After lunch, Liam Allan’s barrister Julia Smart gave an electrifying talk, outlining the extraordinary failings of the police and the prosecuting authorities in his case. How did she find herself at 2.00 a.m. on the second day of his trial, going through a disk containing over 2, 000 pages of evidence, that had not previously been disclosed to the defence?
The Officer in Charge (OIC) has a duty to investigate all reasonable lines of inquiry, both pointing towards and away from a suspect. In this case, the accuser’s mobile phone was downloaded, and the download included deleted messages. There were over 40, 000 messages in this download. The first problem was that the OIC had, seemingly, failed to conduct a proper search of this material using targeted word searches, such as “Liam”.
Second, the OIC failed to enter the existence of the disk on the MGN6 Schedule (the disclosure schedule), which is supposed to include unused material that may assist the defence. Smart commented that this obligation is usually ignored by police.
The third problem was that the CPS should have reviewed all the disclosure material. The CPS is under a continuing duty to consider disclosure and whether it has been properly carried out. Clearly, that didn’t happen in Allan’s case.
Fourth, when the CPS instructed counsel, he (or she) did not insist that the disk be entered on the disclosure schedule and served on the defence. So how did Allan’s defence team get to hear of its existence?
Smart explained that very shortly before the trial, she saw that the CPS had uploaded a series of What’s App messages between the complainant and a friend onto the digital case file. That raised the obvious question: where had those messages come from? She explained that the defence team had previously requested that the police and CPS serve anything of relevance to the defence including anything from social media.
By then, Jerry Hayes had taken over the prosecution case. Smart approached him at court and asked him to explain the source of the messages. “There must be a download. Its existence has not been disclosed. Where is it?”
Hayes suggested that it must have come from a download of the friend’s phone! The OIC told her two things that were wrong: that there were 2,500 messages. No, there were 2, 500 pages of evidence. He also claimed that there were no messages between Allan and the complainant, and that the messages were “girly chat”. Smart explained that “girly chat” was precisely what she was interested in.
Hayes said that this material had already been reviewed by the OIC, the CPS and Counsel. It was clearly not disclosable. The judge was not helpful. So Smart requested that Jerry Hayes review it.
Hayes then gave her the disk to review overnight, commenting that he couldn’t see anything of relevance in it, having browsed the first couple of hundred pages.
This was very far from being the case. What Smart saw in the small hours was that the accuser had deleted Allan’s name from her contacts list. This meant that messages between her and Allan did not give his name. As for the contents: it was one of those “WTF” moments. The next morning, she explained to Hayes that the prosecution case could not be allowed to continue. It had no reasonable prospect of success. To her surprise, Hayes got The Times involved. The result was a perfect storm of publicity.
Smart then went on to outline some wider problems with the criminal justice system. She criticised DPP Alison Saunders’ “ridiculous” stance on the disclosure crisis, which the CPS tried to cover up. In its review, Allan’s case was not even recorded as a disclosure case!
Defence lawyers are not paid to read the “unused material”, which she described as an absolute disgrace. Very talented people are leaving the Bar, and criminal defence solicitors’ firms. The fabric of the court buildings is neglected; the staff, who can provide so much help, are being cut back. The whole system is creaking to a halt: “it’s a husk”.
The media and those in power have realised that the Government cannot get away with starving the system of funds. There must be more money. She said that the criminal justice system should be a benchmark of civilisation in this country. Who can tell if they are a victim of an investigation that has not been conducted properly and fairly? There were steps in the right direction, but we need to keep the pressure up.