evidence to support their case and to disclose it whether or not it supports or undermines the prosecution. That is settled law. But if they have a winnable case, is there a duty to continue to investigate in case the complainant has contradicted her statement on a Facebook (etc.) page? Where do the obligations of the defendant come in: is it the job of the Defence to check extensive social media activity and to bring what is found to the attention of the prosecutors?

What was, until recently, a simple issue of identifying and disclosing evidence has become extremely complex. Ironically, death by paper may well become the norm. And then the primary question is as to timing.

While Australia ploughs on with its Royal Commission into banking, the English Parliament has a Commons Select Committee investigating the position relating to evidence and disclosure. No one is happy. A barrister, Joanna Hardy, drew attention to one specific source of evidence - the mobile phone. She said "Their phones will tell you what time they woke up because they have got an alarm app. [The phone] will tell you what they had for breakfast because they have got a health app. A taxi app will show you what time they left. "

Daniel Bonich, vice-chairman of the Criminal Law Solicitors' Association, told the Committee that, on one occasion, he the defence was served with 17,000 pages of disclosure on the first day of a criminal trial. Angela Rafferty QC, Chairman of the Criminal Bar Association said "I do not have any experience of any officer who I think wants their case to be vulnerable to an appeal. The errors I see, prosecuting and defending, are more [due] to the lack of resources." She did also say that defence teams view disclosure schedules with a degree of suspicion and there is "a degree of mistrust" because there are so many failures to disclose according to the rules and to schedules set by courts.

But there is, also, a further problem: in recent years state-funded criminal trials have become subject to flat-rate payments for certain activities. The increasing scope in the nature of evidence and the increasing volume of it makes the effective study of it economically impossible. Also, there are no fees for the defence to conduct their own investigations.

And the problem isn't going away. On 29th April this year a case investigated and brought by HM Revenue and Customs (and not the Police) collapsed. The Judge was livid. He made reference to "lamentable negligence" which is indicative of a widespread problem. That case should have been simple: it involved a value added tax fraud relating to "red diesel" which is subject to a lower rate of duty for use in agricultural vehicles. In a specific form of fraud, red diesel is treated to remove the colouring and then the clear result is sold at standard retail prices with the fraudsters pocketing the difference in the VAT rates. A month into the trial, it was discovered that the HMRC investigating officer held, on his laptop "a vast amount of information that should have been disclosed to the defence." The problem was compounded because the CPS appeared to have been ignorant of it. When the judge denied a prosecution application to adjourn for sufficient time for the CPS to review it and decide what should be disclosed, the case collapsed. The results went further: there was a second, closely connected, trial scheduled, of fuel retailers ("petrol stations" which, of course, also sell diesel). That was abandoned, too. The estimated costs lost is in the region of GBP2 million.

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