The Disclosure Scandal and Wrongful Convictions

Present day miscarriages of justice are in the spotlight. But what about all those of yesteryear?

Alison Saunders’ car crash appearance before Parliament’s Justice Committee earlier this week was excruciating to watch. All her self-justifying bluster of previous media performances was missing. The Director of Public Prosecutions was on the ropes over the disclosure scandal and she knew it. 

DDP Alison Saunders

Both the embattled Crown Prosecution Service (CPS) and some police forces, especially the Metropolitan Police, are currently in damage-limitation mode. Ms Saunders recently attempted to maintain the ludicrous fiction that no-one is locked up at Her Majesty’s Pleasure because of disclosure failures. Now we know for certain that this assertion is simply untrue.

The latest CPS report reveals that, during January and February alone, a total of 47 prosecutions for rape and other sexual offences were discontinued following a review of what had been disclosed to the defendants’ legal teams. Of the men affected by this (and all but one of those who had been charged were men), 14 had been held on remand in prison. All of these victims of our so-called ‘justice’ system have now been released, almost certainly to ruined lives, including lost jobs, homes and reputations. 

In fact, hundreds of ‘live’ prosecutions have been abandoned, or charges have been dropped, since the scandal began to attract national publicity back in December, when the case of student Liam Allen imploded after electronic messages from his female accuser were very belatedly handed to Mr. Allen’s barrister. Subsequently, many other collapsed prosecutions, and the heart-breaking stories of those whose lives have been utterly devastated, have also been hitting the headlines. Overwhelmingly, these have involved sexual allegations, although a corruption case also crashed in flames last month, but only after the innocent businessman involved had spent nearly eight months in prison on remand. 

In addition to the cases above, reviews have revealed there are serious disclosure issues in prosecutions which are still to go ahead. Once these issues have been attended to, at least the defendants will have a more level playing field before their trials.

I am still worried. Despite seeing Ms Saunders being given a very public verbal drubbing by MPs, I feel that we are no closer to gaining any clarity regarding the vexed question of all the miscarriages of justice which must have occurred over a number of years due to the withholding of evidence by the police and CPS staff. It is an important aspect of this scandal that the national media is only now realising this could prove to be one of the worst legal outrages for decades. Both the Daily Telegraph and Metro have published features this week raising questions about the prospect of thousands of wrongful convictions over the past few decades.

Yet the alarm bells were already ringing back in July 2017 when HMCPS Inspectorate issued a report on disclosure entitled ‘Making It Fair’. This document warned that it was ‘rare’ for police officers to tell prosecutors about evidence that could undermine the prosecution case or assist the defendant with their defence. The CPS Inspectorate has specifically highlighted the consequences of these legal failures, describing them as ‘a steady stream’ of wrongful convictions.

Despite this bleak assessment, nearly a year on, there seems to be a very marked reluctance on the part of our country’s legal establishment to accept the fact that, when police officers and/or CPS staff withhold evidence, innocent people are likely to be convicted, with many of them – especially in sexual offences cases – sent to prison for long periods, in some cases for decades or even being handed life sentences. 

It seems that withholding vital evidence from the defence has become so commonplace (especially in sexual allegation prosecutions) that it has now become a normalised practice. Juries have been deceived for years and, given such practices, miscarriages of justice are inevitable. How many potentially innocent victims have been wrongly convicted and jailed? No-one seems to know and very few who are in positions of authority appear to be in any hurry to find out.

I believe that when it comes to cases involving sexual accusations, relevant evidence is usually suppressed (including potential witnesses ignored if what they might say is perceived to be helpful to the defendant); any such material is rarely, if ever, handed over to the defence. This is nothing to do with ‘administrative errors’, short-staffing or lack of financial resources. It’s part of a deliberate strategy within the police and the CPS to ensure the conviction of anybody they have decided from the outset is guilty.

It’s time we all started calling a spade a spade: ‘disclosure failures’ is merely a polite euphemism for evidence being illegally withheld or even concealed by police officers and/or CPS prosecutors in order to increase the likelihood of conviction. The time for politeness is over: this is the worst legal scandal in my lifetime. 

When I was put on trial in 2014, due to the blatant lies of a couple of compensation-hunting fraudsters, (blatant to everyone, it seems, apart from to the Suffolk police), why was no correspondence between my two adult accusers (close friends) prior to my arrest disclosed to the defence? They both claimed they had never discussed their ‘independent allegations’ against me, which is akin to asking any reasonably intelligent person to enter a grotesque ‘Alice in Wonderland’ world. 

    

Source: CPS VAWG Report 2016-2017

In October the CPS was boasting in its annual report that 13,490 people had been prosecuted for sexual offences in 2016-2017 (of whom 79.5% were convicted). It also trumpeted its success in achieving ‘huge increases in convictions for rape (48%) and other sexual offences (79%)’ since 2007-2008. My question is: how many of those convictions should now be considered unsafe due to the illegal withholding of evidence? 

We MUST NOT allow the scandal of police and CPS withholding evidence, especially in sexual allegation cases, to be limited to current prosecutions in progress. This unlawful practice has been going on for years and there is likely to be a multitude of victims of miscarriages of justice. Many may still be rotting in our dangerous, filthy prisons; others may have been released but face years, or even a lifetime, on licence or subject to the humiliating sex offender registration, unable even to start rebuilding their shattered lives or reuniting their families.

Given that the Criminal Cases Review Commission (CCRC) has repeatedly come under fire for being ‘unfit for purpose’, chronically underfunded and far too timid in referring cases back to the Court of Appeal, the prospect of hundreds - or thousands - of fresh dossiers hitting staff desks must be unnerving for civil servants and politicians alike. Who wants to be the Secretary of State for Justice when the music stops in this appalling game of pass-the-parcel (of blame)? Yet justice demands that convictions are reviewed independently, all evidence which is relevant is disclosed and urgent action is taken to refer meritorious appeals back to court. 

Any legal system that is solely designed to serve the purpose of conviction for ideological reasons (i.e. conviction targets set), regardless of evidence, is not a court of justice but rather a kangaroo court. We rightly condemn such pantomimes in other countries, yet we seem to have turned a blind eye to what has been going on for years in our own backyard.

Charlotte & Stefan Kiszko

Let’s recall the scandalous framing of Stefan Kiszko for a sexually-motivated murder in 1975. This case, which involved the police withholding conclusive forensic evidence of his innocence, has been described as ‘the worst miscarriage of justice’ in UK legal history. Now we may have hundreds, or possibly even thousands, of similar cases due to the disclosure scandal. 

It took Mr Kiszko’s elderly mother, Charlotte, 16 years of often lone campaigning to clear her son’s name and get his wrongful conviction quashed. Tragically, both died within months of his release. How many years of struggle will it take to get justice for the wrongly convicted of today?

It seems the CPS is playing a long game over the outrageous disclosure scandal. The powers that be are obviously hoping interest in miscarriages of justice will wane, eventually be forgotten about, before they are compelled to do anything. 

Waiting for justice will be like waiting for Godot - unless we step up popular pressure. Now.