The idea that the Police or Crown Prosecution Service will keep evidence that helps you away from the court is terrifying. How do you make sure evidence that supports your case is considered by those who matter? This is the question at the heart of the topic of Disclosure, and it is crucial to almost every Sexual Offence allegation.
Most of us would expect the police to want to catch the criminals. The people that have done it. The guilty ones. And that is exactly what most police officers, perhaps understandably, think is their job as well. But you and they would be wrong, profoundly wrong, and it is this basic, fundamental error that lies at the heart of the problem.
Because who decides who’s guilty? The job of the police is to investigate, investigate whether or by whom an offence has been committed. They have a legal duty to investigate all reasonable lines of enquiry, whether they point towards the guilt or innocence of a particular suspect. It sounds simple, but if you are a suspect in a criminal case, especially a sex case, you had better get used to the idea that this is not how it works. Because victims of sex crime must be believed, a suspect will always be charged unless there is not enough evidence to charge. Thus it is the job of the police to find enough evidence to charge and prosecute.
You might know what important evidence exists that can help your case, such as text messages or Facebook exchanges. Pity those suspects where the police hold or could hold evidence that helps their case that they don't know about. An extra witness here. A useful 999 call there. Social services records. School reports. Text messages to others. Emails and social media content. And ever on.
What can a suspect do about this? Ideally, you act early. If the case is yet to be charged then very proactive pressure at the police station stage can make a huge difference to disclosure later. Not only might a charge be avoided altogether, a foundation can be laid for later disclosure applications. Many cases with disclosure problems arise because an innocent suspect trusted the police to fairly investigate and conclude they are innocent. At the court stage, you or your legal team need a dogged and relentless focus on disclosure from the very beginning. The system is not fit for purpose, but complaining about that will not help you one bit. It is about the detail, often painstaking detail, and being prepared to leave no stone unturned. The defence need the energy and resource to pursue every line, whether or not this is how the system should work. And following the disclosure textbook is unlikely to be good enough. Identifying evidence you know exists but the police have not disclosed can help demonstrate police disclosure failings. The timetable set by the court should not guide the defence, because the police and CPS will ignore it and there is nothing you can do about that. Those timetables are merely a route for the court to pretend they are managing the case, when in reality they are assisting the Police and CPS in getting away with failures to disclosure evidence that does or might help you.
Our Criminal Justice System is meant to convict the guilty and acquit the innocent. In an adversarial, evidence based justice system proper and fair disclosure is simply essential. On the ground, for those facing criminal allegations and especially sexual allegations, it is time to stop trusting the system and start fighting your corner.
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