Nightmare on Disclosure Street

22 BACK PAGE LAW STORIES 16 March 2018 | www.newlawjournal.co.uk it believed might help the defence but that it Nightmare on should have the right to examine everything that the prosecution had. That ruling was supposed to herald a Disclosure Street new age of openness. Last year the CPS Inspectorate and Her Majesty’s Inspector of Constabulary, in a joint report, found the quality of handling of disclosure by the police was ‘poor’ in more than four out of ten of cases (42%) and, in relation to the CPS handling, poor in one in three cases. The watchdogs’ findings were published The Director of Public Prosecution’s disclosure on the same day as a major report into nightmare seems to be getting worse by the another notorious miscarriage case: the Cardiff Three. week. Jon Robins reviews the evidence Lynette White had been brutally murdered in a flat in Cardiff in 1988. Five men were prosecuted and, two years later, three of recent BBC survey revealed that the men (Stephen Miller, Tony Paris and 97% of criminal defence lawyers How could five Yusef Abdullahi) were convicted of her had encountered disclosure men have been murder and sentenced to life imprisonment. A failures in the last 12 months. “ In 1992 the Court of Appeal quashed their Since the botched prosecution of Liam Allan prosecuted for a convictions. It would take another ten collapsed before Christmas, the Director of years when, as a result of advances in DNA Public Prosecution’s disclosure nightmare murder that they techniques, Jeffrey Gafoor was arrested. He seems to be getting worse by the week. had nothing to later pleaded guilty. The case against the 22-year-old Richard Horwell QC described the case as criminology student was dropped three do with?” ‘one of the worst miscarriages of justice’ in days into the trial at Croydon Crown Court the history of our justice system. His report when police were forced to disclose a wealth was prefaced with the prophetic words of digital evidence comprising some 40,000 Ward was highly vulnerable and of the senior investigating officer tasked messages which revealed, amongst other ‘spilled confessions and admissions like with getting to the bottom of the debacle: things, that the alleged victim had pestered beans’, according to her barrister Michael ‘The only way this case will fail is through the young man for ‘casual sex’. Mansfield QC. ‘They were all over the disclosure.’ Speaking to the BBC Radio 4’s Today place, in every sense of the phrase – bizarre So, as Horwell put it, how could five men programme, Alison Saunders was asked if and random’. At the time she was alleged have been prosecuted for a murder that it was a possibility that there were people to have planted the bomb, she had been they had nothing to do with? How could in prison today as a result of disclosure more than a hundred miles away at the witnesses have put them at the scene? In problems. ‘I don’t think so’, she replied, Blue Boar pub in Chipping Norton having a 2009, three police officers and two members ‘because what these cases show is that drink with a dozen other people. However, of the public were charged with conspiracy when we take a case through to trial there serial confessions were backed up by to pervert the course of justice and perjury. are various safeguards in place, not least overwhelming scientific evidence – or so the The trial of the first eight defendants of which the defence indicating what their court was told. The Home Office forensic collapsed when the prosecuting counsel ‘lost defence is going to be’. scientist Dr Frank Skuse, whose reputation confidence in the disclosure process’. There The response to her assurance was, to put was to be destroyed in the Birmingham Six were fears that key documents had been it mildly, sceptical. The Tory peer and The travesty, found traces of nitroglycerine on destroyed. Weeks after the Crown withdrew Times newspaper columnist Lord Danny her hands and on her duffle-bag. its case, the ‘destroyed’ documents were Finkelstein reckoned that the DPP had Her conviction was overturned in 1992. discovered at the police headquarters. ‘comically missed the point’ by suggesting It transpired that West Yorkshire police ‘Concerns of “establishment cover up” and that anyone who felt that they had been had sent to the DPP just 225 of the 1,700 “conspiracy” naturally followed’, Horwell wrongly convicted should speak out. They statements it had acquired and of 63 noted. The barrister went on to reflect on were hardly likely to know if there was any interviews, only 34 were disclosed. Among how disclosure problems had ‘blighted’ evidence in their favour if they hadn’t been the wealth of information that the Crown our criminal justice system for too long. told about it in the first place. The Criminal failed to disclose were three reviews of He noted that the public must be ‘utterly Cases Review Commission pointed that the case in 1985, 1987 and 1989. Each one bemused’ as to how the justice system was failure to disclose was ‘the single most found that something had gone seriously incapable of coping with a principle that frequent cause’ of miscarriages of justice. It wrong. Eminent scientists were also found was ‘long established and central to the was ever thus. to have suppressed evidence that showed tenets of fairness and justice’. But, as he put Judith Ward served 17 years after being that boot polish could test positive for it, the pendulum has swung both ways. The wrongly convicted for the M62 coach bomb. nitroglycerine (as did playing cards in the era of openness in the wake of the Judith An IRA bomb hidden in the luggage locker Birmingham Six case). Ward case has long gone. NLJ blew up a coach carrying off-duty soldiers and ‘Our law does not tolerate a conviction their families killing 12 people in 1973. She to be secured by ambush’, said Lord Justice Jon Robins, is an NLJ columnist, editor of was sentenced to 30 years’ imprisonment for Glidewell. His court held that the Crown’s The Justice Gap & a senior fellow in access to that and two other bombings. disclosure duty was not limited to material justice at Lincoln University..

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