Memoirs of a Radical Lawyer by Michael Mansfield

Author:Michael Mansfield [Mansfield, Michael]
Language: eng
Format: epub
ISBN: 9781408803516
Publisher: Bloomsbury
Published: 2011-09-15T05:00:00+00:00

14

Lifting the Lid

Judith Ward and Disclosure

You would assume that all parties in a case automatically get to see all the relevant evidence. Well, you’d be wrong. Non-disclosure has been at the heart of a series of miscarriages of justice dating back to the 1970s. The police did not tell the defence that Gerry Conlon, one of the Guildford Four imprisoned for pub bombings in October 1974, had an alibi in London that night; or that Stefan Kiszko1 was physically unable to commit the sex crime for which he was convicted. It has been a constant struggle to get the laws on disclosure changed. For years it has been an uneven playing field, with police and prosecution only disclosing what they believe to be relevant to their case.

Transparency is one of the most fundamental tenets of natural justice, part of what is known as the ‘equality of arms’. The state has accrued all the powers and resources for investigating crime on our behalf, and it is only fair that the product of such researches, paid for by us as taxpayers, should be made available to all parties if a trial ensues. Individual defendants cannot possibly be expected to compete with such investigative facilities but, subject to Public Interest Immunity (PII), they should be entitled to examine the whole picture, which in one sense has been obtained on their behalf. It is this aspect of the French inquisitorial system, as I have described in my book Presumed Guilty,2 that theoretically provides for full disclosure of the dossier assembled by the investigating juge d’instruction, the Examining Magistrate. Without access of this kind, it is extremely difficult to ascertain what lines of enquiry have been overlooked or not completed; what potential exhibits have been mislaid or mislabelled; what information has been mishandled; and what scientific results have been misreported. On this last point a negative finding – often considered irrelevant by prosecuting authorities because it does not carry their case forward – may be as important as the positive finding on which they do rely.

Take fingerprints. A defendant could be charged with murder based on an accumulation of circumstantial evidence showing a motive, opportunity, presence near the scene shortly after the murder, and a fingerprint on a chair near the body and on the knife used for the killing. A number of queries come to mind. How many surfaces other than the chair were examined? Were any prints belonging to people without legitimate access discovered? Were there any unidentified prints? Was the fingerprint relating to the defendant examined for his or her DNA? Was the victim’s blood associated with the prints, and if so, is it possible to tell whether the print was on the surface before the blood or vice versa? The answers to any one of these queries could lend an entirely different perspective to the case. They may appear to be rather obvious and commonplace, but it is far from guaranteed that this sort of material will be readily forthcoming before or during a trial.

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