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Sally Clarke and the Miscarriage of Justice The controversy over the case of Sally Clarke once again highlights the failings of the judicial system in respect of the non-disclosure by the prosecution of evidence in their possession likely to be favourable to the defence. It is noteworthy that in the emotive and sensationalist atmosphere of the Court of Appeal judgement and the issues of cot-deaths, that the main feature of this miscarriage of justice has not been subject to closer scrutiny. Indeed, the prosecution have been remarkably silent on the issue of the non-disclosure of the crucial evidence which would have cleared her at her original trial, had she ever faced trial at all if the evidence had been revealed to the defence. Certainly, it would have been normal practice at post-mortem for the investigating police officer to have been present and for the sequence of the autopsy to have been recorded on audio tape. Throughout the pre-trial proceedings there would have been case conferences between the 'experts' and the Crown Prosecution Service to shape the case for the Crown. It would however be premature to suppose that all those convicted of the murder of their children could rely on the cot death phenomenon or that this defence is available to them. We do not know how aware the prosecution were in presenting flawed 'expert' testimony or whether they knew or had in their possession that evidence which would have cleared Sally Clarke, but it does seem inconceivable that the prosecution were not aware of the inconsistencies More importantly that they compounded that by not disclosing it to the defence. Moreover, that they were prepared to accept preposterous and flawed guesswork and present it to the jury as if it were scientific fact. The role of the 'expert' witness is ostensibly to assist the court and to remain independent in that function. The reality however is somewhat different due to the adversarial process in the criminal trial where each side will present their own 'expert' who will advance an argument favourable to the side who intend to rely on his or her testimony which does little in arriving at the truth. Such 'experts' are in effect the archetypal 'hired gun' who are capable of tailoring their evidence according to the needs of the side for whom they appear. In many cases, 'experts' have almost carte blanche to advance theories and speculation that can render them as being 'loose cannons' which is knowingly overlooked by the side instructing them. Non-disclosure by the prosecution can and does pervert the criminal justice process and is weighted heavily in favour of the prosecution who remain the sole arbiters of what should and should not be disclosed, even though the 'equality of arms' in the adversarial process imposes upon the prosecution an obligation to disclose any material in their possession or which they may have access to which may assist the accused. Clearly this is not happening and it does appear that nothing has been learnt from the Birmingham Six, the Guildford Four, and the later case of Judith Ward. Since then, non-disclosure has featured in several high profile cases at the Court of Appeal, one most notable case being that of me alleged M25 'gang* who had been convicted of murder and other serious offences for which they served several years in prison before their convictions were quashed. Certainly, the European Court of Human Rights have in recent years declared there to have been violations of Article 6 - The right to a fair trial in several claims against the United Kingdom in which non-disclosure was the main issue, ref. Edwards (1998), Jasper (2000), Rowe and Davis (2000) and of course the Guinness three, Lyons, Pames and Ronson (2000). That courts continues to hear similar like cases and with the Sally Clarke case presently in the public view, it is likely that many other cases will consequently turn to the ECHR for a remedy to the non-disclosure of evidence that result in miscarriages, if such defects cannot be remedied in the domestic courts. The Attorney General's Guidelines of 1981 remains the criteria for disclosure of evidence by the Crown to the defence, but it is quite clear that this guide and subsequent case-law still favours the prosecution which is likely to give rise to further miscarriages of justice and consequently unsafe convictions. Charles Hanson HMP Kingston, Friday 7th February 2003. Charles Hanson |