If officers are capable of racism, sexual harassment, even rape and murder, would many turn a hair at surreptitiously withholding a document or destroying an exhibit if it means securing a sought-after conviction?
In our experience, the answer is no. At APPEAL we uncover police hiding evidence to improve their chances of getting a conviction in the suspected wrongful conviction cases we work on and can say with certainty that it leads to miscarriages of justice and innocent people going to prison.
So we were not surprised to see the findings of the recent Casey Review into the Met police, a rigorous examination of the UK’s largest police force, concluding that it is institutionally racist, misogynist, and homophobic. Sometimes it only takes one bad apple to show that, upon closer inspection, the whole fruit basket is rotten.
Our client Andy Malkinson, whose conviction rested solely on eyewitness testimony, can tell you a thing or two about police misconduct. During our investigation into his case, we obtained documents undermining the credibility of two key prosecution witnesses who claimed to have seen Andy near the crime scene. This crucial evidence had been withheld by police at his trial. This failing was allowed to occur due to our regressive disclosure rules, which leave it in the hands of the police and prosecution to decide what material is relevant and made available to the defence.
Additionally, when trying to initiate forensic analysis as part of his appeal, APPEAL’s investigators learned that Greater Manchester Police had unlawfully lost or destroyed crucial exhibits, including items of the victim’s clothing, rendering them unavailable for new DNA testing.
Thankfully, samples taken from the victim’s clothing along with various swabs had been retained separately by the Forensic Archive, which stores material previously held by the Forensic Science Service, which ceased operations in 2012 due to privatisation). As a result, new DNA analysis could take place. The results excluded Andy, identified an alternative suspect who has since been arrested, and led to Andy’s case being referred to the Court of Appeal.
Stories like these are by no means unique. An official report in 2017 estimated that violations of disclosure rules by police occur in 40.7% of cases and despite an attempt to improve the system, follow up reviews have found little improvement. It is often said to be one of the biggest causes of miscarriages of justice.
Race and disclosure
Anyone could find themselves subject to our flawed disclosure regime (indeed Andy Malkinson is white) but the Review’s finding of institutional racism leads us to ask – might black and ethnic minority defendants be more likely to be victims of disclosure violations as racist officers presume they are guilty and so hide evidence in order to convict them? Could they therefore be at even greater risk of wrongful conviction?
Broadly, the impact of racism extends to police attitudes and behaviour towards both victims of crime and suspects and defendants, leading to miscarriages of justice. The former was evidenced in the inquiry into the murder of Stephen Lawrence (whose family recently marked the 30-year anniversary of his death) and the latter was made clear by the wrongful conviction of the Oval 4, who were framed by a racist police officer. The Casey Review highlights that little has changed with respect to racism in policing since then.
Given the pervasiveness of racist attitudes within the Met’s internal culture and systems, and the disproportionate use of powers in the pursuit of a black or ethnic minority suspect, it is not a big jump to conclude that the unlawful application of disclosure rules may be influenced by racism, whether consciously or not.
The Casey Review clearly shows why such important decisions should not be left solely in the hands of a discriminatory and corrupt police force, and certainly not without sufficient scrutiny of those decisions.
That is why APPEAL calls for the current law on post-conviction disclosure to be overhauled. Firstly, appellants should be given a right of access to all non-sensitive material held by the police and prosecution in their case (not just what the police or prosecution decide to share). Secondly, refusals should be capable of challenge via a First-Tier Tribunal.
Repeated attempts to improve the disclosure system through ‘changing the culture’ have failed. It’s time to get serious and Casey’s review gives us every reason to do it now. As the London Police’s Service’s own motto tells us, facta non verba – actions speak louder than words.
Written by Nisha Waller and Merle Bannach from APPEAL