Criminal Cases Review Commission

Unfair Legislation
By a solicitors clerk

The Criminal Cases Review Commission
A small step in the right direction. The CCRC does have more powers than the former Home Office Department C3; they can order the reinvestigation of cases by other police forces, however they are still bound by the same laws that were in place before its creation. As with the old system, the CCRC cannot refer a case back to the Court of Appeal unless their enquiries reveal new or fresh evidence.

New evidence is that which was not known, or could not reasonably have been known, at the time of the trial. This is extremely difficult to establish. If for example, the defence failed to interview a witness, who was readily available at the time, and it comes to light that the witness can offer new evidence to a case, it will not be regarded as new evidence, or admitted for appeal, because it will be regarded as evidence that could have been known during the trial.

To make matters worse, a poor or negligent defence is not grounds for an appeal. The barrister in charge of the case can override the wishes and instructions of his client if he believes that in doing so it is in the best interest of the client. This is very dangerous if the barrister is not in possession of all the facts and background to the case. The barrister will justify his actions by blaming the solicitor for poor preparation.

Criminal Justice and Public Order Act 1994. (The CJA)
The then government brought in legislation to make it all the more difficult to defend the accused whilst under arrest at a police station, or at court.

Section 33 and 34 of the CJA governs the right of silence. Before this act the defendant was entitled to say nothing to the police, the onus was squarely on the police to prove their case. The new act says, that the if the accused remains silent and fails to mention any fact which he later relies on in court in his defence, adverse inferences can be drawn by the court and the court may doubt the truth of any later explanation given by the accused in his defence. In other words the court may form the view that the accused has dreamt up his defence since his interview with the police.

The danger is that when a person is under arrest and does not have the benefit of a solicitor present, he alone has to choose whether or not to speak to the police, he may not have the ability to express himself clearly. This is a huge decision to be made in the absence of legal advice and the consequences at court are never apparent to a lay person.

It is wholly wrong and unjust for suspects detained at the police station not to understand or appreciate the consequences of remaining silent during a police interview. The police are in a position to exploit this aspect of the law. If for example they have a weak case and are aware that the suspect is denying the charge they could by not explaining the consequences of silence, manipulate a situation whereby the suspect remains silent and inferences are drawn by the court to bolster the case against him.

Criminal Procedure and Investigations Act 1994 (became law in April 1997).
This act covers the disclosure of evidence to the defence. Again this is a very complex issue but in practise the following happens.

The police commence an investigation and the officer in charge appoints a Disclosure Officer. (If it is a small case then the officer in charge is automatically the Disclosure Officer). This officer is responsible for disclosing the evidence to the CPS (The Crown Prosecution Service). He will decide what evidence is of use to the prosecution and what evidence is of use to the defence. Evidence that is of use to the defence should be disclosed to the defence by the prosecution.

What happens in practise is that only the evidence which the prosecution intends to rely on to prosecute, is disclosed to the defence. Any other evidence that may be useful to the defence and not relied upon by the prosecution is provided by way of a schedule or list of other material in possession of the prosecution. This list contains the names of witnesses or exhibits. In order to find out what a particular witness has said or the significance of a particular exhibit (a telephone record, bank statement for instance) the defence has to supply a statement within 14 days of the date of the letter from the CPS enclosing this list, giving details of their clients defence and the reason why the defence want any item on this list.

Their clients defence having been revealed to the prosecution, it is then recorded. Should their clients defence change when the case gets to court, the court may draw an adverse inference from this. If the statement or exhibit is of no use to the defence then the defence has disclosed its hand to the prosecution unnecessarily and is now at a disadvantage.

Revealing the defence case gives the police the opportunity to reconsider their position or obtain further evidence. It also gives them the opportunity to approach potential defence witnesses leading to the influencing of these people and the suppression of their evidence.

There can be a large number of witnesses or exhibits on the schedule and no way that the defence can know what witness or exhibit is relevant to their client. The disclosure officer is responsible for compiling the list and could easily leave items off the list to suit the investigation. NOT everything found, obtained or investigated by the police appears on the list.

Recently, in a very serious case, the disclosure officer had access to important documents. He told the bearer of the documents that the information contained was of no use. The defence knew of the existence of the documents but did not know which agency to approach to gain access. When the documents were eventually traced they contained information vital to the defence. The police should have revealed the whereabouts of these documents and included them on the schedule. The truth was that the information contained therein was damaging to the prosecution and the police were mindful not to assist the defence. Had it not been for diligence by the defence the evidence may not have been discovered prior to the trial, or indeed discovered at all by the defence

Clearly the defence should be given equal access to ALL the evidence in an investigation. Until there is full disclosure to both sides of EVERYTHING held in police files during an investigation, miscarriages of justice are bound to continue to occur.

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