Michael Gove urged to stop 'reckless and irresponsible' destruction of Crown Court records

Campaigners say 'Making a Murderer' highlights the dangers of the routine destruction of trial transcripts

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The Independent Online

Important court transcripts which could help prevent miscarriages of justice are being systematically destroyed under Government guidelines. The Secretary of State for Justice, Michael Gove, has been urged to intervene to stop the “reckless and irresponsible” destruction of Crown Court records. 

Leading justice campaigners including Michael Mansfield QC, and Paddy Hill, wrongly convicted of the 1974 Birmingham pub bombings, are calling for an urgent end to the disposal rules. They argue that the records, now stored digitally, should be available indefinitely.

Serious shortcomings in the UK system have been highlighted by the television documentary series Making a Murderer, about the conviction of Steven Avery in the US for a murder he says he didn’t commit. The series revealed that defence lawyers fighting to free him from prison were able to use extensive court records from a 2005 case.

“For all the serious issues Making a Murderer reveal about the US justice system, they highlight a criminal justice process that is far more accountable and transparent than our own,” the campaigners say. 

“The ban on cameras in our courts means that we will never have access to the kind of ‘open justice’ the documentaries depict. In the US, court transcripts are easily accessible and frequently vital in successful appeal work.” Similar records are permanently lost to lawyers and campaigners in the UK unless a trial judge takes the rare step of ordering their preservation.

Most Crown Court hearings are recorded in full. But under Ministry of Justice guidelines, audio recordings are destroyed after five years and digital recordings deleted after seven. Only terrorism and some drug cases are routinely kept longer. 

Michael Gove has been urged to intervene to stop the “reckless and irresponsible” destruction of Crown Court records (Getty)

A letter to the Justice Secretary signed by 35 lawyers, academics and campaigners, points out that “once destroyed, the important verbatim record of what was said in court is lost for ever” including the trial judge’s summing up, which campaigners say is usually crucial to a review of the case.

“This leaves a situation where, commonly, only the stale and fragmented mess of documents from case files, often limited to police interviews, statements and reports given prior to trial, are available to those working on criminal appeals. 

“In this digital age, it is both reckless and irresponsible to systematically destroy the record of court proceedings. 

“Being able to access a record of what was said in court will work towards a more accountable criminal justice system. Appellants in our jurisdiction deserve a justice process that is both open and transparent. 

“It is inexcusable to promote a secretive process where records of important criminal proceedings are allowed to be destroyed within an unrealistic period of time,” argues the letter, which appears on the  Justice Gap website. 

The campaigners cite the case of Omar Benguit, convicted in 2005 of the murder of Korean student Jong-Ok Shin in Bournemouth in 2002. Benguit was convicted after three separate trials on the same murder charge. Juries in the first two trials failed to agree a verdict. Benguit, who denied the charges in court, continues to maintain his innocence, but his conviction was upheld by the Court of Appeal in April 2014.

Campaigners say transcripts from the three trials would have provided invaluable insight into what happened in the court for the third jury to find Benguit guilty beyond reasonable doubt. However, all three sets of transcripts were destroyed before they could be examined. 

Justice campaigners say appeal cases, already suffering because of cuts to legal aid, are further hampered by the fact that the original solicitors’ client files are frequently not available. The Solicitors Regulation Authority (SRA) recommended a six-year minimum retention period under the 2007 code of conduct.

However, the SRA now says this is no longer the case, and that it was “up to individual firms to decide how long a file should be retained”. “There’s no set regulatory requirement for file retention. We expect solicitors to have appropriate arrangements for each client,” a spokesman said.

The National Police Chiefs Authority, which represents the most senior police ranks, recommends forces retain murder case files for at least 30 years. The Ministry of Justice says it had a duty to preserve some records “which it is considered ought to be permanently preserved” under the 1958 Public Records Act. Records not selected must be destroyed.

“There is no requirement under the Data Protection Act or the Freedom of Information Act to hold information for specific periods. The guidelines are in accordance with all our legal obligations.” 

A spokesman said that the Criminal Cases Review Commission had powers to request the retention of court records in the event of an appeal. He added the guidelines were amended last year instructing court staff to retain any documents which related, directly or indirectly, to child sex abuse or child protection.