Disclosure: Liam Allan cleared of rape

Serious questions for police following Liam Allen acquittal

The Times front page carries a startling report today of a rape trial that ended in acquittal of the defendant, Liam Allan, on the second day of trial after the police revealed a cache of messages obtained by them from the complainant’s telephone that they had decided to withhold from both the prosecutor and the defence.

It seems that in Mr Allan’s case the police had seized the complainant’s mobile telephone as evidence and interrogated it to obtain all messages contained therein. What happened next is unclear, the least damaging (to the police officers involved) theory is that they simply did not bother to read the messages. I’ll leave you to work out other possibilities.

On day one of the trial, the complainant (who is still entitled to anonymity despite the prosecution being so sure that her allegations were entirely fabricated that they felt compelled to offer no evidence against the defendant) gave evidence that she was raped and sexually assaulted multiple times by Mr Allan. The defence advocate spoke to the prosecutor, Jerry Hayes, raising what seems to have been an ongoing issue over disclosure of telephone evidence. Mr Hayes said in the Times:

“The officer in charge told me that he had it, but that it was clearly not disclosable as it just contained very personal material; nothing capable of undermining the prosecution case or assisting the defence.”

He went on to say that this set alarm bells ringing – probably because there are three lists of evidence in prosecution cases: used material, unused non-sensitive material and unused sensitive material. All evidence uncovered as part of the investigation should appear on one of these three lists. The fact that this material apparently appeared on none of them should cause any lawyer alarm. One question that we do not have answers to yet is why these alarm bells were not ringing in the mind of the CPS lawyers and prosecutor who Mr Hayes had replaced at the last minute.

By the end of the first day of trial some 50,000 messages were handed over to the defence advocate, Julia Smart, who spent the rest of that day – well into the night I imagine – reviewing the contents of the new disclosure. The next day she informed the Court and Crown of her findings and Mr Hayes, rightly dropped the case like a hot potato – something that would have been done two-years ago had the police conducted a competent investigation!

I have read suggestions by a number of people, including former senior police detectives, that there is nothing to see here because it is not the job of police to investigate material that might assist the defence – I’m pleased to say that I’ve also seen other detectives saying that such claims are nonsense. With respect to those who insist police have no obligation to investigate evidence that helps the defendant, such claims are absurd morally, practically and legally.

Morally because such a situation would mean that an investigator who spots material that looks like it could leave to material that would prove innocence would be justified in ignoring it and that will always be morally wrong. It is practically wrong because the police as agents of the state hold powers and have resources to investigate not available to individuals. A prime example, is the power to seize telephones as evidence and interrogate them, which is something no defendant can do lawfully for himself.

Legally, the police have a positive duty to investigate crimes properly and record the course of their investigations. Section 23 of the Criminal Investigations and Investigations Act 1996 allows the secretary of state to prepare a code of conduct designed to secure:

“(a) that where a criminal investigation is conducted all reasonable steps are taken for the purposes of the investigation and, in particular, all reasonable lines of inquiry are pursued;

(b) that information which is obtained in the course of a criminal investigation and may be relevant to the investigation is recorded;”

The Code of Practice created under section 23 of the CPIA 1996 tells us at paragraph 3.5 that:

“In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances. For example, where material is held on computer, it is a matter for the investigator to decide which material on the computer it is reasonable to inquire into, and in what manner”

First, note that words “the investigator should pursue all reasonable line of inquiry whether these point towards or away from the suspect”. That clearly refutes the claims that police have no duty to investigate avenues that may assist the defence.

Turning to the question of whether reading the messages was a “reasonable” line of inquiry. There were 50,000 messages that would take up 2,500 pages if printed – I suspect that is in fairly close print too. If there is nothing to suggest that the contents of a complainant’s mobile telephone is relevant then we could fairly say that reading 50,000 messages is an unreasonable thing to do. If you agree with that notion, then you might even think that seizing the complainant’s telephone and sending it to an expert to be interrogated is also unreasonable!

In a case where the defence case is that the complainant had consensual sex with him and that she had been pestering him for sex by text message for some time after the alleged rapes you might think that reading those messages would be reasonable. Once you have read them and find that they support the suspect’s version of events you might then decide that reading some, or even all, of the others is a reasonable line of inquiry. Of course, if you read them and decide they either do not exist or do not support the defendant’s claims then you may decide that reading the remaining messages is unreasonable.

In his Times article, Mr Hayes puts the failings down to a lack of resources within the police. I agree and add that this is not a problem limited to serious cases, in fact it may be even more prevalent in lower level cases where the prosecution have even less resources to throw at it. Mr Hayes says that he takes the old-fashioned view that the defence should have any material they want, providing it is not a “fishing expedition” (that’s lawyer code of “taking the piss”). That is an old-fashioned view; I’d suggest that the more common opinion today is that material should only be disclosed if it is relied upon by the prosecution or if the defence can set out strong reasons for it to be disclosed within the statutory regime for disclosure.

Legally speaking the Crown are doing nothing wrong, but often strict adherence to the letter of the law does not benefit justice and is, in my opinion, done solely to save money. My usual line of work are criminal trials over drink driving and failing to provide specimen cases. In the latter, there is always CCTV evidence, but it costs money to produce (the time of the officer obtaining it and the physical cost of the discs and postage), so the CPS often refuse to serve it. In a failing to provide case, the CCTV will usually either prove the prosecution case beyond reasonable doubt or it will support the defendant’s contention that something went wrong. In one case, I had a matter listed for trial three times before anybody in the CPS office bothered to look at the CCTV, which they had refused to serve. At the start of the third trial they finally agreed to review it and immediately saw that it exonerated the defendant and that the police officer had acted badly during the breath procedure. The prosecutor immediately discontinued the case. It’s not nearly as serious as multiple rape case but it shows that this sort of failing is common and happens at all levels of the criminal justice system.

Look, I know it’s not sexy; you’re never going to get votes in properly funding the criminal justice system – because everyone charged is guilty until it’s you on the receiving end of a false complaint – but until politicians accept that a corner stone of a fair society is a justice system that is actually capable of delivering justice then you are going to see the numbers of miscarriages of justice rise. Most will be minor offences. Many victims will be the sort of people that most people choose to tut at and think bad thoughts about when they pass them on the street. But, that doesn’t mean we should be any less concerned by people being wrongly convicted. Some of the wrongful convictions will be people who look like you… one might even be you!