Forensic evidence has dominated some of the news agenda this week, with outrage over the interrogation of complainant’s phones in sexual offences and other cases.
What is happening?
Predictably, there have been suggestions that the entire contents of a complainant’s phone will simply be handed over to defendants, and that they can then be questioned about anything and everything they have ever done. This ignores the rules that exist to make sure that only relevant material is disclosed, and prevent unnecessary and inappropriate questioning in court.
In reality of course, if a police officer is to investigate a criminal offence fairly, the interrogation of phones, computers and other devices may well be necessary. This is despite the potential for intrusion into a person’s privacy.
It is our job as criminal defence lawyers to ensure that the police do their job. This includes following all proper lines of enquiry, and ensuring that all evidence that ought to be disclosed to us is revealed.
Miscarriages of justice
If you look at the significant miscarriage of justice cases over the last 50 years, the most critical failing appears to be a lack of proper disclosure of evidence. In some cases, the evidence is neglected, in others actually destroyed or deliberately suppressed. There have been a number of high-profile cases in recent months where evidence on a complainant’s phone painted a completely different picture to their evidence, and quite rightly resulted in acquittals.
Forensic science providers
The second big story this week was a report from the Lords Science and Technology Committee examining the work of forensic science providers in the criminal justice system. Here are some of the findings:
“The instability of the forensic science market is a serious risk to the criminal justice system.”
“A free society is dependent on the rule of law which in turn relies on equality of access to justice. The evidence we received points to failings in the use of forensic science in the criminal justice system and these can be attributed to an absence of high-level leadership, a lack of funding and an insufficient level of research and development. Throughout this inquiry, we heard about the decline in forensic science in England and Wales, especially since the abolition of the Forensic Science Service.”
“Cuts to legal aid have affected the ability of defendants to access forensic expertise. We recommend that the Legal Aid Agency liaise with the market-regulation arm within the expanded role of the Forensic Science Regulator to set new pricing schemes, properly funded by the Ministry of Justice, for forensic testing and expert advice for defendants.”
Regrettably, none of these findings causes us the least bit of surprise. We are acutely aware of the deficiencies in the current system. As defence lawyers, we work proactively to ensure that all work is carried out swiftly and to the required standard. Only by being fully aware of the weaknesses in the system can we ensure that our clients’ cases are appropriately presented.
How we can assist
If you need specialist advice, then get in touch with John Howey on 020 7388 1658 or email firstname.lastname@example.org and let us help. We have the necessary skills and experience to assist you in respect to any criminal investigation or prosecution.Read More
Police forces across England and Wales are preparing for a rollout of ‘Body-worn Cameras’, and the government has announced that prison officers will shortly be assisted by this new technology.
What are Body-worn Cameras?
BWCs are small recording devices, very similar to a GoPro, which allows for constant audio and video recording in an unobtrusive manner.
The evidence from these cameras can be used to support a prosecution, and some argue that with officers and others aware that their actions could be caught on camera, it will result in a positive effect on behaviour.
Is behaviour calmed when a camera is present?
It is usually accepted that we behave better when being watched, for example, we are less likely to speed past a roadside camera or get involved in unlawful activity.
In 2011, researchers at Newcastle University posted pictures of a pair of male eyes and the caption, “Cycle Thieves: We Are Watching You.” Bike thefts decreased by 62 percent in those locations — and not elsewhere.
A study in Rialto California (USA) in 2012 appeared to show dramatic changes in police behaviour. Complaints against police officers were down 90% compared to the previous year. Critics, however, have been sceptical of this study, in part because only 54 officers participated.
That caution did not result in a slowdown of BWC deployment and by 2015 95% of US large police departments had deployed BWC or had committed to doing so.
Now, police forces in England and Wales are following suit.
The Rialto findings seemed to accord with common sense, but a new 18-month study of more than 2,000 police officers in Washington (USA), published on 20th October has disclosed ‘almost no effect’ on police officer behaviour.
Are BWCs a waste of money then?
This is a controversial question, and there may be many reasons for the Washington findings.
Other arguable benefits of BWCs are:
- Detecting rogue officer behaviour after the event
- Accurate recording of evidence
- Building community trust in the police – In another new study that will be published in the November 2017 issue of the journal Policing, researchers interviewed 249 people who had recent encounters with officers wearing cameras. Those who were aware of the cameras perceived the encounters as more “just” than those who were not.
It would appear that the jury is out as to the efficacy of BWCs. Supporters claim that there are definite benefits for both police and public, while detractors cite privacy concerns, sizeable public expenditure and a lack of cogent evidence to support their continued deployment.
What is clear to us is that we see the evidential worth of cameras in an ever increasing number of cases. Such evidence must, however, be analysed carefully, so as not to fall into the trap of believing that ‘the camera never lies’. We often find that video evidence is taken out of context, is distorted, and on occasions when it might be thought helpful to the defence, goes missing. It relies on the officer switching his camera on at the right time, and leaving it on for long enough.Read More
Even as a criminal solicitor in London, in over 20 years I have never come across a client accused of breaching the Official Secrets Act. Reference is often made to someone ‘signing the Official Secrets Act’, and this week I came across such a signed document, headed ‘Official Secrets Act’, amongst the papers of an elderly relative who died recently.
Contrary to many people’s belief, those who are bound by the Act are bound by it whether they have signed anything or not. ‘Crown Servants’, a term that includes civil servants, police, judicial officials and the armed forces and ‘government contractors’, ie companies who produce goods or services under contract for the government, are all bound by the Act, as well as members of the security services. Signing a document merely acts as a reminder to individuals that they continue to be bound by the Act even after they cease to be employed.
Prosecutions under the Official Secrets Act
To be an offence, the disclosure must be damaging. Prosecutions under the Official Secrets Act are rare; Clive Ponting in 1985 for leaking details of the sinking of the General Belgrano during the Falklands War; Richard Tomlinson in 1997 for passing secrets to a journalist; Sarah Tisdall for leaking details of the arrival of American missiles in the UK, and David Shayler.
David Shayler was arrested in France in 1998. He had been working for MI5, and revealed sensitive information to the Daily Mail, suggesting amongst other things that the security services were deliberately planting misinformation in the media and had ignored information that could have prevented terrorist attacks in the UK. The French courts refused to extradite him, ruling that the prosecution was politically motivated. A similar bar exists in the Extradition Act, S13 ‘extraneous considerations’, which prevents the extradition of a person where the warrant is issued for the purpose of prosecuting him or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or he might be prejudiced at his trial for any of those reasons.
Shayler eventually returned to the UK and was prosecuted. He was convicted after the Judge directed the jury to convict him.
A similar direction to the previous case had been given to the jury in the trial of Clive Ponting, who argued that the Act as it then stood allowed for the publication of information if it was in the interests of the state to do so. Although the trial judge directed the jury that it was up to Government Ministers to decide what was and what was not in the interest of the state, and that the jury should convict the defendant, they acquitted him.
Katharine Gun was charged in 2003 with leaking an email from the National Security Agency in the United States. The email was asking for help in a bugging operation at the United Nations, in the run up to the UN Security Council vote on the invasion of Iraq. Countries who were thought to be undecided were to have their offices bugged. Gun’s defence was that she was acting to prevent imminent loss of life in an illegal war. On the day of trial, for reasons never fully explained, the prosecution offered no evidence.
This seems to have been the last notable prosecution under the Act. Earlier this year, the Law Commission published a paper suggesting ways to bring the Official Secrets Act up to date, to deal with modern issues. the consultation has now closed, but you can still access the documents.
With the majority of Parliamentary time over coming months and years being taken up with Brexit, it seems unlikely that there will be progress soon.
John Howey, Senior SolicitorRead More
If you have been arrested on a European Arrest Warrant, it can be a daunting experience. The first thing to do is to make sure you get a solicitor. There are always duty solicitors available at Court, and they can help you at your initial hearing free of charge. Alternatively, you can contact a solicitor of your choosing.
In the courtroom
When you appear in court you will be asked your name and date of birth. The representative from the Judicial Authority will tell the District Judge what the warrant is about; which country it is from, if it is an accusation or a conviction warrant, what the offences are and what sentence has been imposed if it is a conviction warrant. The District Judge will want to know if you have been given a copy of the warrant and if you accept that you are the person named in the warrant.
Should you consent to your extradition?
The next step is to ask if you consent to your extradition. This is a big decision. If you consent then that is the end of the matter. You cannot change your mind later on, and you cannot appeal against the decision to extradite you. If you consent, you will be returned to the requesting state quicker than if you contest your extradition. You should be returned within 10 days, although that time can be extended whilst arrangements are made for your flights etc.
If you do not give your consent, then the District Judge will want to know the grounds on which you oppose your extradition. There are a number of statutory bars to extradition, and many people rely on the Human Rights Act. Once the issues have been identified, a date for the full hearing will be fixed and your case will be adjourned until then.
Want to know more?
If you want to know more about the extradition process, you can find out more here.
John Howey, Senior SolicitorRead More