Liam allan case and problem with disclosure

This is taken from a practising barristers blog who records his findings what the actual disclosure problems were with his case.




"In criminal cases, the State has the Police, an agency for the discovery of evidence, superior to anything which even the wealthiest defendant could employ" - Lord Devlin (1976)




Liam Allan, a criminology student at Greenwich University, was charged with six counts of rape and six of sexual assault. During the trial, the contents came to light of mobile telephone messages sent by the complainant including messages asking Mr Allan for sex. This material had been held electronically by the Police. The outcome was that prosecuting counsel (Mr Jerry Hayes) offered no evidence against Mr Allan and the case against him ended.




Mr Allan had spent almost 2 years on bail - in itself a serious concern - and, if convicted, a lengthy term of imprisonment was inevitable given that the maximum sentence for rape is life imprisonment and, for sexual assault, is 10 years. A serious miscarriage of justice was averted at the 11th hour with the trial judge asking for an inquiry to determine why this material was not disclosed sooner.




Disclosure has been the subject of three posts earlier this year - 19th July, 6th August, 18th August and 30th August. Failure to disclose material crucial to the defence is a major concern for criminal lawyers. There is no room here for complacency and the matter must be addressed thoroughly.




The duty to investigate all reasonable lines of inquiry is in section 23 of the Criminal Procedure and Investigations Act 1996. Section 23 begins: "The Secretary of State shall prepare a code of practice containing provisions designed to secure - (a) that where a criminal investigation is conducted all reasonable steps are taken for the purposes of the investigation and, in particular, all reasonable lines of inquiry are pursued; ...." The Code of Practice paragraph 3.5 states that "the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect."




There can be no doubt that it was a reasonable line of inquiry to examine the messages sent by the complainant.




The INITIAL duty on the prosecution to disclose is set out in section 3 of the CPIA which requires disclosure of any prosecution material .. "which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused .."




Where (as here) the trial is in the Crown Court, once there has been initial disclosure a defence statement is required under section 5. The required contents of this are set out in section 6A and include the nature of the accused’s defence, including any particular defences on which he intends to rely. For example, Mr Allan claimed all along that the sex was consensual.




Under section 7A there is an on-going duty on the prosecutor to keep under review the question whether at any given time (and, in particular, following the giving of a defence statement) there is prosecution material which - (a) might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, and (b) has not been disclosed to the accused."




There can be no doubt that the messages sent by the complainant ought to have been disclosed, at the very latest, when the defence had filed a defence statement.




It is reported that the Metropolitan Police and the CPS are to review the case but, in the House of Lords, the Minister ruled out a judge led inquiry into disclosure - Hansard 18th December.