At a recent PPMI (Progressing Prisoners Maintaining Innocence) meeting we were delighted to hear from barrister Tom Wainwright outlining the rules concerning “Disclosure” in criminal cases and the open discussion that followed. Disclosure, however, is dependent upon the investigators following “…all reasonable lines of enquiry…” as was set out by the old Attorney General following the acquittal of Liam Allan a few years, and a few governments ago. Prior to the PPMI meeting I had questioned a solicitor acquaintance in respect of a case we were discussing whether “…all reasonable lines of enquiry…” had been followed. His response was that it depends on what one means by “reasonable”, and this is what I will try to discuss in this document. It is important to note that I do so from a layman’s point of view and not from that of a legally trained person, in the hope that those who are more knowledgeable will make constructive comments.
The first observation to make is it that seems reasonable that, given the notion of presumption of innocence – and I confess to being a presumption of innocence absolutist – any assertions made by the prosecution in a criminal case should be justified. This is especially the case when the assertion is made in front of a jury who are supposedly there to judge the facts of a case…not to merely accept that because the prosecution has valiantly struggled to establish a version of the “facts” which happens to suit their narrative, based on a logic that they cannot explain and for which they only have circumstantial “evidence”, that there must be truth in their version
This means, in my opinion, that judges should intervene when assertions are made, to ask the prosecution the justification for the assertions they are making so that the judge may assess whether all reasonable lines of enquiry have been pursued. Sadly, this questioning cannot be left to defence lawyers, because they seem incapable or unwilling in the UK, in my experience, of questioning the integrity, intelligence or inquisitiveness of their learned friends.
The second observation is that, when asked why a certain line of enquiry was not followed, it should not be acceptable for the prosecution to merely state that they did not feel it was necessary for their case. This implies that truth is not an objective for the prosecution and that their role is merely to convict. They should be able and compelled to state why they felt it was not necessary. I am thinking now of when, for example, it was not felt necessary to examine the contents of a computer or a mobile phone or even paper files at the home or workplace of an accused person or, indeed, accuser.
The third observation is that, when basing so-called evidence on a document in electronic or paper format it is surely reasonable that the prosecution should make every attempt to establish when, where and how the document was made and, above all, by whom or what system it was made. That must be a “reasonable line of enquiry” and should be done by those with forensic resources available rather than those of amateurs on the defence side. It is, for me, a given that, if those prosecuting cannot make available the resources necessary to make “…all reasonable lines of enquiry…”, then the prosecution will be unsafe.
A fourth observation, and one of the most important – if contentious – is surely that, if it can be shown that the prosecution did not follow “…all reasonable lines of enquiry…” regardless of what “evidence” was disclosed, used or unused, that, in itself, should be grounds for an appeal against conviction. One can only assume that if appeals were allowed in such case that the prosecution would take more care when simply making assertions in front of juries that all too easily influenced by our learned friends.
Page1 of 1 Danny Barrs 22/11/2024