UK Criminal Evidence Delays
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Due to delays in passing evidence to the defence certain building blocks of evidence used against a defendant are not being held by the prosecution, but worst still, the expert who obtains, for instance the tests and results, holds on to them because they claim their client (the Police) haven't made that a term of the instructions to pass them over. The police say they don't need to have it because the expert hasn't said it's necessary so they wont ask for it.
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So what makes me and others think that we should expect, as a requirement, all the mobile telephone/cell site analysis evidence upfront from the prosecution and why do we think, as a requirement, the prosecution have a lawful duty to have obtained all the evidence from their expert, in order to meet the first requirement?
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It is the lawful duty, so we are told, of the prosecution to look at, examine and retain a copy of all evidence (e.g. tests and results) and to conduct an assessment of risk, which is the principle enunciated in the "Golden Rule" by none other than Lord Bingham.
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Examiners/Experts at common law are no longer entitled or permitted to arbitrarily withhold any evidence from their work in a case but are required to produce to the prosecution an index of all used and unused material they are holding which should replicate the actual physical copy of evidence given to the prosecution. So for a case involving mobile telephone/cell site analysis that would mean:
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1) written instructions of work to be undertaken
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2) call records/subscriber details
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3) cell site details and data
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4) GPS/CCTV evidence
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5) handset/SIM (USIM) data and report
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6) copy of the actual radio test measurement results obtained at site and presented in a visible, legible and intelligible format (with the electronic file of the original radio test measurements to accompany them)
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7) copy of the expert's analysis of the results, report and any supporting exhibits
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8) copy of written questions to and written responses from the mobile network operator
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9) material considered and unused material and/or material disgarded as not relevant
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.......and so on.
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This enables the prosecution to sit down and examine what is on file put before them by the examiner/expert (usually the data can be recorded onto a CD costing less than £1.00) and all the material on CD and/or in paper form are identified on a tick sheet. The prosecutor/prosecution should then avail him/herself/themselves of the knowledge of that material by familiarisation with the information on the CD and/or in paper form. As some information may not be readily understood the examiner/expert should be called (by phone, written or in a meeting) to explain material or information not understoood. The risk assessment can then be made.
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It is equally understood that the right of the defence to investigate the evidence held against a defendant was and is to stop cases being brought against anyone where evidence was being withheld, in a deliberate or clandestine fashion, in order to meet the principles of ECHR (Foucher v France). No evidence on file can be withheld from a defendant and no steps should be taken to find mechanisms to avoid holding or hiding evidence from the defendant. For the avoidance of doubt, I am not referring to public interest immunity (PII) information, which is another matter entirely.
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So it is easy to see the principles enunciated by Lord Bingham in the Golden Rule contain impeccable logic and foresight. The Golden Rule requires the prosecution to logically assess that it has a complete copy of the evidence e.g. tests and results and if they were not held by the prosecution:
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A) How would it be possible for the prosecution to conduct a risk assessment without the full evidence made available to them from their examiner/expert?
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B) What happens, for instance, if the examiner/expert dies and no one can find the test results?
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.... and the list goes on.
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So what are the current delays? Whenever asking for standard mobile telephone evidence, for instance items such as cell site radio test measurement data or ask for corroboration of enquiries to and written responses from the mobile operator, the prosecution do not readily hold the evidence and massive delays ensue until just before going before the Judge part of the evidence suddenly emerges and then the defence are left to hurry an examination of that evidence.
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I have a case on right now where I requested evidence on the 6th March 2009 and apart from the prosecution correcting mistakes in their material which the defence had to point out to make any sense of what the prosecution's evidence was meant to mean, the other corrobating information expected to be found in the file or CD under the Golden Rule principle and could/should have have been disclosed up front in March, this still has NOT been served. For instance, the radio test results have still not been served along with other information.
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These delays impact by causing problems for the defence in many ways. Some examples are:
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i) Defence experts are expected to tidy up the technical errors and mistakes (not typos though) with the prosecution's evidence. This implicitly means though that defence experts are acting as quasi-prosecution experts. These errors and mistakes are red-herrings though and occupy defence time to put them right, so by the time the requested evidence comes through the trial date is upon us and then the defence have limited time to conduct a proper and orderly analysis, which implicitly means the defence are equally being cajoled into overlooking some evidence or make mistakes due to being rushed.
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As a side matter that is also concerning. If by chance some were to suggest that the observation about quasi-prosecution experts is not true, then consider this. If defence experts were to write reports delivered at court before the jury identifying all the inherent technical flaws and what evidence had not been served or served late just before/at trial, a defence expert would be more likely to get a reprimand from the Judge for wasting time and for not raising it sooner. In the alternative, the prosecution would go away correct the mistake and put version 4 of the evidence before the jury. It still means the same thing though, that defence experts are being placed into the position of acting as quasi-prosecution expert because the work they do identifying those corrections will be used against a defendant. My natural instincts tell me this is an appaulling breach of human rights. It will take someone with a far greater mind than mine, maybe even Lord Bingham, himself, to put that in the appropriate legal context highlighting that injustice in the current criminal evidential procedures.
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Additional note: When mentioning human rights and injustice, my comments are not intended to campaign to get criminals off, my intentions are clearly about the rules that define how evidence should be presented and the roles people play in that process and about evidence generally. It is also about safeguarding our rights, our childrens' rights and our families' right to a fair trial in Britain, as opposed to deciding who gets the better court case based upon who understands what evidence should have been presented at the outset.
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ii) The discussion being raised is not about where mobile telephone evidence suddenly becomes relevant just before or during a trial and taking everyone by surprise, it is where the evidence has already been examined and the delays to present the evidence to the defence means changes that can be happening in the radio network or the operator deletes data after a period of time prevents the defence from pursing lines of investigation of their own or conducting tests. The delays muddy the waters for the defence to properly do their job.
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iii) Where the defence expert is prevented from knowing the weight of the technical case against a defendant it means the defence expert cannot properly advise the defence solicitors. More importantly this handcuffs the defendant from knowing the prima facie case against him or her.
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iv) Another matter which is causing headaches: by the prosecution's actions of delaying service of evidence which they already hold (Golden Rule requirement) but they choose not to disclose for months on end impacts as defence experts cannot afford the time locked to a case over a long period. More importantly, as cases that run for months and months means the defence expert is not being paid until the end of the case it is just not financially viable for the defence expert to take the work. Consequently defence experts are being driven out. It should be noted also defence experts have no powers to demand evidence, we can only ask. This means that we are left to correct the prosecution technical errors and point out in advance the missing evidence (see - i) quasi-prosecution expert, above).
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These evidential delays have not just started but have been going on, and with increased regularity, long before the recession started, so the recession is not the reason for the delay occurrences. The delays are not stated in procedural requirements and are not stated to be accepted because they (the delays) are usual, standard practice. The remedy to make these problems to go away is absolutely clear and easy to achieve and that is for the prosecution to stop the delays in serving evidence and present it up front, without delay, in every case using the Golden Rule evidential acquisition process needed in order to conduct a risk assessment. The CD/paper work can then be immediately passed to the defence without delay.
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UPDATE
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Just wanted to add an extra piece to this discussion that I had considered when forming my observations.
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The case in point deals with fairness, not simply from a defence view point but prosecution, too. When requesting evidence it is a 'requirement' of the defence expert (thus defence) if, during examination and analysis, there is something wrong with the evidence or there is evidence missing that the defence expert should ask for it no matter how late in the day.
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That is because if the defence expert doesn't ask for it the defence cannot request it and it could lead to an unfair trial. So when it is thought I am giving the prosecution a hard time over requesting evidence and asking them where is this particular piece of evidence that they would naturally need in order to know whether, say have the Masts changed or not before testing, it is not my intention to make someone look bad, or imply they don't know what they doing or in some way create difficulties.
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As an expert there is a requirement to inform the defence, whether they like it or not, tedius or not, the expert must put it to them and seek the evidence or understanding about the evidence. That is because it is the duty of the defence to raise it to the prosecution so that prosecution are given a fair chance to deal with the request.
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For the discussion in this thread it took account of the Gleeson principle, which I record below.
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Testing the evidence: In our adversarial system, the defence, of course, are entitled to exploit adventitious faults and failings by the prosecution. Auld LJ in his Report of the Criminal Courts Review incorporated into his judgment in the case of Gleeson [2003] EWCA Crim 3357 at paragraph 36, in which he said:
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"To the extent that the prosecution may legitimately wish to fill possible holes in its case once issues have been identified by the defence statement, it is understandable why as a matter of tactics a defendant might prefer to keep his case close to his chest. But that is not a valid reason for preventing a full and fair hearing on the issues canvassed at the trial. A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles."
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Some important words there are "....once issues have been identified by the defence statement....." and "Requiring a defendant to indicate in advance". How can that be done if the defence expert has seen errors or omissions in the prosecution evidence but then goes on not to ask for those gaps to be filled?
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The problem here will be that where evidence is trickle fed to the expert s/he will always be tactically put on the back foot so as not to catch up, thus potentially failing the principle whereas if all the evidence is disclosed up front would that problem still exist?
