Forensic experts warn of new era of injustices

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The Independent Online
Legal and forensic experts warned yesterday that the seeds had been sown for a new era of miscarriages of justice to rival the scandals of the Seventies.

Under new evidence-disclosure rules to be introduced next week, the experts say, past injustices such as the Birmingham Six, the Maguire Seven and the Bridgewater Three might never have been detected.

Eric Shepherd, the forensic psychologist who first cast doubt on the Bridgewater convictions, and Roger Ede, secretary to the Law Society's criminal law committee, warned that the new provisions would store up potential miscarriages because of the power the police would have to make key decisions about an accused person's possible defence - at the very time they were seeking to construct a case for the prosecution.

The new rules, in the 1996 Criminal Procedure and Investigations Act, cover all investigations beginning from next Tuesday and significantly restrict the volume of material gathered by police during an investigation which must be disclosed to defence lawyers. Police will decide what should be disclosed, except where defence lawyers can show additional material is relevant.

Tony Girling, the Law Society's president, said the Act put a substantial duty of trust on the police but it was unrealistic to expect them to be impartial. "They are not trained to look at the defence perspective. It is unreasonable to expect an officer to help dismantle the case he has just constructed."

Mr Ede, co-author with Dr Shepherd of Active Defence, a book designed to help defence lawyers deal with the new rules, said the Act effectively expected the police officer to do the job of a defence solicitor.

The new rules follow a suggestion by the 1993 Royal Commission on Criminal Justice that existing disclosure rules needed some amendment - but the Act goes much further. Michael Zander, professor of law at the London School of Economics and a member of the commission, said yesterday: "There are going to be miscarriages of justice."

Jim Nichol, the solicitor who fought to secure the freedom of the Bridgewater Three, said at the book's launch that he was "terrified" by the Act, which he predicted would lead to a series of miscarriages.

Dr Shepherd said the Act, which was passed with minimum opposition in the Commons, failed to acknowledge that investigating police officers operated with a completely different mind-set. "The seeds of a miscarriage of justice are sown very early in the process and it just gathers momentum," he said. There were also no sanctions against police officers disposing of material which they viewed as ancillary.

The failure of police and the Crown to disclose evidence inconvenient to their case has been the key feature of most of the major miscarriages of justice over the past two decades. Other cases include the Guildford Four, Judith Ward, and Stefan Kiszko. Lawyers now fear that the Act will reintroduce a culture of non-disclosure.