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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

In December last year, Valentin Krzyzyk was acquitted of charges by an English criminal court after the court saw a video that prosecutors had failed to hand over to the defence when the charges were brought. The video contained evidence that went further than merely supporting the defence: it strongly suggested that the complainant was the one who was being forceful while the defendant tried to avoid her. The court criticised the prosecutors and praised the defendant's barrister for months of persistence which , the Judge said, may have prevented a miscarriage of justice.

In January this year, in an English court, Adrian Iordan, Anisoara Lautaru, Petruta-Cristina Bosoanca were on trial on charges of people trafficking and offences related to prostitution. They all denied the charges but were held in custody with Bosoanca even having to give birth during that time. During the trial, it was learned that the police (who investigate - prosecutors prosecute and do not originate evidence) had found entries in social media by the Complainant, a young Romanian woman, that cast doubt on her story. That information was not produced to the defence team until December 2017.

There were other cases. In fact, in January this year, a report by the BBC said "Last year, 916 people had charges dropped over a failure to disclose evidence - up from 537 in 2014-15." There is another figure that is worrying "Over a four-year period, the number of completed prosecutions fell by almost 150,000 cases - from more than 736,000 in 2013-14 to just over 588,000 in 2016-17." Obviously failure to properly disclose is not the only reason cases do not reach the end of a trial.

The problem is not only in the UK. Yesterday two brothers who ran a market gardening business in Western Australia found their trial came to an inconclusive end when the judge told the jury that the case "had gone off the rails." What had been slated as a ten-day trial had by that point lasted seven months. The case was plagued as repeated failures, by the prosecution, to disclose evidence came to light. The case took four years to investigate, three years to bring to trial and there were six alternate jurors sworn in in case any of the primary twelve became unable to continue.

The issue in that case was a combination of two factors: evidence that should have been disclosed in the months before trial was produced ad hoc during the trial. The second factor is that, sometimes, evidence was voluminous and complex, to say nothing about the possibility that it may have been inadmissible. The judge said that, while the public interest is important, the situation had deteriorated to the point where a fair trial could not be guaranteed. The defendants have not been found not guilty and prosecutors may want to start again: indeed the case comes back for mention next month.

In the Krzyzyk case, the Judge was relatively kind to the prosecution: he said that they were ill prepared. But as more and more cases have come to light there are questions as to whether the problem is systemic and whether it is deliberate. If so, why? It is difficult to think of an answer which does not undermine the entire ethos of prosecutions - and potentially many, many convictions. The cost to the police, prosecutors and justice systems could be incalculable.

The other side of the coin is where masses of documents are delivered. So-called "death by paper" is a tactic which is particularly enjoyed by large law firms where substantial numbers of clerks, or technology, can be put to work to collate enormous bundles of documents. Even where those documents are subject to electronic discovery, as is now happening in some trials, someone still needs to read and work out their importance or otherwise. While some claim to have developed artificial intelligence to work on discovery, this newspaper continues to argue that the technology is not reliable and does not have the ability to identify nuances in language that a human would (should?) spot.

The dilemma is clear: the cost of comprehensive disclosure is high for both sides. The cost of filtering evidence for relevance is high and, if later, a court finds that evidence was not disclosed when it should have been, the penalties - ranging from orders for costs to the dismissal of the case - can be considerable.

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