What does it take to see what should be seen?
Events have illustrated, as if illustration was necessary, the importance for full disclosure of evidence to ensure fairness in criminal trials. Our daily work over almost 20 years involves reviewing the work of the police and laboratories employed by the police in criminal trials. No matter how much we have pointed out the dangers to politicians and courts alike, there has clearly been no appetite to improve the fairness of the system. Equality of Arms has seemingly become a long-forgotten principle in dealing with forensic evidence; we wrote about that in 2012. Five years on and we have more scandalous mis-handling of evidence by the police.
Our initial concern began with an apparent change of policy following the creation of the Scottish Police Services Authority (SPSA). We wrote to the SPSA on 19th June 2009 and received what has become a typical response promising much but delivering nothing (sops are Standard Operating Procedures; why would these not be subject to proper scrutiny by the defence?). Having achieved no movement on the part of the SPSA we wrote to the Scottish Government in March 2011. Again, a trite and unhelpful response from the Justice Minister flying in the face of practice in every civilised jurisdiction that we have dealt with (including USA and Australia). It should be remembered here that we are not seeking a change in the law; simply the release of the evidence against the defendant – “Aside from the clear inequality of arms involved in the court debate, we consider that, notwithstanding what may be the legal position, common fairness and justice demands that all of the material used by the Crown scientists should be made available to the defence to conduct such inquiry as the defence deem fit, not as deemed acceptable to the Crown or the SPSA.”
Things are only slightly better in England and Wales. At least one of our problems there was publicised in 2014. The introduction of commercial suppliers has been accompanied with the bizarre situation where the defence must pay to see the basis of the scientific evidence against them! This is not only grossly unfair, can increase delay in the trial process, but also places an additional cost burden on the already stretched Legal Aid budget. For cases involving Cellmark Forensics (who undertake police contracts) and Keith Borer Consultants (who work mainly for the defence) the State are paying Cellmark twice as they own Keith Borer Consultants. Given that Appeal Court decisions have effectively compromised thorough re-examination of the scientific evidence after conviction, the necessity for full and effective disclosure at trial has become even more important.
it remains a mystery why disclosure should remain an ongoing problem when the Appeal Court in England & Wales stated in R v Ward (Judith) in 1992;
"The prosecution’s forensic scientists are under a common law duty to disclose to the defence anything they may discover which may assist the defendant. ‘Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.’
It was wrong to limit what was to be disclosed to merely what was relevant: ‘An incident of a defendant’s right to a fair trial is a right to timely disclosure by the prosecution of all material matters which affect the scientific case relied on by the prosecution, that is, whether such matters strengthen or weaken the prosecution case or assist the defence case. This duty exists whether or not a specific request for disclosure of details of scientific evidence is made by the defence. Moreover, this duty is continuous: it applies not only in the pre-trial period but also throughout the trial’ and ‘We would emphasise that ‘all relevant evidence of help to the accused’ is not limited to evidence which will obviously advance the accused’s case. It is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered, and from which the prosecution have made their own selection of evidence to be led." [our underline]
To repeat what we stated in 2014;
“Unless and until people are aware of the erosion of the ability of those accused of crimes to properly defend themselves against the State there will be no informed public discussion as to whether that erosion is supported by the public or not. In any event, governments have a duty and responsibility to respond properly to questions about their actions, but even that does not seem to apply when Legal Aid and disclosure is involved.”