Out of sight, out of court

Proposed changes to criminal procedure will erode the right to a fair trial, says John Sprack

The new Criminal Procedure and Investigation Act could have serious consequences for the conduct of fair trials in this country. It could lead to more miscarriages of justice and it is of great concern to me as a law lecturer specialising in criminal procedure.

The act, which earlier this month received the Royal Assent, contains important changes in the law regarding disclosure of evidence, which could work in favour of the prosecution and tilt the balance in criminal cases against the defence.

Article 6 of the European Convention of Human Rights guarantees the right to fair trial and states that this implies 'equality of arms' between the prosecution and the defence. The new bill, in my view, will encourage a situation which contravenes this equality. I would expect it to be challenged in the European Court of Human Rights at the first appropriate opportunity.

The present law on disclosure has evolved partly as a result of a number of high-profile cases where the Court of Appeal has overturned convictions because there has been an element of non-disclosure of material by the prosecution resulting in unsafe convictions.

One of the most tragic cases was that of Stefan Kiszco, who served 16 years in prison for the murder of a young girl. There was evidence available at the time of the trial to show that semen stains found on the girl's clothing could not have come from Mr Kiszco, who was infertile, but it was never disclosed by the prosecution.

In the Judith Ward case in 1993, the forensic scientists failed to disclose certain test results that would have changed the course of her trial. They also failed to disclose to the defence the fact that Ward was a compulsive confessor with a record of confessing to crimes she had not committed. She served 17 years in prison, wrongly convicted of murder and explosives offences.

In the case of the Taylor sisters, convicted for the murder of a rival lover in 1992, two pieces of evidence were never disclosed at trial. One of the prosecution witnesses had asked if he would get a reward, thus throwing his testimony in doubt; another prosecution eyewitness identified one of the two women seen near the scene of the crime as black (the sisters are both blonde). Neither piece of evidence was disclosed at the time.

In an adversarial system like ours there is a fundamental problem in that one adversary - the Crown - is inevitably much better-resourced than the other. To create a more level playing field, current UK law provides for the defence to have access to any unused material (provided it is not subject to immunity) that the police have come up with during their investigations, so that they can sift through it looking for information which might help the defence case. The new bill would limit this right.

Since the Judith Ward case, which was the high point of disclosure, there has been an argument that in stating the case so highly the Court of Appeal disregarded the practicalities of prosecution disclosure.

In recent years there has been increasing pressure from the police and Crown Prosecution Service to limit disclosure of material to the defence.

They argue that the resource implications in a big case, where there are whole rooms full of documents, can be enormous. Big cases involving disclosure do increase the workload on the police, who may have to make a room available to defence lawyers and supervise them while they go through the material. So for practical resourcing reasons a case has been made for limiting prosecution disclosure.

But I cannot really see how the new rules will result in a significant lessening of the police's workload because someone will still have to sift through all the material to put it into schedules. If it is done by the police, however, there is a chance that it will not be effective.

Inevitably in the adversarial system, the police as investigators tend to identify with the prosecution: once they have made the decision to prosecute they have an emotional investment and it becomes difficult to change course. This is why in my view we need to give the defence sight of as much of the investigatory material as possible. The act's disclosure clauses, likely to come into force in the spring, may well decrease the fairness of the current position because the onus will be on the prosecution to choose what material to make available. It will be up to the prosecution to decide what may undermine their case. This decision is entirely subjective and will rely on the prosecutor's opinion.

The prosecution must also disclose material expected to assist the accused's defence. The overall effect of the new legislation, however, is that we will see a return to the position before the Judith Ward case, and there are bound to be further miscarriages of justice.

John Sprack is a principal lecturer at the Inns of Court School of Law. The views expressed in the above article are his own.