Disclosure scandal; an untold story
Over recent weeks, there have been a number of high profile rape cases involving disclosure, or more accurately non-disclosure, of information obtained by the police during their investigations. In a number of these cases, the evidence has come to light before the trial has concluded, leading to the acquittal of the defendants. In at least one case, an innocent man served a lengthy period in custody, and had already been released, before the evidence came to light and his conviction was quashed.
It may be tempting to think that these are isolated incidents, and limited to sexual offences, but they are not. Even with the current media frenzy over this issue, there are cases going on around the country where exactly the same is happening, day-in, day-out. One such example is a case that we dealt with earlier this month.
Our client has asked that we do not disclose his name, so we will call him D. We will call the girl involved C.
In July 2015, D was 16. C was 15. They had been boyfriend and girlfriend for 3 weeks when C went to D’s flat one evening after school. D’s mum and dad were at home. They went to his bedroom and had sex for the first time. C left shortly afterwards and went home.
She was upset with what had happened. They spent several hours on the phone to each other that night and the following morning. She also spoke with other friends on the phone. The next morning, she confided in her foster mum that she had had sex with D and that she had not wanted it to happen. C went to school and complained that she had been raped. The police were called. During the course of the morning another pupil, a friend of C’s showed one of the teachers a message that D had apparently sent the previous evening. The teacher took a photo of it. The message, in isolation, could have been seen as an admission.
D was arrested 36 hours after the incident. His phone was seized. He was interviewed by the police and accepted having sex with C, but said that she had consented. He was bailed pending further enquiries.
Despite the young age of the parties, no progress was made for some time. In February 2016 D was interviewed again, about a handwritten note found in the rubbish bin at C’s house. This note could be described as a sexual ‘to-do’ list. C denied she had written any of it except the title, and suggested D had written it. D denied ever having seen the piece of paper, or having written it. He agreed to provide some handwriting for analysis.
D was eventually charged in May last year, 22 months after the incident took place, by which time he had turned 18, and fell to be tried as an adult.
When the prosecution papers were eventually served, only C’s second interview was served, dealing with the piece of paper.
This was the first failure of disclosure; we had to chase the CPS for the main interview, containing details of the allegation of rape. We were also not provided with a proper transcript of D’s second police interview.
The communications between D and C were clearly relevant to the case. The Officer in charge of the investigation (OIC) in an unusual move provided a statement in which she stated that she had examined the mobile phones of both C and D, and provided details of an exchange of text messages that she said had passed between them on the day in question. We were also provided with an Excel spreadsheet, described as the download of C’s phone.
Even a cursory examination of this document showed that the phone number that the OIC had attributed to D was not his and that the messages in question were not sent by him or to him. Despite having both phones in her possession, the OIC had provided a statement that was wholly inaccurate and very misleading.
The schedule of unused prepared by the OIC (documents not relied upon by the Crown, but relevant to the investigation) listed just two items; the CRIS (police report) and D’s custody record. One of the two pages of the CRIS that were disclosed included a comment from an officer describing C as ‘not the compelling and honest witness that she first appeared’. A CRIS relating to a previous allegation of sexual assault made by the complainant that was not proceeded with, was also disclosed.
In the usual way, a defence statement was served, requesting a number of items which in our view were plainly disclosable, in particular.
- We asked for service of the phone downloads of the phones belonging to C and D. We were told by the CPS that the D’s phone download ‘has been requested and will be reviewed once it is available’. By this point, 27 months had passed since the offence and the CPS were still not in possession of the download. This means this important evidence had not been reviewed by the CPS when they made the decision to charge a young man with rape.
- The CPS had indicated at an early hearing that handwriting analysis was being done on the list found at C’s house. We asked for the outcome of this. We were told ‘the ‘list’ was not suitable for handwriting analysis and was therefore not completed’.
- The CPS had previously disclosed the existence of medical notes, GP notes, Counselling notes and Social Services records. In response to our request for access to these documents we were told ‘these were considered as part of initial disclosure and relevant entries were disclosed’
The case then came back to Court for a pre-trial review. Amongst the matters raised was the absence of the defendant’s mobile phone download. The OIC was at Court, and she claimed that the disc had ‘caught fire’ during the copying process; the inference was that the phone evidence was no longer available. The prosecution continued to maintain their stance that the other items were not disclosable, so we listed the case for a S8 disclosure application.
When the S8 application came to be heard, it was apparent that neither prosecuting counsel or the CPS had seen, let alone reviewed the social services file. The judge on that occasion ruled that the trial judge would need to consider the application at the outset of the trial.
The trial was listed for January 2nd 2018. On the morning of the trial, Prosecution Counsel took the view that the material had been reviewed (albeit not by him), and there was nothing further to disclose. Fortunately, the trial judge took a different view, and made it clear that it was the prosecutor’s job to review the material and decide what did and what didn’t meet the test for disclosure. Time was allowed for Prosecution counsel to review the social services and school records of C. The school records had to be retrieved from the school because the OIC did not have them. Amongst other information revealed in the days after the trial had actually started, we learnt.
We had already instructed our own handwriting expert to analyse the handwritten note. There were no issues regarding the quality of the sample and she was able to conclude that it was very unlikely that D wrote the sexual ‘to do’ list.
At the trial the CRIS was finally disclosed. It revealed that C’s mum had found the paper in the bin at home, and that as far back as March 2016, the reason given for being unable to do the comparison was because the school had none of D’s work available. Enquiries were apparently being made with C’s school for her books, but C’s mum had said it was ‘clearly’ C’s writing. It was clear that the reason provided by the OIC for their being no analysis was simply untrue.
In her evidence, C continued to maintain that she had not written the document. This raised serious issues regarding her credibility.
C’s phone download
On day 2 of the trial, the OIC provided a statement saying that the download from C’s phone had been provided from the lab that did the work as an Excel spreadsheet, this lab had gone into administration and the original material was no longer available. However, when pushed by D’s barrister, she eventually disclosed that she had a disc, albeit it was “corrupted”. Prosecution and defence counsel took and reviewed the disc which had the full original phone down load for both D’s and C’s phone on it. No explanation was ever forthcoming from the OIC as to why she had lied about the availability of the phone download.
Other failures of disclosure
D’s mobile download
This wasn’t provided until 22nd December 2017. It ran to over 1600 pages. Despite C claiming that their brief relationship had been unpleasant and that she had never been to D’s house, the download revealed daily lengthy conversations taking place between the two parties, and numerous loving text messages being sent. The contents of the messages also suggested that C had been to D’s house on a number of occasions.
There was no record of the message that he had apparently sent on the evening, apologising. There was no record of anything preceding that, or afterwards, that might have put it into context. The records did however show that he had spoken to the person the message was sent to immediately beforehand, which would provide some context for it. That person had declined to provide a statement, and despite speaking to her on a number of occasions, the OIC agreed in evidence that she never thought to ask to look at the witnesses phone to see the context of the relevant and damaging message.
Social Services records
Social Services records eventually disclosed that;
Her mother could not leave her at home alone because she was stealing from her and could not be trusted
The situation at home was so bad that police had been called twice to allegations of assault, once by C and once by her mum. Her mum had asked social services to remove her.
C had told medical professionals just four months before the allegation was made that ‘I lie a lot’, that she had fallen out with her best friend, was struggling at school and stressed about exams. She also describes herself as being impulsive and having difficulty managing her emotions.
As well as other matters referred to above, this disclosed that at the time of the offence C was having difficulty at her foster home and wanted to go back to her mum.
The verdict and some considerations
Fortunately for our client, the jury found him not guilty. However, what was not a particularly complex case had taken over 2 ½ years to be concluded during which a young man had to effectively put his life on hold. The evidential position in this case was very different at the end of the trial to the start of the trial. Had the evidence that was finally disclosed been made known to the CPS pre-charge, then there is a realistic chance that this defendant may never have been charged. Had the CPS properly reviewed the evidence at an earlier stage, they may well have chosen to discontinue the case.
There has been absolutely no publicity about this case, and D wishes it to remain that way. However, what is clear is that the cases reported in the media over recent weeks are not isolated cases, but a reflection on the current problems within the Criminal Justice System.
John Howey, Senior Solicitor
Please note that the information contained in this article was correct at the time of writing. There may have been updates to the law since the article was written, which may affect the information and advice given therein.