Hidden evidence

Victims' families are increasingly concerned about the rules for disclosure of evidence, says Paul Donovan

A number of recent inquests into deaths in police custody have highlighted the failure of the police to disclose vital information to the families of the victims. And the police approach appears to be increasingly resistant, in any setting, to disclosing information.

Following the death in custody of Wayne Douglas in December 1995 the Metropolitan Police conducted an inquiry under the supervision of the Police Complaints Authority. The family's solicitor, Louise Christian, says she had asked the police for "access to the information and evidence" - including 74 statements and 45 other documents - prior to the inquest, but none was made available.

In the same week an inquest jury in Manchester returned a verdict of death by "misadventure to which neglect contributed" in the case of Leon Patterson, who had died in police custody in November 1992. After two abortive inquests the family were told that 13 new witnesses, including police officers, were to be called, and that there was new medical evidence.

The campaigning organisation Inquest, which supported the family and helped provide legal representation, said that the failure to disclose this new information meant "the family barrister is unable to prepare on an equal footing with the other parties".

Last year, the family of Brian Douglas, who died after being hit with police batons, discovered only at the inquest that the evidence had included some 75 statements and 32 other documents, including officers' notebooks and medical and forensic evidence.

Lawyers for the families of the bereaved highlight their helplessness when faced with failure to disclose relevant material. Louise Christian draws a vivid picture of the police legal team entering the Coroner's Court weighed down with bulging files, whereas, the lawyers for the victim's family have been struggling for months to obtain some information by finding civilian witnesses and trying to reconstruct the scene of the death.

The investigation into most deaths in custody is conducted by the police under the supervision of the PCA. It may take three to six months, during which the family of the victim often receives very little information as to how that person died. The first opportunity to hear a full account may be at the inquest.

The PCA report is sent to the chief officer of the police force concerned, and is their property. As Birnbergs solicitor Raju Bhatt says: "The investigation is conducted by the police, and the perception is that it is carried out for the police."

The PCA appears to recognise the problem that non-disclosure poses for families. The 1995/6 PCA annual report urges "that all interested parties at an inquest should be treated equally".

However, it is believed that the PCA has concentrated its attention on the Coroners Association, rather than the police. As Raju Bhatt emphasises, "the coroner can recommend disclosure, but it is not his to give." The report and other evidence belongs to the police.

Bhatt and Christian contrast their experience of the police attitude to disclosure at inquests, with that of the Home Office regarding prison deaths. "The Home Office chooses to exercise its discretion and allow prior disclosure of a limited amount to the family beforehand," says Bhatt.

When the families feel that they should be better informed, their suffering is frequently increased, and this can build a sense of suspicion about police motives. Deborah Coles, the co-director of Inquest, believes "the failure to disclose gives an impression that the police have something to hide." She contrasts the attitude of the police to disclosure in some cases of death in police custody, with the Marchioness river boat disaster, where the role of the police was not in question, and relatives of those who died received full disclosure.

The unwillingness of the police to disclose information generally can be gauged from looking beyond the Coroner's Court to the Crown Court. Non-disclosure of crucial information has been a common theme in some recent cases of miscarriage of justice.

From the Charles Burke testimony that provided an alibi for Gerry Conlon of the Guildford Four, through to the evidence that remained undisclosed for 18 years proving the innocence of Judith Ward, the prosecuting side has a sorry record. In the Ward case, crucial interviews remained undisclosed until the first morning of the Court of Appeal hearing in May 1992. The subsequent ruling in that case created an absolute rule of disclosure on the prosecution regarding all material evidence. Delivering judgment, Lord Justice Glidewell said: "Our law does not permit a conviction to be secured by ambush."

Almost from the moment of his judgement, the police seem to have begun campaigning for a reversal of the new ruling. The solicitor Gareth Pierce says the Royal Commission on Criminal Justice, set up after the release of the Birmingham Six, was "lobbied non-stop by the police" for the two years that it sat. The imposition of restrictions on the disclosure rule was among the changes sought.

The police also conducted a media campaign emphasising that the disclosure rules were allowing the guilty to walk free. Sir Paul Condon said: "Major criminals and their advisers are exploiting the disclosure rules in a way that just cannot be in the public interest. Over 100 cases have had to be dropped through disclosure rules." The politicians seemed to be only too willing to bow to Sir Paul's demands.

The Criminal Procedure Bill, introduced into Parliament last year, put disclosure in criminal cases on a statutory footing and effectively reversed the obligation created under the Ward case. The Bill shifts the burden of proof further against the accused, by insisting on advanced defence disclosure and placing restrictions on the need for prosecutions to disclose "sensitive" material.

The decision as to the sensitivity of the material now lies with the police, not the Crown Prosecution Service. The police will now prepare two schedules, one of material for disclosure to the defence and the second covering material too sensitive to disclose.

Commenting on the new law, a barrister, Nick Brown, said: "It is deeply ironic that when the common thread of virtually every miscarriage of justice case since the Guildford Four has involved non-disclosure, the Government should respond by limiting the prosecution's obligation to disclose"n