Rape investigations, disclosure and the Criminal Justice System

Max Saffman considers different aspects to the Liam Allen disclosure case.

The Times ran as its headline story a matter at Croydon Crown Court where three days into a rape trial, after the complainant had given evidence that she did not enjoy sex and certainly didn’t consent to intercourse with Mr Allan, the Judge directed that ‘Not Guilty’ verdicts be entered. The trial collapsed.

The reason being that on day three of the trial and an insistence by new Counsel, the defendant’s phone was properly examined. It revealed messages from the complainant, who the day before told the Jury she didn’t enjoy sex and certainly didn’t consent to sex with him, pestering him for sex and fantasising about rough sex and being raped.

Why was this evidence not disclosed?

It is not clear why this evidence which was in possession of the police at the outset of the investigation was never examined, and more worryingly, if examined not disclosed. The headline writes itself. An innocent man came within a hairs breadth of being wrongly convicted of rape because a combination of the police and the Crown Prosecution Service were not doing their job properly. There is no greater injustice than an innocent man being found guilty. That is why the burden and standard of proof is so high.

However there are two little reported aspects to this story.

Length of time under investigation

Firstly this allegation dated back two years. Mr Allan had been under investigation or on bail for the entirety of the case. This is just as much of a problem as the non-disclosure. How can our Justice System defend or excuse this delay. To have this sort of allegation hanging over ones head for two hours when it is false is bad enough, but two years!  I am currently advising clients ‘Released under investigation’ who are subject to serious allegations that the police are under no statutory duty to expedite their investigation. It is wrong on every level and equally unfair on the complainant as well as the defendant.

Disclosure

Secondly, what were the defence team doing? The law relating to disclosure puts the primary responsibility on the police and CPS to disclose evidence they believe will assist the defence or undermine the prosecution case. This in itself may be a cause of concern, but that discussion for another time. The defence however upon receipt of the disclosure schedule can file a Defence Statement setting out the nature of the defence and requesting further disclosure.

Mr Allen’s instructions must have been the Complainant was consenting and he knew of the existence of these messages. He was the recipient of them. The defence team must have realised this evidence fatally undermined the prosecution case and should have insisted on disclosure of this not on Day 3, 2 or 1 of the trial, but two years prior to the trial. How was this trial even allowed to start when this was outstanding? If the Crown Prosecution Service refused to divulge this information the courts have very wide powers to order disclosure. Was this done? It doesn’t sound like it. The way this matter was reported in the press the defence team were invisible. The prosecutor was the knight in shining armour to secure an acquittal!

Poor Mr Allan. He appears to have been let down by every cog in the criminal justice machine.

Olliers Solicitors – Pro-active Defence

Here at Olliers we don’t allow this to happen. Robust and pro-active intervention by our defence team ensure that despite other failings in the system, we ensure non of our clients suffer as Mr Allan did.

Max Saffman – Specialist Criminal Defence Solicitor

Written by Max Saffman. Max is a highly experienced criminal solicitor and specialises in representation of clients facing investigation by the police at the initial pre-charge stage. If you wish to speak to Max please contact him by telephone on 0161 8341515, by email at maxsaffman@olliers.com or click here to contact us to arrange a consultation.