Tag Archives: disclosure

Police trained to hide helpful evidence within sensitive material schedules

Following on from the revelations about failures in disclosure identified last year, on 3 April The Times published further information about the scale of the failure by the police and sensitive materialprosecution to disclose evidence vital to fair trials.  It is claimed that the failure to disclose such key evidence is both routine and deliberate, including hiding evidence within sensitive material schedules.

These reports are against a background of interest in the criminal justice scheme, including a BBC Survey, the publishing of a Charter for Justice and a campaign to send every sitting MP a copy of the recently published book by the Secret Barrister about the crisis in the criminal justice system.

A dossier has been produced that draws on the reports of a number focus groups held with the police, prosecutors and judges.  The file also includes the results of a survey of prosecutors.  It was obtained by the charitable organisation The Centre for Criminal Appeals.

Helpful evidence hidden on sensitive material schedules

The research has identified a commonly held view that the defence is not entitled to see evidence that might undermine the case sensitive material scheduleagainst an accused.  Tactics are adopted by the police to stop it being handed over.  At least one force trains its officers to hide such material in a ‘sensitive material’ schedule which means the defence are unlikely to discover that is exists and disclosure may well be avoided.

One comment from a police focus group was ‘If you don’t want the defence to see it, then [evidence] goes on the MG6D’, this list of ‘sensitive material’.

A prosecutor is quoted as saying that ‘In even quite serious cases, officers have admitted to deliberately withholding sensitive material from us and they frequently approach us only a week before trial.  Officers are reluctant to investigate a defence or take statements that might assist the defence or undermine our case”.

Material should only appear on a sensitive material schedule where the disclosure office believes its disclosure ‘would give rise to a real
risk of serious prejudice to an important public interest.’  The reason for that belief should also be stated, and the officer must sign off on the schedule.

It is envisaged that such sensitive material will not just be that which helps the defendant. Instead, examples are:

  • material relating to national security;
  • material received from the intelligence and security agencies;
  • material relating to intelligence from foreign sources which reveals sensitive intelligence gathering methods;
  • material relating to the identity or activities of informants, or undercover police officers, or witnesses, or other persons supplying information to the police who may be in danger if their identities are revealed;

As a result it is unlikely to include evidence that simply points to the innocence of a defendant.

Prosecution also at fault in disclosure decisions

However fault is also identified on the part of prosecutors.  Sometimes this is due to the volume of cases, in combination with a lack of time to do the job properly, poor quality police investigations and the pursuit of ‘wrong’ priorities.

It remains to be seen whether the new Director of Public Prosecutions who will replace Alison Saunders when her contract expires in the autumn will have the resources to effect any meaningful change.

Instruct VHS Fletchers to ensure adequate disclosure

A judge within one of the focus groups observed, ‘There seems to be an idea that the defence is not entitled to see things but where the defence press matters, this yields results.’

As a result, until the culture changes and more resource is made available, to a great extent an accused will be dependent upon their sensitive material scheduleslawyer identifying whether material is likely to exist and make an appropriate application for disclosure.

Our team of experienced Crown Court litigators and advocates will ensure that disclosure in any particular case is meaningful, rather than, as one prosecutor put it, ‘more of an administrative exercise‘.

You can read about two recent cases where our requests for disclosure made a difference here and here.

Find your nearest office here or use the contact form below.


Not guilty verdict after Paedophile hunters fail to produce evidence

Chesterfield Crown Court litigator Ruth Campbell and Nottingham Solicitor Advocate Andrew Wesley were recently instructed in another case involving a prosecution dependent on evidence provided by paedophile hunters.  An outline of a previous case that failed due to problems with such evidence can be found here.

There client had an unusual defence to put forward.  He had logged into an adult chatroom.  He believed that any conversations he had online, and later on other social media threads, was with a person pretending to be a child for the purposes of a sexual fantasy.

His instructions were that a full record of each conversation would support his account.  As a result, immediately following his not guilty plea, specific enquiries were made of the prosecution.

Evidence required from paedophile hunters’ phones

In order to establish the evidence that could lead to our client’s acquittal the following information was requested:

  •  full threads of the messaging from the adult site taken from the paedophile hunters’ phones
  • similar threads from other messaging apps used to communicate, again from their phones
  • the profiles that the hunters were using on the adult site
  • our client’s profile

It appears often the case that the police are content to rely upon screenshots given to them by the paedophile hunters.  As a result, paedophile hunters not guiltythe prosecution is dependent upon evidence that may be incomplete.  It a client intends to advance a defence it is vital that these enquiries are made immediately.

The witnesses also maintained that our client had made a confession that had been filmed and streamed.  The footage located online was only partial and did not contain a confession.  That material was also sought.

The prosecution asked for the case to be brought into the list several months before the trial date.  This was because, as a result of our enquiries, they had look at the case and intended to offer no evidence.  This was because the prosecution had been unable to secure the evidence that we had requested and as a result could not check its veracity or accuracy.

paedophile hunters chesterfield solicitors not guiltyThe evidence had not been preserved by the witnesses themselves, and was no longer available.  A software corruption had also occurred which mean that the phones could not be properly interrogated now.  Finally, there was no footage said to contain a confession to the offence.

Paedophile hunters ‘need to be aware of the rules’

The Judge hearing the case observed that in terms of case numbers, prosecutions dependent upon evidence from paedophile hunters paedophile hunters legal representationwas a ‘growth area’.  Although a large proportion of these cases result in a guilty plea, particularly where charges are backed up with a video of a meeting.

He went on, however, to express a real concern about the nature of the ‘investigators’, accepting that this was in many cases a ‘loose’ use of the term.  The Judge expressed concerns that they operated outside any statutory scheme of evidence preservation and disclosure.  If they were to continue in such cases, his view was that they ought to be made aware of the rules.  If they do not consider and comply with the rules, they won’t be a help and their conduct will lead to more cases with difficulties such as this one.

Contact a Crown Court litigation specialist

chesterfield crown court litigator Ruth Campbell
Chesterfield Cown Court litigator Ruth Campbell

It may be that you face potential proceedings based on evidence provided by paedophile hunters, or another serious allegation.  If so, you will wish to instruct a Crown Court litigation and advocacy team that will takes steps at an early stage of proceedings to advance your case where necessary.

Ruth is based at our new Chesterfield office.  You can find the contact details here.  Alternatively you can use the contact form below.  If one of our other offices is closer to you then please contact the one most convenient to you for an appointment.


BBC Justice Survey of practitioners about disclosure concerns

The BBC Justice survey is the result of the recent collapse of several rape cases that brought to public attention widespread concerns with disclosure practices across the Criminal Justice System.

The BBC, along with The Criminal Law Solicitors’ Association, The Criminal Bar Association and The London Criminal Courts Solicitors’ Association, would like to hear from legal professionals about the disclosure concerns behind the headlines – identifying disclosure issues that arise on a day-to-day basis in the police stations, Magistrates’ and Crown Courts.

It may be that the police have refused to give adequate disclosure for the purposes of advising prior to interview; the IDPC provided for the first hearing contains inadequate or no witness statements; there is no MG6C provided for trial; disclosure ordered by the court has still not been provided despite the expiry of time given; trials or hearings have been delayed or adjourned because of late, inadequate or no disclosure given to the defence.

The survey is open to members of The Criminal Law Solicitors’ Association, The Criminal Bar Association and The London Criminal Courts Solicitors’ Association, and all solicitors and barristers currently practicing criminal law in England & Wales.

The BBC want you to tell them about your experiences over the past 12 months.

The survey only takes a few minutes to complete. All responses will be treated confidentially.

The link to the BBC Justice survey can be found here.

The closing date for responses is Tuesday 20th February.


Problems with Crown Court Disclosure

When the Director of Public Prosecutions Alison Saunders feels the need to write to a national newspaper to apologise for a prosecution failure in an individual case, something significant must have gone wrong.  The failure related to Crown Court disclosure of evidential material.

crown court disclosureOf course, it might be thought a great pity that she chose to write to the newspaper first, rather than the person wrongly accused of rape.

So, what were the things that the prosecution and police got wrong in the case of Liam Allan?

Mr Allan was charged with multiple accusations of rape and sexual assault.  This is the type of case that juries throughout the country grapple with on a daily basis.  It would no doubt be a challenge for jury members in any circumstances.

Jury trial for serious sexual offences

crown court disclosureFirst the jury would hear the complainant in alleging that she was a victim of serious sexual crime.  The jury would then hear the position of the young man in question who had always stated that that it was all consensual.

As most sexual encounters happen in private, as lawyers we will often face cases where the case involves the word of one person against another. Can there be smoke without fire?  Why would the allegation be made in the first place if untrue?

But what if the key to ‘solving’ the issue of whose account was correct was sitting in phone records that had already been obtained.  All that was required was that people simply do their job. That was the situation in the case of Liam Allan.

After the alleged crime, the complainant sent a series of text messages to Mr Allan asking for more sex. The messages disclosed, in fact,  that she wanted violent sex.  She spoke about wanting to be raped. Even worse here, in a further round of texts, she made clear to a friend that no crime had been committed by Mr Allan.

This is the type of evidence which should hole a case below the water line, leading to the end of a prosecution.  In this case it did, but only after two years. Mr Allan understandably described this period as a ‘living hell’.

Failure to disclose text messages

crown court disclosureThe sadness, in this case, is that it could have been avoided.  This is because Mr Allan raised the issue of text messages in his police interview.  His account was ignored.  Instead, the officer in the case went on to also ignore clear guidelines on Crown Court disclosure.  Although the police had the text messages he did not bring them to the attention of the prosecuting barrister.

It was only a very late intervention, three days into the trial, that uncovered what the police had known all along, that Mr Allan was innocent. So, in the end, all’s well that ends well.  Commentators might argue that the system works.  For Mr Allan, it will be a long time indeed before the scars of that period heal.

While we would wish to provide you with the assurance that Mr Allan’s case is a ‘one-off’, we cannot. The issue of disclosure has been a fundamental problem in the area of criminal justice for decades.  This point has been illustrated by dozens of high profile miscarriages of justice.

It would appear likely that these cases must only be the tip of the iceberg.  Every single day the liberty of people standing trial is put at risk due to failures within the disclosure process.

Ensure you receive proper Crown Court disclosure of evidence

crown court disclosureBecause we are acutely aware of these problems and the risks to your case of a failure of Crown Court disclosure, all of our staff work relentlessly to ensure that all relevant evidence is revealed by the police and the prosecution.

From first police disclosure, right through to trial applications, we do not rest until satisfied that cases of our clients are prepared to the very highest of standards.

Instruct an expert crown court litigator

We provide nationwide advice and representation from our six offices across the East Midlands.  Please contact your most convenient office to make an appointment to discuss your case.

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VHS Fletchers offices across East Midlands

Alternatively you can use the contact form below.


Peer Review Confirms Our Client Focus

A Peer Review is a requirement of our contract with the Legal Aid Agency.  A random selection of files are made.  A reviewer will examine how we have dealt with client matters across all of our offices.  vhs fletchers peer reviewThis process is purely on the basis of the information recorded by our lawyers on the files supplied.

Our clients will know that we have worked very hard to ensure consistency of approach whether you see a solicitor at Nottingham, Derby, Chesterfield, Mansfield or Ilkeston.  We are pleased to be able to report that the reviewer agreed that we have been successful.

Following the random sampling, a number of positive aspects of our service were identified by the independent reviewer.

“Good Outcomes for Clients”

The adjudicator found evidence that we are “securing good outcomes for clients in all categories of work” – at the police station, Magistrates’ and Crown Courts.  These were evidenced by clients being refused charge, having the benefit of submissions of no case to answer or receiving sentences that were a significant departure from the published guidelines.

“Timely and Realistic Advice”

The reviewer noted that as a firm we ensured that our clients are “given timely and realistic advice about the strength of the evidence against them”.  We showed that this advice allowed clients to secure the maximum available credit for early guilty pleas.  Indications of culpability for lesser charges were given early, again maintaining credit when the Crown finally accepted the account given by our client.


“Pro-active steps were taken” to seek full instructions early in cases to allow the early drafting of, for example, a basis of plea, that was agreed with the prosecution prior to the first Crown Court hearing.  This allowed the client to be sentenced in a manner favourable to him.

“Readily Understandable Advice”

Our “clients were given clear and readily understandable advice about the strengths and weaknesses of the prosecution and defence cases and their prospects at trial”.  Our clients “were able to make fully informed decisions about their case”, with the advice given in plain English and clear, readily understandable terms.

“Actively Pursued Disclosure”

These strengths were combined with our “pro-active approach to the preparation and management of cases”.  It was observed that we “actively pursued outstanding disclosure issues” on behalf of clients, whether cases were at the Magistrates’ or Crown Court.  The strengths or weaknesses of the prosecution or defence cases were kept under constant review.

“Client Focussed Approach”

Our approach to managing client appointments, the provision of advice in person and in writing and our regular updates on cased “increased the prospects of our clients engaging in the preparation of their cases and provided further evidence of our client focussed approach”.

Contact Us

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Our Offices

VHS Fletchers have offices across the East Midlands.  We offer representation in criminal cases from the police station through to the Court of Appeal.  Independent reviews of the quality of our advice such as these can give you confidence in instructing this firm to represent you.

Please find you nearest office here, or email us here.  We look forward to hearing from you.