Google “fair trial – Tommy Robinson” the first result you get is this:
A jury is supposed to be free of both sympathy and prejudice for the defendant. Obviously, the jury was not impartial to Tom Robinson due to his race, and they convicted him based on their racial prejudices. For these reasons, Tom Robinson did not receive a fair trial.”
The irony cannot be lost. The fictional Tom Robinson did not receive a fair trial as the process and culture he endured was prejudiced and racist; his name sake jeopardised a trial because the Court considered his actions undermined an order imposed to ensure a fair trial where race was also a feature.
More generally though the concept of ‘fair trial’ has become a hot topic recently in light of several cases where the Prosecutions “duty of disclosure” has been found wanting (see January’s article by Jonathan Wall http://ow.ly/foBK30i3tPM).
In July Alison Saunders produced the results of the Consultation on the Code for Crown Prosecutors –they propose that ‘disclosure’ guidelines be included for the first time as part of the Evidential Stage: when assessing whether there is sufficient evidence to charge, prosecutors must consider the potential impact of any other material. It is astonishing to think that the concept of disclosure would not be assessed at the investigation stage, after all it is the investigators who gather the evidence on which the CPS then advise in terms of charges. It is perhaps hardly surprising then that cases have been affected because investigators have been the arbiters of what is and what isn’t relevant.
We deal with cases regularly where issues of disclosure are fundamentally important and the potential impact these have on the prospects of clients receiving a fair trial arise almost daily.
We currently have clients who are ‘under investigation’ but not charged for many months, it was bad enough before the CPS failings on disclosure were recognised, but is now actually exacerbating the delays. Sadly this may be a necessary evil, yet it still requires robust intervention at this early stage to press Prosecutors and Investigators to act on all relevant lines of enquiry. Getting the investigation done may be time consuming but it is essential it is done properly before decisions are made which can be life changing for clients and their families.
We see the consequences of failures to disclose material often, it can increase costs, stress and of course increase the prospects of injustice. It is essential therefore that we lawyers who practice in these areas are alive to the concepts both before an after charge. In a case we are currently dealing with alleging sexual offences a trial had to be postponed because the CPS did not provide material which we had alerted them to before a charging decision was made; the court had to adjourn the trial to ensure the defence were given sufficient time to consider the material so to prevent unfairness to the client.
In another case involving sexual allegations the trial collapsed after material we obtained was deployed in cross examination of a witness and which contradicted her earlier accounts, again material which was disclosed late and should perhaps have been considered before a decision to charge was made.