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.

Start your day with The Independent, sign up for daily news emails
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA special investigation by Andy McSmith
Life and Style
Powdered colors are displayed for sale at a market ahead of the Holi festival in Bhopal, India
techHere's what you need to know about the riotous occasion
Arts and Entertainment
Larry David and Rosie Perez in ‘Fish in the Dark’
theatreReview: Had Fish in the Dark been penned by a civilian it would have barely got a reading, let alone £10m advance sales
News
Details of the self-cleaning coating were published last night in the journal Science
science
News
Approved Food sell products past their sell-by dates at discounted prices
i100
News
Life-changing: Simone de Beauvoir in 1947, two years before she wrote 'The Second Sex', credited as the starting point of second wave feminism
peopleHer seminal feminist polemic, The Second Sex, has been published in short-form to mark International Women's Day
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Finance Assistant / Credit Controller

£16000 - £18000 per annum: Recruitment Genius: They are an award-winning digit...

Ashdown Group: Senior VMware Platform Engineer - VMware / SAN / Tier3 DC

£45000 - £55000 per annum + benefits: Ashdown Group: Senior VMware Platform En...

Recruitment Genius: Purchasing Assistant

£10000 - £16000 per annum: Recruitment Genius: A distributor of specialist ele...

Recruitment Genius: Sales Ledger Assistant

£17000 - £19000 per annum: Recruitment Genius: A distributor of specialist ele...

Day In a Page

Homeless Veterans campaign: Donations hit record-breaking £1m target after £300,000 gift from Lloyds Bank

Homeless Veterans campaign

Donations hit record-breaking £1m target after huge gift from Lloyds Bank
Flight MH370 a year on: Lost without a trace – but the search goes on

Lost without a trace

But, a year on, the search continues for Flight MH370
Germany's spymasters left red-faced after thieves break into brand new secret service HQ and steal taps

Germany's spy HQ springs a leak

Thieves break into new €1.5bn complex... to steal taps
International Women's Day 2015: Celebrating the whirlwind wit of Simone de Beauvoir

Whirlwind wit of Simone de Beauvoir

Simone de Beauvoir's seminal feminist polemic, 'The Second Sex', has been published in short-form for International Women's Day
Mark Zuckerberg’s hiring policy might suit him – but it wouldn’t work for me

Mark Zuckerberg’s hiring policy might suit him – but it wouldn’t work for me

Why would I want to employ someone I’d be happy to have as my boss, asks Simon Kelner
Confessions of a planespotter: With three Britons under arrest in the UAE, the perils have never been more apparent

Confessions of a planespotter

With three Britons under arrest in the UAE, the perils have never been more apparent. Sam Masters explains the appeal
Russia's gulag museum 'makes no mention' of Stalin's atrocities

Russia's gulag museum

Ministry of Culture-run site 'makes no mention' of Stalin's atrocities
The big fresh food con: Alarming truth behind the chocolate muffin that won't decay

The big fresh food con

Joanna Blythman reveals the alarming truth behind the chocolate muffin that won't decay
Virginia Ironside was my landlady: What is it like to live with an agony aunt on call 24/7?

Virginia Ironside was my landlady

Tim Willis reveals what it's like to live with an agony aunt on call 24/7
Paris Fashion Week 2015: The wit and wisdom of Manish Arora's exercise in high camp

Paris Fashion Week 2015

The wit and wisdom of Manish Arora's exercise in high camp
8 best workout DVDs

8 best workout DVDs

If your 'New Year new you' regime hasn’t lasted beyond February, why not try working out from home?
Paul Scholes column: I don't believe Jonny Evans was spitting at Papiss Cissé. It was a reflex. But what the Newcastle striker did next was horrible

Paul Scholes column

I don't believe Evans was spitting at Cissé. It was a reflex. But what the Newcastle striker did next was horrible
Miguel Layun interview: From the Azteca to Vicarage Road with a million followers

From the Azteca to Vicarage Road with a million followers

Miguel Layun is a star in Mexico where he was criticised for leaving to join Watford. But he says he sees the bigger picture
Frank Warren column: Amir Khan ready to meet winner of Floyd Mayweather v Manny Pacquiao

Khan ready to meet winner of Mayweather v Pacquiao

The Bolton fighter is unlikely to take on Kell Brook with two superstar opponents on the horizon, says Frank Warren
War with Isis: Iraq's government fights to win back Tikrit from militants - but then what?

Baghdad fights to win back Tikrit from Isis – but then what?

Patrick Cockburn reports from Kirkuk on a conflict which sectarianism has made intractable