“18 months of hell”

It is reported today that yet another rape case has collapsed in London which has resulted in “18 months of hell” for his client said the lawyer representing the defendant Samson Makele. Mr Makele was due to go on trial in connection with an alleged offence of rape which the prosecution claimed took place after the Notting Hill Carnival in 2016. It was claimed that he raped the woman after returning by taxi to his flat in Hackney. It was also alleged that he had prevented her from leaving the flat.

The offence was reported to police by the woman the following day and Mr Makele was interviewed and denied the offence claiming that intercourse was consensual. During the ongoing investigation, his telephone was the subject of a digital forensic examination but it is understood that his lawyers were told by prosecutors that apart from a number of text messages nothing of relevance was on the handset.

But his defence team conducted their own examination of the telephone and recovered images showing the couple cuddling in bed. His lawyer Paris Theodorou is reported as saying that “Mr Makele doesn’t know whether failure to obtain the photographs by the police was an oversight or an act of sheer incompetence”.

What is the law on prosecution disclosure?

The current law on disclosure has been around since the implementation of the Criminal Procedure and Investigation Act 1996. Whilst there have been some changes to the legislation and guidance over the years, the main principles remain the same.

There are several stages to disclosure in a criminal case but they all follow the same general principle that, the prosecution has a duty to disclose to the defence any material which they have in their possession which either assists the defence case or is capable of undermining the case for the prosecution. Material is defined in the Codes of Practice as anything, including objects or information in an officer’s head

What problems do defence teams encounter?

As solicitors with a great deal of experience in criminal cases we often have similar issues, not only with issues relating to either late or incomplete disclosure, but also issues surrounding failures to properly investigate offences. The CPIA 1996 also provides a statutory requirement on investigators to conduct all reasonable lines of enquiry whether they point towards or away from a suspect. But with a huge focus recently on crime statistics, one wonders whether they could, either inadvertently or not, be affecting the quality of the investigation.

What are the consequences of non disclosure?

The Crown Prosecution Service website provides the following information for prosecutors and the public as to the consequences of not complying with the duties of disclosure, unfortunately whilst they refer to the Court of Appeal possibly finding that a conviction isn’t safe, they seem to gloss over the fundamental point that it may lead to a miscarriage of justice and somebody people being imprisoned for a crime they did not commit:

• the accused may raise a successful abuse of process argument at the trial
• the prosecutor may be unable to argue for an extension of the custody time limits
• the accused may be released from the duty to make defence disclosure
• costs may be awarded against the prosecution for any time wasted if prosecution disclosure is delayed
• the court may decide to exclude evidence because of a breach of the CPIA 1996 or Code of Practice, and the accused may be acquitted as a result
• the appellate courts may find that a conviction is unsafe on account of a breach of the CPIA 1996 or Code of Practice
• disciplinary proceedings may be instituted against the prosecutor or a police officer.

What you should do if you find yourself falsely accused of an offence?

Managing Partner Louise Straw wrote an article last year which gives many tips on what you should do if you find yourself falsely accused in what many lawyers are describing now as “complainant focussed” investigations. Where investigators are simply looking for evidence with assists the complainant rather than evidence which points to the truth. You can read the full article here.