BBC Panorama Reveals Police Complacency on Non-Disclosure of Digital Evidence

From BBC News, January:

A man who had a rape conviction overturned after spending two years in prison has said he feels “devastated” and “let down” by the justice system.

Deleted Facebook messages were found by Danny Kay’s sister-in-law leading to the Court of Appeal quashing the conviction.

He said he fears people will always have “doubts” about his innocence.

Derbyshire Police said its investigation will be independently reviewed so “lessons are learned”.

The case has now featured in a BBC Panorama documentary about the late disclosure and non-disclosure of defence evidence in criminal trials – and Derbyshire Police are no longer talking about the need to learn lessons. As summarised in the Sun:

Derbyshire Police told the programme that using only the complainant’s Facebook messages was a proportionate response and that its investigation into Danny wasn’t criticised by the Court of Appeal.

Anyone who has made a complaint about how a police force has handled a matter will instantly recognise this stonewalling attitude. There is no attempt to engage with the substance of a complaint – instead, members of the public are fobbed off with a complacent and dismissive statement that everything has been done correctly, in the face of overwhelming evidence of serious failings.

The Panorama programme also highlighted the case of Clive Steer, a Surrey businessman who recently went on trial accused of bribery; as was reported by Get Surrey in February:

By the time the case was dropped, it had become clear the police officers had failed to examine Mr Steer’s laptop, despite him telling them 18 months previously it contained key evidence.

…Eventually, Mr Steer’s barrister, Julia Smart, obtained a court order requiring the CPS to release his laptop so the defence could examine it themselves.

…Mr Steer said: “I had to do the police’s work for them. We found 246 examples proving my innocence and sent them to the CPS.”

…A CPS spokesmann said: “Following a review, the CPS decided the evidential test in this case was no longer met and offered no evidence against the defendant in January 2018.

“The CPS complied with its disclosure obligations in this case. There were more than 110,000 emails retrieved from the defendant’s hard drive.

“The defendant did not submit a defence case statement but in November 2017 highlighted a small number of emails as being potentially undermining of the prosecution case…”

Note there the gratuitous reference to “more than 110,000 emails”, implying a huge cache that it would be unreasonable for officers to have to wade through – and the police response in Panorama was to emphasise the general problem of dealing with huge amounts of digital data.

This supposed obstacle, though, disappears when the context is taken into account. In the Kay case, the prosecution relied on a doctored Facebook message thread provided by the complainant: the police needed only to check the same thread in Kay’s Facebook archive, not trawl through all his messages. And in the case of Steer, he could have “highlighted” the “small number of emails” months previously had he not been deprived of his laptop. Presumably it was impounded to prevent the potential deletion of prosecution evidence, but this does not explain why the laptop could not have been brought to an interview room and Steer allowed to guide an officer to the crucial 246 messages.

I would advise anyone who has come to police attention as a suspect to be on their guard. Do not assume that an obviously vexatious or trivial allegation will be recognised as such, or that a misunderstanding will be ironed out with an informal chat. Instead, take it that the police are interested only in building a prosecution case, however flimsy or constructed in bad faith.

Excursus

Although not discussed in Panorama, Steer’s case also brought to light evidence of police misconduct in a different context, after unrelated material was mistakenly sent to his defence. The story is covered here.

One Response

  1. I have been a victim of a miscarriage of justice, due to non disclosure of evidence.

    Why has no investigator or CPS Prosecuting Lawyer been charged with a criminal offence and publically named and shamed, as those who are wrongly convicted are.

    A finding of being in contempt of court may result from a failure to obey a lawful order of a court, showing disrespect for the judge, disruption of the proceedings through poor behaviour, or non-disclosure of material, which in doing so is deemed likely to jeopardize a fair trial. A judge may impose sanctions such as a fine or jail for someone found guilty of contempt of court.

    If non – disclosure of material, which prevents a fair trial occurs, why has no one been charged with Contempt of Court.

    I sent a report and a dossier of evidence – from a SAR to the CPS, demonstrating the deliberate, successful attempts to pervert the Course of Justice by the CPS employed case lawyer. I have heard she is now no longer employed by the CPS. I have not received an apology and I don’t expect I ever will. The response I have had from the CPS and the Attorney Generals Office is one of annoyance for exposing, with evidence, the tried and tested methods to secure convictions.

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