Disclosure of Evidence in Criminal Proceedings

The House of Lords Library has published a report detailing recent steps taken and investigations dealing with shortcomings of disclosure of evidence in criminal proceedings. The report includes an overview of recent developments as well as discussion of cases such as R v Allan [2017] and R v Mouncher & Others [2011], where disclosure failings were detrimental. Furthermore, it details a number of recent recommendations aimed at the Government, the Home Office and College of Policing to help ensure that the police and Crown Prosecution Service can meet their disclosure obligations.

Source: Parliament.uk

Sexual Offences Anonymity Campaign Launched

A campaign for anonymity during investigations of sexual offences cases has been launched. The campaign group called Falsely Accused Individuals for Reform, has been figure-headed by people such as Cliff Richard and Paul Gambaccini. Under current law, all victims of sexual offences receive lifelong anonymity, however there is no such law for suspects. The campaign is calling for anonymity to be granted until an individual is charged.

The campaign argues that anonymity should be granted whilst an investigation takes place because if allegations are found to be false, a persons reputation could have already suffered sizeable damage.

Current guidelines from the College of Policing advise that individuals are not named until they are charged unless there are exceptional circumstances where there is a legitimate policing purpose to do so, such as public safety warnings. Moreover, the group Rape Crisis have argued that false allegations were rare. Additionally, campaigners have argued that there can be a positive impact such as in the Rolf Harris case when more witness came forward.

Source: BBC News, The Independent

Digital Assistants, Privacy and Security

The Guardian has published a Long Read regarding the rise of digital assistants, such as Alexa and Siri, and covered the following emerging privacy and security issues:

Privacy: Privacy protection is considerably weaker after it is transmitted to the cloud and that, in American law, under the fourth amendment, if a person has installed a device that is listening and transmitting to a third party, then they have waived their privacy rights.

Attacks on devices: Researchers have shown that these devices can be hijacked using ultrasonic frequencies from a portable speaker, and can remain undetected by dimming the screen and lowering the volume. A hijacked device could visit a malicious website, place illegitimate calls and messages, and see and hear what is happening around the victim. These attacks present as security concerns, however could also have an impact on investigations, by altering evidence on connected devices, sending phoney messages, or to monitor, stalk and harass victims.

Ethics: There are ethical considerations as to what responsibility a company has to the privacy of their customer versus the moral duty to report to authorities anything concerning their devices capture. Similarly there is an ethical question as to when it becomes a company’s fault if their device fails to intervene to a situation.

Source: The Guardian

The Civil Procedure (Amendment) (EU Exit) Rules 2019

The Civil Procedure (Amendment) (EU Exit) Rules 2019 will come into force on 1^st March 2019. The purpose of this statutory instrument is to set out the procedure for court reviews in England and Wales against sanctions decisions made under the Sanctions and Anti-Money Laundering Act 2018 (the Act). It makes amendments to existing rules of court (The Civil Procedure Rules) so that the government can apply to the court for sensitive material to be disclosed only to special advocates and the court on the basis of this being in the public interest.

Evidence & Disclosure – Rape Victim’s Phones

The Information Commissioner’s Office (ICO) has announced an inquiry into whether privacy or data protection regulations are being routinely breached in the criminal justice system.

The investigation follows concerns raised by the campaign group Big Brother Watch and other groups about the way private material is collected, analysed and disclosed to detectives, prosecutors and defence lawyers.

There have been multiple complaints from victims and support organisations alleging “excessive use of victims’ personal information in cases of rape and serious sexual assault”. A concern is the Stafford statement, the consent form victims are asked to sign giving police access to their personal data.

Establishing precisely what material is relevant to any rape or sexual assault prosecutions is often the subject of legal dispute. Disputes over late disclosure by police of crucial evidence in rape and sex offences led to scores of cases collapsing this year. A government review found disclosure failings had caused “untold damage” to victims and suspects.

Senior officers have accused the Crown Prosecution Service (CPS) for “raising the bar” of evidence needed for a charge, in the wake of a series of rape cases which collapsed over undisclosed messages.

The CPS insists its regulations have not changed, but admits giving more “pre-charge advice” to investigators and holding refresher training for rape prosecutors earlier this year.

The new director of public prosecutions has pledged that victims’ mobile phones will not be seized “as a matter of course” in criminal investigations.

Is Claire’s Law Effective?

A report by the BBC has questioned the effectiveness of the disclosure process around Claire’s Law, which allows women – and men – to ask questions of police on whether their partner has a violent past. The police can also use it to offer information to people who have not sought it, if necessary. However, official figures show less than 44% of “right to ask” applications resulted in disclosure of information (2,055 out of 4,655).

An FOI request to police forces has revealed that this is mostly because women do not want to hear the information. This could be because they either believe the police are interfering, that they know their partner better than that, or they fear reprisals if found out by the partner.

Police forces should give consideration to how disclosures can be made discreetly and how to engage with women who believe the information would be of no value to them.

Revised Code for Crown Prosecutors

The Code for Crown Prosecutors was revised, with the changes coming into force on 26 October. Significant changes include:

• Prosecutors must consider whether there is any material held by the police or material that may be available which could affect the decision to charge a suspect with any crime.
• For the first time, prosecutors must take into account the degree to which a suspect benefited financially from an alleged offence when deciding whether to charge them. This change is aimed at assisting the court in recovering any assets.
• Guidance on how to apply the Threshold Test has been simplified and updated, to make sure it is only being used where completely necessary and to avoid cases being charged prematurely.

Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System

The Attorney General has published a review into disclosure, which began in December 2017 following a joint inspection of disclosure by HMCPSI and HMICFRS. The scope includes Magistrates’ and Crown Court cases, including economic crime and sexual offences. Whilst the report recognised the improvements being made through the National Disclosure Improvement Plan (which commenced in January 2018), the main finding is that significant improvements can be made in making obligations earlier than is currently the case. Although this would mean more resources are required, there should be efficiencies and improvements realised to reduce the number of non-effective trials by stopping them at an earlier stage.

Rape and Sexual Abuse Victims: Increased Funding and Improved Prosecution Procedures

On Wednesday 7 November the government announced a 10% increase in funding for all victims of rape and sexual abuse. The £24 million over the next three years will be used to provide greater financial security to specialist support services and to give full commissioning responsibilities via control of devolved funding to five PCCs. This is part of the government’s commitment to devolve justice powers in its recognition of the importance of identifying local need.

This funding comes at a time of increased RASSO cases and concerns regarding their investigation. Big Brother Watch, whose concerns are shared by various other groups, is asking the Information Commissioner’s Office for an investigation into CPS requests for unrestricted access to rape complainants’ personal information  Sisters Uncut have also held a recent protest against these requests which this often include routine downloads of complainants’ phone contents.

Max Hill QC, new head of the CPS, has stated that rape victims’ mobile phones will not be seized “as a matter of course”. He expressed ambitions to improve the public’s understanding of the work of the CPS and decision-making and vowed to improve the way that evidence is disclosed to the defence to prevent miscarriages of justice or trials being undermined by newly discovered messages.  The Guardian covered Hill’s defence of a 23% decline in rape charges, who cited improvements in the quality of cases as the reason for the fall.

Alison Saunders of the CPS says the justice system is too under-resourced

In an interview with the Observer, the DPP Alison Saunders, has said that the CPS and the police are too under-resourced to cope. The interview came days before she left the post, to be replaced by Max Hill QC who was the Independent Reviewer of Terrorism Legislation on 1 November.

She has said that the police cannot cope with the volume of data, and that it requires time and skills which are in short supply. This comes at a time when complex crimes such as rape are increasing.