Can I appeal my conviction if there were failures in prosecution disclosure?

24th May 2018 Criminal Defence

We know that all current rape and serious sexual assault cases are to be urgently reviewed by the Crown Prosecution Service (CPS) after the collapse of a string of trials due to failures in the disclosure process. A number of cases could be dropped as a result of the review.

But - what about cases in which someone has already been convicted and there is a suspicion that relevant material was not disclosed before or during the trial?

In a separate article, I talk in detail about how the disclosure process developed, what the problems are and how the agencies involved in the criminal justice system are trying to improve the disclosure of evidence. I talk about the lack of funding, the explosion of digital evidence, the disclosure officer's obligations and what happens in practice. I then look at some practical steps agencies are taking and how I see systems developing to make the trial process more reliable.

Having regard to the reasons for the collapse of the recent trials, can we be confident that nobody has been wrongly convicted already? If defendants have been wrongly convicted, are the cases confined to rape and serious sexual assault or do the failures translate to other types of cases - fraud, money laundering, bribery, corruption and other paper-heavy prosecutions. After all, the CPS admit the problems are systematic.

When the head of the CPS - Alison Saunders - was asked the question about the possibility of wrongful convictions, she said 'I don't think so'. She referred to safeguards, but those safeguards clearly weren't sufficient in the callapsed cases. She has no intention of commissioning a wholesale review of old cases. To do so would be virtually impossible; but she did say that if convicted defendants think disclosure failures may have occured in their case, they have the option of exploring the issue.

This should not be regarded as an invitation to engineer a spurious attempt to challenge a perfectly safe conviction following trial. The Court of Appeal will not entertain minor failures where the material would not have made any difference to the outcome of the case. However, I am going to stick my neck out and say that there will be defendants in serious fraud cases and other volume evidence matters who would not have been convicted if particular material had been disclosed and deployed correctly during the trial.

Trouble is - how does one go about making this point in what will normally be an attempt to appeal a conviction well out of time? I am asked to review quite a few cases and I turn down most of them on the first day for one fundamental reason - The convicted person is simply making a general complaint that he or she was not satisfied with the decision. They don't truely understand what they are trying to acheive. It is a straightforward request for the lawyer to tell them what their complaint is. No professional lawyer will take a general complaint to the Court of Appeal.

Succesful appeals are those in which the grounds are readily visible and are of a type justifying the intervention of the Court of Appeal. How do you know if you fall into that category? A few questions will help, although many more will be particular to each case:-

  1. Do you have a specific disclosure failure in mind? If so, what impact do you think the failure to disclose the material had on the trial?
  2. If you simply suspect there might have been a failure, how specific can you be and what are you going to ask the Court of Appeal to consider?
  3. Did you answer questions during interview that would have revealled the need to disclose particular material? Did you give the investigators an idea of which lines of enquiry to explore?
  4. When you considered the prosecution case, did you instruct your lawyers that they should pursue the line of enquiry giving rise to the subsequent complaint?
  5. Did the defence case statement refer to matters requiring the prosection to disclose the material you now complain about?
  6. If the defence case statement was not detailed enough to prompt the disclosure you complain about, was there a separate specific request to disclose that material?
  7. If there was a specific request to disclose material and the prosecution refused, was the matter pursued at court as part of the trial or beforehand?
  8. If you were unaware of the relevant material at the time of the trial, how and when did you discover it?
  9. Could it have been made available during the trial if you had known of its existance at the time? In fact, did it exist at the time?
  10. Was the missing material identified during trial and if so, what did the judge say about it to the jury and/or the advocates?
  11. When you were convicted, did you ask your trial lawyers for advice on possible grounds of appeal, including the disclosure issue? Was advice provided in writing?
  12. If the advice from your trial lawyers was negative, why do you think you might obtain different advice from lawyers who did not deal with the trial?
  13. If you did not obtain advice from your trial lawyers at the time and you have now discovered potential disclosure problems, have you asked them for advice? If so, what did they say? If not, why not?
  14. Is your enquiry really a complaint that your defence lawyers did not defend you properly? There is a difference between this and an allegation that the prosecution failed to disclose material which, had it been available at trial, would have made an important difference.
  15. How much money are you prepared to commit to the exercise?

I do not engage in appeal cases funded by Legal Aid. Very few of the cases I deal with can be properly explored with the small amount of public funding made available by the Legal Aid Agency. Exploring grounds of appeal in a paper-heavy fraud cases will not be cheap. Lawyers will commonly ask for thousands to be paid up front to look at the case. I typically ask for £2,000 to undertake a visit or arrange a meeting, obtain answers to the type of questions I mention here and then provide preliminary advice on the next stage - if subsequent work might reasonably acheive a purpose.

Finally, there are very few yes or no answers but - if you cannot answer these basic questions with confidence, the answers to difficult case specific questions will probably not give you solid grounds to appeal by reference to failures in the disclosure process. If grounds exist, I will find them, but they need to be strong because the Court of Appeal will resist attempts to take advantage of the wholesale CPS review and open floodgates for general complaints that the trial process was not perfect.

If you feel you or yours fall into a category justifying further consideration, feel free to get in touch and I will do what I can to assist.


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Evan Wright is a Partner located in Manchester in our Business Crime & Regulation department

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