Jon Robins on why the failure of key evidence to be disclosed in criminal trials in recent years has long been an issue leading to miscarriages of justice.

A silent vigil took place outside the Royal Courts of Justice earlier this week. Campaigners gathered on the Strand with white surgical tape sealing their mouths in protest that the voices of the wrongly accused were being been ignored in the debate over the disclosure crisis in our criminal justice system.

The demonstration was organised by Liam Allan who has become a poster boy for a difficult but vital cause. He spent two nightmare years on bail charged with 12 counts of rape and sexual assault. Disaster was only narrowly avoided at ‘the 59th minute of the 11th hour’, as prosecuting counsel, Jerry Hayes put it.

The case collapsed three days into Allan’s trial when the barrister demanded that a wealth of digital material, including 40,000 text and WhatsApp messages from the complainant’s phone, be handed over to the defence. Allan’s legal team had sought disclosure before the trial – only to be told there was nothing to see.

Jerry Hayes later described himself as “old school”. He takes the apparently old-fashioned view that, if the defence wants to see evidence, then they should have access to it (unless it is, as he put it, “a fishing expedition”).

To treat problems of disclosure as a new-fangled “resources” issue, as cash-strapped police forces struggle to tackle the challenges of the digital age, is to ignore history.

The reason for this week’s protest was to highlight the Ministry of Justice’s refusal to include ‘Innovation of Justice’ – the group Allan and his colleague Annie Brodie-Akers have set up – in a roundtable discussion as to how best to respond to the non-disclosure crisis. Allan was joined by Eddie Gilfoyle (pictured together, above) as well as the family of Ben Geen – whose cases have both featured in Byline Times‘ ‘The Justice Trap‘ series – and many miscarriage of justice campaigners.

Shocking failures in disclosure were a feature of the Gilfoyle case (and indeed Danny Major, also covered in ‘The Justice Trap’). Eddie Gilfoyle was found guilty of murdering his eight-and-a half month pregnant wife in 1992 and spent 18 years in prison. He has always claimed that his wife, who was found hanging in the garage of their family home, had taken her own life.

Almost 20 years has passed since Eddie Gilfoyle was last at the Court of Appeal. “I came down here in 1995 with evidence that should have got me out of jail, they refused to hear it,” he told journalists at the vigil. “I came down here in 2000 and, again, they refused to hear it.”

The vigil is a reminder that problems of disclosure have always plagued the criminal justice system.

To treat them as a new-fangled “resources” issue, as cash-strapped police forces struggle to tackle the challenges of the digital age, is to ignore history. Concerns about rape victims being “forced to hand over mobile phones to police or risk their attacker walking free“, whilst understandable, also need to be understood in the context of that history as well.

Back in 2016, before Liam Allan hit the headlines, the miscarriages watchdog the Criminal Cases Review Commission identified disclosure as “the single most frequent cause” of a miscarriage of justice. It was ever thus.

Eminent scientists were also found to have suppressed evidence that showed that boot polish could test positive for nitro-glycerine.

“Our law does not tolerate a conviction to be secured by ambush,” said Lord Justice Glidewell as he overturned the conviction of Judith Ward in 1992. The case was supposed to introduce a new era of openness.

Judith Ward had served 17 years in prison after being wrongly convicted for the M62 coach bomb in 1972. The IRA bomb had been concealed in a luggage locker, blowing up a coach carrying off-duty soldiers and killing a dozen people. Ward was a highly vulnerable person who “spilled confessions and admissions like beans”, as her barrister Michael Mansfield QC put it. At the time the prosecution claimed she was planting the bomb, she was more than a hundred miles away at the Blue Boar pub in Chipping Norton having a drink with a dozen other people.

Ward’s serial confessions, implausible and contradictory, were backed up by overwhelming scientific evidence – at least, that was what the court was told. A Home Office forensic scientist Dr Frank Skuse found traces of nitro-glycerine on her hands and on her duffle-bag.

A wealth of evidence pointing to the woman’s innocence was buried. West Yorkshire Police sent just 225 of their 1,700 statements to the Director of Public Prosecutions; only about half of the 63 interviews with Ward were disclosed; and three independent reviews finding that something had gone badly wrong never surfaced. Eminent scientists were also found to have suppressed evidence that showed that boot polish could test positive for nitro-glycerine – as did playing cards in the Birmingham Six case.

In 2017, a joint report by the Crown Prosecution Service Inspectorate and Her Majesty’s Inspector of Constabulary found that the quality of handling of disclosure by the police was “poor” in more than four out of 10 of cases (42%). The findings were published just before the Liam Allan case collapsed and on the same day as a major report into the Cardiff Three saga.

Eddie Gilfoyle was found guilty of murdering his eight-and-a half month pregnant wife in 1992 and spent 18 years in prison. He has always claimed that his wife, who was found hanging in the garage of their family home, had taken her own life.

In 1992, the Court of Appeal quashed the convictions of Stephen Miller, Tony Paris and Yusef Abdullahi for the brutal murder of Lynette White in 1988. The three judges quashed the conviction because they were so appalled at the intimidation of the vulnerable Miller by the police when the tape of his interview was played in court. Some 10 years later, Jeffery Gafoor was arrested for Lynette White’s murder as a result of advances in DNA techniques. He later pleaded guilty.

It is a complex and disturbing story brilliantly told in the BBC‘s Shreds: Murder in the dock podcast – a timely reminder that the coerced ‘confessions’ of the type that feature in the Netflix dramatisation of the Central Park ‘jogger’ case, When They See Us, happen on this side of the Atlantic too.

Richard Horwell QC, a prominent criminal barrister, headed up an inquiry into the Cardiff case which he called “one of the worst miscarriages of justice in the history of our criminal justice system”. Attempts to bring the police to justice collapsed when the trial collapsed after prosecuting counsel “lost confidence” in the disclosure process. There were fears that key documents had been destroyed. Weeks after the Crown withdrew its case, the documents turned up at police headquarters. Horwell concluded that “human failings” caused the collapse of the trial and “not wickedness”.

“Disclosure problems have blighted our criminal justice system for too long,” the QC said. It’s a message that Liam Allan is well-placed to deliver to the Ministry of Justice – if only it is minded to listen.

Photo by Calum McCrae.