Examination of Witnesses (Questions 260-267)
MR CHRIS SALTRESE, MS LINZI MCDONALD, and MR NEIL O'MAY
TUESDAY 21 MAY 2002
260. You think it is too difficult?
(Mr O'May) Can we go away and think about it?
261. If anything occurs to you after, this is an area the Committee will be interested in. If you have any further suggestions or you hear anything about situations in other jurisdictions we would be interested to hear. We will check out Germany and we will be interested in that. Are there any other points any of you would like to make that you feel we have not covered today? We are especially interested in practical solutions?
(Mr Saltrese) I would like to see judges take a more robust line in these cases. In certain trials a judge will look at the evidence at the abuse of process stage, and I think if the judge thinks that evidence is wanting very often he will grant the defence application whereas other judges are most reluctant to take that decision and they take the view that this should go to the jury. This kind of lack of uniformity of approach extends to the disclosure issue. I was instructed in a case in Liverpool last year where the court had issued summons for local authority documents, the local authority had come along with the files, the files were handed over to the judge, the judge released certain documents to the defence for complainant X. Complainant X had been involved in a trial the previous year at Liverpool Crown Court against another defendant with another trial judge, same process. The trial judge in the previous year had released different documents for the defence. Our counsel asked for those same documents to be released to us, eventually they were. That bundle contained extremely important documents which were being withheld by the trial judge. Now I think an improvement would be if the defence team could consider all the third party material, extract what they feel is relevant, go back to the trial judge and say "This is what we think is relevant, what do you think?" I think that would be far better.
262. Amend the law on disclosure?
(Mr Saltrese) Yes.
263. Back to where it was before?
(Mr Saltrese) I think so, I think it would be relatively easy. I must say I disagree with the amendments which have been made by the CPIA. I think it is crazy to have a police officer
264. Can you spell it out please: CPIA?
(Mr Saltrese) Criminal Procedure and Investigation Act. I think it is crazy to have a police officer in charge of disclosure. In certain instances it is like putting a fox in charge of a chicken coop.
265. There a number of us who made that point when disclosure was going through.
(Mr O'May) One thing I raised in my written submission, and which was touched upon by Mr Singh, is that the defence is often in a very difficult position because the statement from the complainant is a page and a half and has very little detail. In those circumstances I think the judge should allow discretion in a preliminary hearing for that complainant to be called to give evidence. It is the kind of old style committal or the dismissal application which occurred previously in the late 1990s and can occur now under Section 51 of the Crime and Disorder Act. It is very important when the defence wish to investigate exactly what the complainant is saying, where it happened, what happened, who was there, where it is not on the face of the papers for the defence to be able to investigate that. I think, secondly, there are cases where if the prosecution continues with the view "let us put it in court in front of a jury and see what happens", where those cases can be knocked out early on because the unreliability of the witness can be demonstrated to a judge, it stops an awful lot of pain and suffering. If in the Reeves case we had had that ability, which had not been taken from us in the late 1990s, that case would never have got as far as it did and it would have cost an awful lot less money, on both the prosecution and defence side.
266. Can I just make a point to Mr Saltrese about the judges being more concerned and the rest. One of the witnesses who gave evidence to us earlier, who you no doubt heard, in his case acquittal was on the basis of the judge directing the jury to acquit him.
(Mr Saltrese) Yes. Certainly there are instances where a judge has to make that direction because the evidence simply does not come up to proof.
267. Ms McDonald, Mr O'May, Mr Saltrese, thank you very much for coming. This session is closed.
(Mr O'May) Thank you very much.