The Secret Barrister

by The Secret Barrister

  The Myth of State Competence

  The first thing to state clearly, for the avoidance of doubt, is that instances of malicious sexual allegations are rare. Exact figures are obviously unknowable, but at the last estimate, there were roughly only twenty prosecutions of malicious rape complaints per year,4 while there are approximately 7,000 annual complaints of rape made to the police.5 Under-reporting of sexual offences is widely accepted to be numerically far more prevalent than malicious complaints.6 Popular misconceptions abound in this field, largely due to misunderstandings as to what the burden of proof, and an acquittal, actually means. Where there is no conviction after a defendant is charged, as occurs in 42.1 per cent of rape cases, it does not automatically follow that the complaint was false. Many sex cases come down to a grainy issue of consent, or reasonable belief in consent, or identification, where a not guilty means just that – the jury was not sure of guilt, rather than sure of innocence. An acquittal should not be mistaken for a finding that a complainant was untruthful. Susan is in the minority.

  However, I use Warren Blackwell’s case as a stark illustration of the serious consequences that can flow when the state machinery is assumed to be competent, particularly in the error-strewn field of disclosure.

  For, like Warren Blackwell, hundreds of thousands of other defendants find themselves victims of prosecution disclosure failings every year. For many, especially the guilty, little will turn on these errors. But for the innocent, there may be an Aladdin’s cave of disclosable material, relevant to your case, which the police and CPS have failed to obtain or reveal. Every morning of every trial I defend is spent chasing the prosecutor for disclosable material that my solicitors have repeatedly requested to no avail. Rarely is the Schedule of Unused Material – which should contain a list of everything relevant to the investigation generated by the police in the investigation, with each item reviewed and marked either ‘disclosable’ or ‘not disclosable’ – complete. Sometimes the overworked CPS lawyer who is supposed to have assessed the material will admit to not having seen it, but having rubber stamped the police’s assessment.

  Many failures are fortuitously caught in the act; but the margins are often so fine as to leave me with a lasting feeling of physical sickness.

  A colleague in chambers once grabbed me and, pallid-faced, told me of his case that morning in which his client, who had been remanded for six months awaiting trial for a serious kidnapping, had been freed at beyond the eleventh hour after the prosecutor casually disclosed mobile phone and cell-site evidence that proved the alibi that the defendant had pleaded all along. After much pressure from the judge, the prosecution agreed to drop the case just as the jury were about to be empanelled.

  A few years ago I defended a serious allegation of violence. A week into the trial itself, after my client, David, had been told something by a friend of a friend of a friend who had seen something on Facebook, we badgered the prosecution to investigate, and it was disclosed that the complainant had the previous month been convicted of an offence of violence. The complainant, who David maintained was a violent liar, had recently been tried at Crown Court, and had given evidence in his defence on oath, and a jury had been sure that he was both violent and lying. Compelling, relevant and admissible evidence which ultimately helped to secure David’s acquittal. But for these six degrees of social media separation, it would never have emerged.

  A 2017 joint report into disclosure by HM Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary made for terrifying reading. The police and CPS, whether due to poor training or lack of resources, were failing time and time again to comply with their obligations in run-of-the-mill (‘volume’) Crown Court cases. The Schedules of Unused Material that were supposed to be drawn up by the police were ‘wholly inadequate’ in 22 per cent of cases. The CPS was failing to pull the police up on these obvious failures, and 33 per cent of CPS files examined by the inspectors were marked ‘poor’. In over half of cases, CPS lawyers provided no explanation for their decisions as to what should and should not be disclosed to the defence. Audit trails of the disclosure process were unsatisfactory in 87 per cent of cases. The Chief Inspector, Kevin McGinty, said with apparent weary familiarity:

  The findings of this inspection will surprise no one who works within the criminal justice system as there appears to be a culture of defeated acceptance that issues of disclosure will often only be dealt with at the last moment, if at all. If the police and CPS are ever going to comply with what the law requires of them by way of disclosure, then there needs to be a determined cultural change. This is too important to be allowed to continue to fail.7

  Serious Crown Court cases offer hardly greater comfort. Although the CPS’s dedicated Rape and Serious Sexual Offences (RASSO) units perform their disclosure obligations to a higher standard than we see in the CPS’s general knockabout caseload, a ‘good’ rating of just over 51 per cent8 is hardly cause for celebration. It means that in nearly half of serious sex cases – cases such as Warren Blackwell’s – the CPS is struggling to carry out its statutory duties of disclosure. And this, bear in mind, only represents the known failings – the errors or delays that are spotted and recorded. Miscarriages of justice like Warren Blackwell do not show up in official reports. They lie dormant, until, or unless, discovered.

  Disclosure failure is not new. It is a problem that has been identified in report after report after report. And such levels of inadequacy persist notwithstanding our adversarial system; the defence solicitors and barristers actively needling the prosecution to do its job, to investigate further and to reconsider its analysis of what material might be relevant. I shudder to think what an inquisitorial system, which envisages no meaningful role for the defence in the investigative procedure or in the compilation of the dossier for the judge, would miss. Can it really sensibly be suggested, given what is known about the performance of the prosecuting authorities, that the state would organize its affairs better without an adversarial counterweight correcting its omissions? Given how the CPS struggles to manage its existing functions, are we ready to surrender the role played by defence lawyers to the exclusive competence of the state? Or in so doing, would we simply be increasing the number of Warren Blackwells in our prisons?

  A further relevant example worth mentioning at this stage is the state of forensic scientific evidence in the criminal courtrooms. Scientific evidence plays an increasingly central role in criminal trials. Experience teaches that it is particularly persuasive with juries, who are prone to falling spellbound to scientific claims of infallibility from the witness box. In some cases, it is literally the only evidence: a DNA profile match alone, with nothing further to link a suspect to the scene of a crime, is sufficient for a court to safely convict.9

  The assumption of the infallibility of scientific evidence has led to some of the most appalling miscarriages of justice in history, including the rash of mothers wrongly convicted of killing their babies on the basis of evidence given by discredited paediatrician, and prosecution expert, Roy Meadow. ‘Meadow’s Law’ – his hypothesis that one sudden infant death is a tragedy, two is suspicious and three is murder – was backed by fallacious statistical analysis and was relied upon in the 1990s to convict a series of women insisting that their children had died of natural causes. While the Court of Appeal quashed a number of these high-profile convictions in the 2000s, the damage done to some of these women was irreversible. Sally Clark, a solicitor convicted in 1999 of killing her two infant sons, succeeded in her appeal in 2003, but died in tragic circumstances four years later, having never recovered from the effects of this most awful miscarriage of justice.10

  Given its power over prosecutors and juries, the importance of accuracy in scientific evidence is plain. But the quality of forensic scientific services is in severe decline. In a money-saving exercise in 2012, the government’s Forensic Science Service was closed, and forensic scientific analysis and pathology have since been subcontracted to pri
vate firms or carried out at police laboratories. The Forensic Science Regulator exposed the predictable false economies in 2017 in a withering report. The tendering system had resulted in a high turnover of providers, with work constantly changing hands and a consequent ‘increase in quality failures and a loss of skills’.11 There was a lack of standardization in scientific approach, and the interpretation of results varied across providers. Few organizations in 2017 were on course to secure accreditation and meet basic standards of competence.

  Terrifyingly, the regulator noted instances of contamination, where extraneous material was inadvertently introduced into analysis. These risks were notably prevalent in Sexual Assault Referral Centres (SARCs) and police custody, where ‘a number of concerning contamination-related issues’ were identified in the medical examination of complainants and suspects.12 In one example, DNA recovered from one complainant examined at a SARC was detected on intimate swabs from another complainant in an entirely different case, who was examined in the same facility. In another, the same medical practitioner was asked to examine both the suspect and the complainant in the same case. Had the suspect’s DNA been found on the complainant’s intimate swabs, this would have presented prima facie compelling evidence that sexual activity took place, but the actions of the forensic medical examiner would have entirely compromised any such finding. There would have been no way of knowing whether the DNA was transferred by direct contact between the complainant and suspect, or indirectly by the examiner. If it was the latter, and the contamination hadn’t been identified or disclosed, there would have been utterly compelling – but potentially utterly wrong – scientific evidence on which a jury could convict.

  The Myth of State Impartiality

  Competence is of course only half the story. The other assumption underpinning inquisitorialism is that the state’s motives are pure beyond reproach.

  And while Hanlon’s Razor holds that one should never attribute to malice that which is adequately explained by neglect, the history of British criminal justice shows that bad faith on the part of the prosecuting authorities is more than just the fantasy of the green ink brigade.

  Indeed, Warren Blackwell only received a second bite at the appellate cherry thanks to the Criminal Cases Review Commission, which was established in 1995 following perhaps the most famous miscarriages of justice in our legal history – the series of wrongful convictions in the 1970s arising out of bombing campaigns attributed to the Provisional Irish Republican Army (IRA).

  The collective labels – Guildford Four, Birmingham Six, Maguire Seven – are marked in the history books as monuments to prosecutions gone rogue. A web of misconduct, including false confessions, non-disclosure and patently unreliable expert scientific evidence, was only exposed decades after innocent men and women had been imprisoned for offences including murder.

  I have enormous respect for police officers, and see every day how they risk their lives to serve and protect the public with a dedication to duty that many of us take for granted. It is impossible to successfully prosecute criminal cases without the graft and ingenuity of police officers who I will not hesitate to say rarely get the public recognition or gratitude that their sacrifices richly merit.

  But they are not all perfect. Some are very far from perfect. Some lie, cheat, dissemble and break the rules in the same ways as their quarry on the other side of the thin blue line. Often, the lies – or mistakes, as no doubt they would wish the errors to be characterized with a charity they would not for a moment extend to a defendant – appear minor. But that doesn’t lessen their seriousness.

  There’s the CCTV that displays the smart, uniformed plod standing before the jury losing his temper in the custody suite and smashing the suspect’s head gratuitously into the wall. Or you’ll discover the search log that shows that the drugs allegedly found in the defendant’s bedroom were in fact retrieved from the far less incriminating communal hallway. We might see several versions of police witness statements, which allow us to track the sequential amendments that have been made, in the days after the event, to ensure that the officers’ evidence all tallies, and that any inconvenient inconsistencies are ironed out before the final versions are served on the defence. The solicitor might discover by happenchance a witness helpful to the defence whose existence was notably withheld by the constable the witness spoke to at the scene.

  These do not happen in every case. But they happen. And usually it’s because the police know they’ve got the right person. Like in the TV procedural shows, the difficult part is over once the mystery is solved, the bad guy has been identified and an arrest has been made. Proving it in a court of law is just red tape. An irritation. If rules need to be bent to get the right result, so be it. Like with Mary, at the chapter’s beginning. The officer knew she’d done it. So that was OK.

  Such cases demonstrate the fallacy of assuming the state is able to neutrally ‘seek’ truth, as opposed to alighting on its own theory and embarking on ex post facto buttressing of that narrative. And this is a criticism often levelled at inquisitorial systems by those who work within: notwithstanding their oxymoronic designation as ‘neutral’ prosecutors, the prosecutor and police may bow to natural inclinations to take a partisan position against the suspect and construct a case against him.

  The flaw runs deeper than the motivations of individual investigators, however: inquisitorialism is compromised by the inherent susceptibility of the state machinery to political influence. Not at the level of high conspiracy, but the subtler pressures that governments bring to bear on the administration of criminal justice. The ubiquitous ministerial intuition that cost savings can be made without public outcry by shearing the justice budget, cutting a few corners here and there, has been demonstrated at length. You do not need to be modelling a tinfoil hat to recognize that politicians incrementally dispense with systemic safeguards, increasing the incidence of wrongful convictions, to bank transitory credit for being Tough On Crime; often as a reflex to media campaigns to ‘improve’ conviction rates for particular offences.

  The vulnerability of impartial state investigators to political influence has been exposed in recent years by the ruinous way in which the authorities have treated complainants and defendants in cases involving child sexual exploitation.

  So gruesomely ubiquitous have become reports of vulnerable children preyed upon by monstrous men, many known to but not pursued at the time by the authorities, that the single-word appellations have become common shorthand. Yewtree. Savile. Rochdale. Rotherham. Aylesbury. Oxford. Bristol. Newcastle. All cases where men abusing positions of power – whether achieved instantly by celebrity or incrementally by organized, gang-based grooming – evaded justice for years due in part to institutional attitudes that not only undermined but flew in the face of official investigative and prosecution policy.

  In each instance, the criminal justice system only creaked into action many years after the offences were committed, despite the distress flares sent up by victims – and, famously, in the Rochdale grooming case, by social workers – at the time. The reasons for this gross betrayal are multifaceted and still not fully known, to be considered no doubt by the ongoing Independent Inquiry into Child Sexual Abuse (IICSA), but some trends have already been identified. The police had been told to focus instead on other offences to hit important government targets.13 There was reportedly an irrational disinclination to intervene in some cases on grounds of cultural sensitivity due to the racial profile of some of the offenders.14 A fear of investigating a name as big as Savile conferred immunity to offend.15

  A correction was required. No more, it was rightly said, would someone alleging serious sexual abuse against a person of influence find their accusations surreptitiously buried amidst institutionalized disbelief or backscratching in smoke-filled masonic lodges. But the pendulum, for so long jammed against the interests of victims, swung violently to the other extreme.

  When, in 2014, a man known as ‘Nick’ approached the p
olice with a chilling tale of 1970s murder and paedophilia that stretched to the highest echelons of the establishment, officers listened, captivated. Nick described how he and other young boys were ritually abused from the age of seven by a ring of Cabinet ministers, army generals, heads of MI5 and MI6 and a former prime minister. Nick was raped by one of the politicians, who was only stopped from dismembering Nick with a penknife due to the intervention of the prime minister. Nick was allowed to keep the penknife as a memento of this incident. Two other boys were murdered in front of Nick in a vile sex game, while another was run over by a car to instil terror into the other victims of abuse.16

  If this sounds like a warped nightmare, that’s because it was utter fantasy. There was no evidence at all to substantiate Nick’s claims, and ultimately, in 2016, he was investigated for attempting to pervert the course of justice.

  But faced with this ostensibly ludicrous story in 2014, what did the police do?

  We should perhaps start with what they should have done. Notwithstanding our adversarial settlement, the police are required by law to investigate allegations of criminal offences fully and impartially. The rationale is obvious: the police have unrivalled resources and legal powers to effect criminal investigations; they have powers to enter premises, arrest people, search addresses, seize evidence, conduct scientific tests and so forth. However thoroughly defence legal representatives may conduct investigations on an accused’s behalf, they cannot realistically compete.

  A binding Code of Practice17 sets out in detail the steps that the police must take when a crime is reported. Chief among these is the duty to establish whether a crime has in fact been committed.18 If the investigation leads the police to suppose that a crime has or may have been committed, their duty to investigate is explicitly broad, and they are obligated to investigate all reasonable lines of inquiry, including those that point away from the suspect’s guilt.19 If the police, having investigated fully, consider that there is sufficient evidence to support a prosecution against a suspect, the matter will usually be referred to the CPS for advice and a decision on whether to charge. Even post-charge, the police are required to maintain an open, enquiring mind and exercise neutrality in the disclosure process, as described earlier, to ensure that the CPS and the defence are provided with anything that might help the suspect.