The Real Reason Rape Cases Are Collapsing

by Ray_North on January 27, 2018

I think we’re up to ten or more recent trials which have collapsed as a result of a failure by the CPS to disclose evidence that is potentially undermining to their case, with countless others now being re-examined to ensure that the rules are being complied with.

The suggestion is being made that dishonest or incompetent police officers are to blame.

They are not.

I’m not saying that there are no dodgy or rubbish coppers, but the fault lies in the systematic underfunding of the criminal justice system over the last twenty years.

Ok, I hear you groan, another fat cat barrister moaning about his salary – so let me explain.

The Criminal Procedure Rules mean that once the police have investigated a case and the CPS have reviewed the evidence and decided to charge, all evidence that they rely on together with any evidence that is potentially undermining or helpful to the defence is disclosed.

In most cases that involves witness statements, any physical evidence (knives, guns etc), forensic evidence and telephone evidence. The CPS lawyer and the instructed barrister are under a duty to ensure that everything is complied with fairly as a failure to disclose will lead to a potential abuse of process or a miscarriage of justice.

Most barristers who prosecute will look carefully through the unused material as they prepare the case – we are not paid for doing this, it is one of the things that we are expected to do for free and, for years, we’ve done it, grumbled a bit, but done it.

In the last few years however, in certain cases, and quite often cases involving sexual crime, the police have seized smart phones. They then download the entire contents of the smart phone – this can come to many tens of thousands of pages and much of it is potentially relevant as the contents of someone’s smart phone can offer a clue as to many aspects of their lives such as where they were, what they were feeling, whether they made admissions or disclosure.

And someone has to read these pages – someone has to wade through the thousands of pages of facebook, instagram, text and twitter nonsense to ensure that there isn’t buried somewhere a nugget that is potentially of use.

The police just don’t have the resources, they are struggling to keep up.
The CPS don’t have the resources, they are struggling to maintain a massive increase in their caseloads, post-Saville, of sex investigations.

So, just send it to the barristers, I hear you say, well, the CPS are told by the Ministry of Justice that they can’t send thousands of pages of evidence to barristers, because, as barristers are paid by the page of evidence, it will lead to an increase in legal aid payments.

So, not surprisingly, it doesn’t get read, it gets ignored, or it gets skim-read – which isn’t great if you are facing the possibility of a fifteen years sentence of imprisonment for a crime of rape that you say you didn’t commit.

I’m afraid that the only way to stop the miscarriages is to properly fund the investigation – give the police the resources to carry out the investigations properly, give the CPS the resources and manpower to review the evidence thoroughly, pay barristers for reading evidence or at least don’t skimp on how much evidence they are allowed to see.

Ask most criminal barristers what is more important to them, doing the job properly or more money, and they will always put their professional commitments first.

But, as is the Tory way, this government wants to do everything on the cheap as it struggles to see the true value of the most important things.

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