The latest episode of Panorama is entitled “Getting a fair trial?” This title-question is posed following the recent reports of criminal cases which have left people wrongly charged and, in some cases, wrongly convicted. Two issues for me stood out; firstly, police forces potentially being ill-equipped to deal with digital evidence and, secondly the balance of how to treat victims in the most sensitive of cases.
There is an ever-increasing volume of digital evidence that 20-30 years ago didn’t exist. Ask yourself, how long would it take an investigator to scour through your mobile phone with multiple years-worth of Whatsapp messages, emails or texts? And equally should it all be indiscriminately read anyway?
The word used regularly by the police in the programme is that they had felt a ‘proportionate’ investigation had taken place. However, what was evident is this use of the term ‘proportionate’ was by no means an objective fact, but the police’s subjective opinion (and one unlikely shared by those affected). How do the police define ‘proportionate’?
There can be contentious disclosure issues. Disclosure is a duty that requires parties to exchange documents (digital or otherwise) that not just supports their case, but equally could undermine it as well. The impression given is that, in many of these cases, the police have keenly fulfilled their duty for the former – but failed to fulfil their duty in the latter. This ‘pick and mix’ approach to e-disclosure can make any isolated message appear damning.
In respect of victims in the most sensitive of cases, I am an advocate of a “believe-first” approach. This means it should be assumed victims of rape, sexual assault etc are telling the truth, and should be treated accordingly. Nevertheless, the police shouldn’t use this approach to simultaneously abdicate responsibility from still running a professional investigation.
One take-away for me concerns the actual ethos of certain archetypes of officers. Once they have a suspect in mind, does their thinking narrow so much that “winning” [getting a conviction] trumps the pursuit of justice? I have dealt with many cases that, on the surface, aptly fit this theory.
Luke Cowles, Solicitor
Posted on Friday, 11th May 2018