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Blog entry 8th August 2017

The Police and Criminal Evidence Act (PACE), is the central article of legislation in criminal trials. It defines how evidence has to be gathered, stored, handled, recorded and, most importantly, disclosed. So why do the police often fail to pass evidence to a defendant's legal team that would either undermine or completely collapse their cases against the accused?

In fact, deceptive actions of this nature by British police forces up the down the country are so prolific that the Criminal Cases Review Commission were given cause to raise the non-disclosure of evidence, benefiting defendants, by the police, as a specific concern. This led to a specific investigation by Her Majesty's Chief Inspectorate of Constabularies. Part of their findings includes that the lack of proper case supervision by police forces was a "significant concern" and that "police recordings (documentation of both sensitive and non-sensitive material)" was lacking. They also found that this endemic practice was not being challenged by the Crown Prosecution Service (CPS). In response CPS Chief Inspector Kevin McGinty conceded that this departure from the legal requirements of PACE has a 'corrosive effect on the criminal justice system' and 'undermines the principles of a fair trial' (The i newspaper: 19th July 2017, page 8).

For many prisoners sat in prisons and who maintain their innocence the police's non-disclosure of evidence that benefits their defence/appeal cases will be central to their cases. It is an issue that is prevalent throughout my own case. Anyone who has read my previous blogs will be well aware that Kent Police withheld key evidence that supports my defence and innocence both at my trial and now.

This includes:-

  • 300 pages of forensic evidence.
  • The murder weapon and all documentation relating to it.
  • A medicine bottle that proves my alibi.
  • Witness statements that prove my alibi.
  • Evidence of a footprint at the crime scene that does not match me.

Had any areas of these areas of undisclosed evidence been handed over by Kent police to my defence ream pre-trial it could have been used to raise 'reasonable doubt' with my trial jury. Together they could have collapsed the police's and CPS's case entirely. It is therefore obvious why Kent Police, in collusion with Kent CPS, chose to ignore the lawful requirements of PACE and not disclose these evidence items so that they could be used to prove my innocence at trial.

As Pace requires the police and CPS to hand over any evidence that may undermine their case for conviction to the defence legal team, how do they get away with withholding key evidence in favour of the defendant again and again? Incidentally, the police withholding evidence that they know damages their case for conviction has been an endemic practice for decades, not just recently. Review any successful appeal that relates to serious crime and inevitably a key component of that appeal will include the investigating police force withholding evidence that they knew would damage their case.

The ambiguity in PACE is found in its associative act. Namely the Criminal Procedure and Investigation Act. Section 7: Part (2)(a) states:- "The prosecution must - disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might be reasonably expected to assist the accused's defence as disclosed by the defence statement". This requirement is further reiterated in the act in respect of secondary disclosure. Section 7A: Part (3) states that:- "If at any time there is any such material as is mentioned in subsection (2) the prosecutor must disclose it to the accused as soon as is reasonably practicable ". Whilst this all seems clear cut, it is not. In section 7: Part (2)(a) note that the term "which might be reasonably expected to assist the accused's defence". This allows the police and their prosecutor to use personal opinion as to whether or not evidence should or should not be disclosed to the defence. In numerous successful appeals where the police and CPS have failed to provide evidence they had undermining their prosecution case, they have used this ambiguity in the act to excuse their deceptive actions. Consequently, no police force has ever faced successful legal proceedings for failing to comply with those law acts. Even when appeal court judges have been scathingly critical of police and CPA officials actions in this aspect

Until this ambiguity is removed from these acts of the law and, the police and CPA are required to give the defence full and unfettered disclosure of evidence, particularly that which argues against their case for prosecution, they will continue to exploit this legal loophole to deny defendants a fair trial and send more innocent defendants to prison - often for decades.

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