Lord Devlin (1976)
Liam Allan, a criminology student at Greenwich University, was charged with six counts of rape and six of sexual assault. During the trial, the contents came to light of mobile telephone messages sent by the complainant including messages asking Mr Allan for sex. This material had been held electronically by the Police. The outcome was that prosecuting counsel (Mr Jerry Hayes) offered no evidence against Mr Allan and the case against him ended.
Mr Allan had spent almost 2 years on bail - in itself a serious concern - and, if convicted, a lengthy term of imprisonment was inevitable given that the maximum sentence for rape is life imprisonment and, for sexual assault, is 10 years. A serious miscarriage of justice was averted at the 11th hour with the trial judge asking for an inquiry to determine why this material was not disclosed sooner.
Disclosure has been the subject of three posts earlier this year - 19th July, 6th August, 18th August and 30th August. Failure to disclose material crucial to the defence is a major concern for criminal lawyers. There is no room here for complacency and the matter must be addressed thoroughly.
The duty to investigate all reasonable lines of inquiry is in section 23 of the Criminal Procedure and Investigations Act 1996. Section 23 begins: "The Secretary of State shall prepare a code of practice containing provisions 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; ...." The Code of Practice paragraph 3.5 states that "the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect."
There can be no doubt that it was a reasonable line of inquiry to examine the messages sent by the complainant.
The INITIAL duty on the prosecution to disclose is set out in section 3 of the CPIA which requires disclosure of any prosecution material .. "which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused .."
Where (as here) the trial is in the Crown Court, once there has been initial disclosure a defence statement is required under section 5. The required contents of this are set out in section 6A and include the nature of the accused’s defence, including any particular defences on which he intends to rely. For example, Mr Allan claimed all along that the sex was consensual.
Under section 7A there is an on-going duty on the prosecutor to keep under review the question whether at any given time (and, in particular, following the giving of a defence statement) there is prosecution material which - (a) might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, and (b) has not been disclosed to the accused."
There can be no doubt that the messages sent by the complainant ought to have been disclosed, at the very latest, when the defence had filed a defence statement.
It is reported that the Metropolitan Police and the CPS are to review the case but, in the House of Lords, the Minister ruled out a judge led inquiry into disclosure - Hansard 18th December.
Crown Prosecution Service - Disclosure Manual
Guidelines on Disclosure issued by the Attorney-General continue to be in force
Justice Inspectorates Report 18th July 2016 - Making it Fair: The Disclosure of Unused Material in Volume Crown Court Cases
The Court of Appeal has considered disclosure on a number of occasions - see, for example, this article by 2 Hare Court. Careful note of these cases needs to be taken not only by prosecutors but by defence lawyers.
A further case - referred to as Z - has been referred to the Court of Appeal by the Criminal Cases Review Commission - HERE
The Independent 15th December - Rape trial collapse over undisclosed sex messages blamed on police funding cuts
BBC News 15th December - Student Liam Allan 'betrayed' after rape trial collapse
Criminal Bar Association 18th December -Message from Angela Rafferty QC
Mark George QC - Garden North Chambers - Why the policy of "believe the complainant" was behind the failure of disclosure in the case of Liam Allan
Barrister Blogger - Liam Allan's case shows why our criminal justice system is becoming a matter of national shame
The Defence Brief - Disclosure: Liam Allan cleared of rape
3PB Barristers - Graham Gilbert - Liam Allan: So close to a miscarriage of justice
Law Society Gazette - Sex, Texts and Disclosure - Jessica Parker discusses the reasons behind disclosure failures in criminal proceedings in light of the Liam Allan case.
Kent University News - Sandy Fleming - Expert comment: Liam Allan cleared
Martin Partington blog looking at the Justice Inspectorates report - HERE
Criminal Barrister Blog - Disclosure Doom - Cock up or conspiracy?
The Guardian 22nd December - Liam Allan and Isaac Itiary trials collapses should lead to much needed reform
The Isaac Itiary case - see The Guardian 19th December
6KBW 3rd January 2018 - Disclosure - time to cut the Gordian knot