By Tamara Davis and Dr Don Macfarlane (SBP Law)
WARNING: This article may be regarded by many as unpleasant, concerning, and unsettling. Nonetheless, it is our duty to ensure that victims are protected and offered support within the law.
You may have seen/been affected by the BBC documentary first aired on 10 September 2020 called “I Am Not A Rapist“.
Continuing our recent series of articles on justice, we wanted to follow up with an objective legal article that seeks to try and put the challenging legal issues raised in the programme into some context.
What is clear from the BBC Documentary is Mr Allan feels his future life has been “ruined” by the failed legal process. We know it is never ever straightforward, never black and white, but that said we are talking about a man and his family’s life. Indeed, the lives of many people stand on the precipice facing similar false accusations. This is not an isolated incident, and therefore many lives will continue to face ruin due to false, unsupported allegations (enabled, arguably, by a legal system that often fails to collect the best evidence). Mr Allan’s legal team deserve praise for their actions and willingness to discuss on camera.
So, read the below and ask yourself the question “Does the “stigma” of false allegations ever truly leave someone or does the acquittal just get forgotten with the progress of time?”.
What is a Miscarriage of Justice?
A Miscarriage of Justice is defined as a failure to reach a just goal and occurs in all spheres of the law. In Criminal Law, Miscarriages of Justice can happen when someone is wrongly charged, prosecuted, or convicted of a criminal offence. It is essential to recognise, therefore, that Miscarriages of Justice can occur when an individual is just a suspect in a case – long before they are convicted.
Miscarriages of Justice can be found as far back as the so-called “Campden Wonder” case in 1660 whereby members of a servant family were executed after being wrongly convicted of murdering their master.
The notorious “Guildford Four” case brought Miscarriages of Justice into the public spotlight when four men were sentenced to life in 1975 for their alleged involvement with the IRA bombings. Almost 15 years later it was then discovered that evidence had been tampered with and their innocence was proven.
In a similar vein, having served 16 years in prison, the “Birmingham Six” who had been sentenced to life for the bombings of two pubs in 1991 saw their convictions overturned due to the violent tactics utilised by the Police in obtaining their confessions.
Traditionally, when people think of a Miscarriage of Justice in criminal law, high profile cases that centred around wrongful convictions, such as the “Guildford Four” and “Birmingham 6” spring to mind. However, these cases do not represent a broader understanding of Miscarriages of Justice to include procedural miscarriages. The prefix “Mis” means “ill, mistaken or wrong” and must apply to not only a final court decision but to any decision taken during the criminal process including whether or not to prosecute. It is important to recognise the lasting effects that being wrongfully charged of a crime can have on someone’s career, family life, and psychological wellbeing.
Victims often feel reluctant to bring a ‘rape claim’ or to report a sexual assault due to the prejudice they feel particularly when being questioned by the Police or cross-examined in the witness box. This makes them feel vulnerable and a victim twice over. As if they are the wrongdoer and not the wronged. This has led to a reduction in sexual assaults being reported. The Police and the CPS need to follow the correct procedure to ensure that the evidence is complete and with sensitivity to avoid a miscarriage of justice and a waste of valuable resources and costs.
Several factors can lead to Miscarriages of Justice including the fabrication of evidence (as in the “Guildford Four” case) and unreliable confessions (as in the “Birmingham Six” case). More recently, however, a controversial issue that may lie at the heart of such miscarriages concerns the disclosure of evidence, such as in the recent case of Mr Liam Allan.
The wrongful conviction of Mr Allan
In 2016, Mr Allan was charged with 12 counts of rape and sexual assault. After being on bail for two years, the case against him collapsed three days into its trial when it came to light that the Police had failed to disclose his accuser’s phone records that would ultimately be pivotal in proving his innocence. The failure to disclose evidence is exacerbated with sexual offences cases is because, due to their inherent private nature, there may already be a lack of evidence.
Indeed, Mr Allan’s barrister argued that had the phone records been disclosed to the CPS, they would not have charged him, and this was later confirmed at a hearing on 14 December 2017 when the CPS admitted there was no realistic prospect of conviction. There have been various attempted explanations for what happened, mainly centring on limited resources.
However, the fact of the matter was that there was a Miscarriage of Justice that almost led to an innocent young man spending at least 12 years in prison. It would be nice to think that this case was an outlier, but the reality is that as a consequence of this failure, 600 rape prosecutions across England and Wales had to be re-assessed for potential disclosure errors. Anecdotally, the BBC programme suggests a higher figure is even possible.
Mr Allan has since dedicated himself to ensuring other people do not have to endure the same experiences as he did by co-founding the ‘Innovation for Justice’ project that aims to hold a series of conferences to raise awareness of potentially wrongful convictions and unfair treatment by the Criminal Justice System.
Disclosure: The Rules
Proper disclosure is fundamental in ensuring that the Police only charge and the CPS only prosecute cases with strong evidence (remember the criminal test is “Beyond Reasonable doubt”). In 2018, the BBC revealed that 916 people had their criminal charges dropped due to disclosure failures in 2016-2017 – a drastic increase of 70% from 2014-15.
Moreover, as evident from Mr Allan’s case, disclosure is fundamental in sexual offence cases where, due to their often private nature, there can be little to no witness evidence.
Consequently, in 2019 standardised Disclosure Consent Forms (DCFs) were introduced to authorise Police access to complainant’s digital devices (suspects do not have to consent to the Police seize of their devices). The forms (which are not solely to be used for sexual assault complainants) were justified in an attempt to remove speculation from investigations and explore all “reasonable lines of enquiry”. Whilst complainants are given the opportunity to explain why they do not consent to hand over their devices, Max Hill QC, director of public prosecutions, declared that an ‘outright refusal’ may render the Police and CPS unable to practically prosecute.
However, DCFs were soon criticised and described as ‘digital strip searches’ that treat complainants as suspects, and which may ultimately deter future victims from reporting sexual offences. These concerns led the Centre for Women’s Justice legally challenging DCFs, and in July 2020 they were abolished. This does not mean to say that complainants will never have to adhere to disclosure, but it does mean there will be inconsistency across cases and potentially lead to disclosure failures such as those that arose in Mr Allan’s case. As constable has stated, to achieve a fair trial, it is fundamental to disclose any material that undermines the prosecutions’ case.
It is the authors’ opinion that disclosure issues should not feed into the persistent victim-blaming stereotypes that prevail within our society and that information about the consensual sexual history of a complainant that may arise from disclosure should have no bearing on their case.
Moreover, the authors are sympathetic to the emotional turmoil that disclosure may bring to victims of sexual assault, especially in the context of falling rape charges and prosecutions. Nonetheless, it is crucial that in the technological age that we live in, any and all evidence is made available – and this includes the disclosure of mobile devices.
What compensation is there for miscarriages of justice?
Under Section 113 of the Criminal Justice Act 1988 (CJA), where a person has wrongfully been convicted of a criminal offence and thereafter had their conviction overturned, they may be entitled to compensation. The CJA does not specify an amount; however, the court will assess various losses that arose from the conviction, including loss of liberty.
You may also be entitled to compensation in civil law for Malfeasance in Public Office if, for example, the Prosecution were wilfully neglectful during your case, or for Malicious Prosecution, if the Prosecution was brought against you without reasonable and probable cause.
However, where innocent people have either been convicted and spent years inside of a prison or been subject to the gruelling social discrimination of being charged with a crime (whether prosecuted and/or convicted or not), money may do very little to make amends for the psychological harm and damage to their reputation that they may have suffered and for the years they have lost whilst being incarcerated in prison.
Where to go from here?
A report by HMC Crown Prosecution Service Inspectorate in July 2017 found widespread failures in the disclosure process. Perhaps most concerning, identified a culture of acceptance whereby the Police and CPS actively decide to accept poor disclosure practices due to the volume of their work.
A follow-up report was published in January 2020, which, whilst identifying significant signs of improvement, noted that material was frequently and incorrectly declared non-disclosable.
Whilst charitable organisations such as JUSTICE and APPEAL work tirelessly to represent defendants who are victims of Miscarriages of Justice, they can only do so much. The chaotic approach to disclosure requires a systemic change from within the CJS itself through frequent training and additional resources. The so-called “culture of defeated acceptance” must be challenged and pressure exerted to ensure fair trials become a priority. It is highly recommended that a consistent approach towards complainants’ disclosure is taken to minimise the risk of wrongful convictions.
The right to a fair trial under Article 6 of the Human Rights Act is the cornerstone of our justice system. Therefore, Miscarriages of Justice undermine the credibility, effectiveness and robustness of our criminal legal system. It is important that our understanding of what constitutes a Miscarriage of Justice is inclusive of wrongful charges and prosecutions – not just convictions.
If you feel you have been wrongfully convicted, our specialist criminal defence solicitors have a reputation and expertise for investigating suspect convictions and have your case referred to the Court of Appeal and also get you the compensation you deserve to help you rebuild your life.
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