Over three quarters of police officers (77%) say they have seen evidence lost or destroyed, according to a report by Inside Justice. According to a report in the Daily Telegraph, two-thirds had seen ‘evidence stored incorrectly, often directly impacting the outcome of their investigations’.
The Telegraph reported: ‘Officers across cases such as murder and sexual offences told researchers that forces did not understand the consequences of mistreating evidence, adding: “if people found out how bad it is, and what we did.”’
It was also reported that ‘almost three quarters’ of criminal justice practitioners including lawyers said that they had worked on cases ‘where evidence had been lost, contaminated or even destroyed’. ‘A third said that they were unable to launch an appeal against someone’s conviction because of missing evidence,’ the article continued.
The Justice Gap has reported on the impact of the Nunn case and concerns that it is now ‘nearly impossible’ for the victims of wrongful conviction to access material held by the police that might assist their appeal (see here).
In murder, evidence should be kept for 30 years before it is reviewed. The Telegraph reported that only eight police forces cited the correct NPCC guidance for storing evidence. A senior police officer working in homicide, child abuse and counter-terrorism, told the paper: ‘You literally had to squeeze exhibits into places with other evidence-that’s cross-contamination… There’s holes everywhere.’
Meanwhile in a significant ‘open justice’ development, the Appeal judges in last week’s successful Shrewsbury 24 appeal issued a warning about the document retention. scheme. Both issues (the document retention regime and post conviction disclosure) were raised in the 2017 Open Justice Charter published in Proof magazine.
In the Shrewsbury 24 case, the Court of Appeal noted that the trial took place nearly 50 years ago ‘in the pre-digital era’ when the court records (including transcripts). As explained in Guilty Until Proven Innocent (Biteback, 2018), every hearing in the Crown Court must be recorded in full, but audio tape recordings of those proceedings are destroyed after five years.
This used to be justified on the basis of good housekeeping and conserving space occupied by tapes. Since 2011, proceedings have been recorded digitally. Those files are deleted after seven years under Ministry of Justice guidelines including the judge’s summing up which is widely considered essential for any chance of an appeal.
The destruction regime is seemingly at odds with the NPCC’s 30-year evidence retention. A Ministry of Justice spokesman told the Justice Gap in 2017 that the ‘practices, retention policies and records management procedures’ of other organisations were ‘not a factor taken into consideration’ when deciding upon retention periods, nor are they considered when deciding wheth- er records merit permanent preservation. ‘And neither the Public Records Act 1958, nor the Data Protection Act 1998, nor any other piece of legislation requires that we do so,’ the spokesman added.
According to the Court of Appeal, the Shrewsbury case provides ‘the clearest example as to why injustice might result when a routine date is set for the deletion and destruction of the papers that founded criminal proceedings (the statements, exhibits, transcripts, grounds of appeal etc.), particularly if they resulted in a conviction’.
The judgment continues: ‘At the point when the record is extinguished by way of destruction of the paper file or digital deletion, there is no way of predicting whether something may later emerge that casts material doubt over the result of the case.’
‘Given most, if not all, of the materials in criminal cases are now presented in digital format, with the ability to store them in a compressed format, we suggest that there should be consideration as to whether the present regimen for retaining and deleting digital files is appropriate, given that the absence of relevant court records can make the task of this court markedly difficult when assessing, which is not an uncommon event, whether an historical conviction is safe.’