12 May 2021
Prosecution’s compliance with disclosure rules would have avoided pain for postmasters
The recent Horizon post office case is a wake up call for all those who work in the criminal justice system, from prosecutors to investigators. Many innocent postmasters lost their reputations, their homes, and in some cases their liberty, as a result of failures by the prosecution to comply with their legal obligations on disclosure of evidence.
In the Horizon case, a need to disclose evidence - showing known problems with the IT system -was considered to be unnecessary by the prosecution, despite the IT systems being at the heart of their case. To say that these failures are nothing more than a one off, is to misunderstand how too many cases are built against innocent people. The issues in the post office case go right to the heart of the need for investigators and prosecutors to be fair and apply the law to every case, even if that means disclosing evidence that may assist the defence and confirm their innocence.
Such prosecution failures are sadly not isolated. For example, in the widely reported case of Mr Liam Allen, he was charged with rape. The issue was consent and during the trial it came to light that the police had taken it upon themselves to not disclose text messages in their possession, which showed that consent was clearly present. That case demonstrates how close some innocent people can be to being convicted and sent to prison. It was only when these messages came to light, that the case was dropped. By that time an innocent person had had his life ripped apart due to a botched prosecution.
The law is quite clear. Investigators are obliged to gather and to record evidence that may also undermine a prosecution case or assist a defence case and then to serve that evidence. The burying of supportive evidence to a defendant is never justified. When the rules are not properly followed, it can be due to a lack of understanding on behalf of investigators/prosecutors, or even worse, a deliberate cover up. The prosecution’s role is not to obtain a conviction come what may, but rather to be fair and act in a way consistent with justice. The Criminal Procedure Rules references the need for this to be the case.
One major issue is that there is too often a mindset amongst investigators that they want to prove he or she is guilty of the act they’re accused of. This is in contrast to a fair investigation that is led by following the evidence and seeing where it leads. The former approach is more likely to lead to a miscarriage of justice. In addition, we should not be rewarding or promoting investigators on convictions alone, but credit should also be given where an investigation has avoided an innocent person being charged or convicted.
The disclosure of evidence is at the heart of the criminal justice system. In this regard there are clear shortcomings on a daily basis, not helped sometimes by a court too often taking the view that the request for fair disclosure by the defence is an annoyance at the expense of progressing the case.
The risk of injustice is therefore a real and live issue. What a good defence team will do is to push every step of the way for your legal rights to be properly protected and if required, and where failures have been identified, to review whether a fair trial is impossible and a case should be dropped. In essence holding the prosecution to account. Disclosure failures are central to the ability to obtain a fair trial and obtain justice.
At B P Collins we have a wealth of expertise in criminal defence. We have the resources and knowledge to hold the prosecution and investigators to account where evidence is withheld or hidden.
Note: The Post Office is contacting 540 convicted postmasters to let them know they can appeal their conviction, adding that another 100 are likely to follow. https://www.dailymail.co.uk/news/article-9555843/640-postmasters-Post-Office-scandal-set-convictions-quashed.html