Fixing a Hole? Potential Solutions to the Problem of Disclosure

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A new article by Dr Tom Smith and Dr Ed Johnston, both of UWE Law School, has been published in the The Justice Gap.

In the wake of the collapsed cases of Liam Allan and others in late 2017, the House of Commons’ Justice Select Committee has launched an inquiry into the ‘extensive issues’ with criminal disclosure. They are currently inviting written evidence on this issue. One of the central questions the Committee is asking is as follows: Are the current policies, rules and procedures satisfactory to enable appropriate disclosure of evidence and support the defendant’s right to a fair trial?

In our view, they are not. Tom Smith and Ed Johnston look at potential solutions to the disclosure scandal.

The full article is found here.

Changing Culture: The Problem of Adversarialism at the Heart of Police Disclosure

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Dr Tom Smith writes on the National Disclosure Improvement Plan

In the wake of the cases of Liam Allan, Isaac Itiary, Samson Makele, and Oliver Mears, the National Police Chiefs Council (NPCC) has issued a National Disclosure Improvement Plan. Whilst the document states that this plan has been in gestation for six months, the timing and tone suggest a hurried response to the scandal that has engulfed the police. The serious questions raised by lawyers, politicians, the media, and the police themselves suggest a new approach is needed to the disclosure of evidence in the pre-trial stages of the criminal process. The document appears to be the current embodiment of that desire to “change culture”. However, the plan shows a misunderstanding of the roots of the issue of inadequate disclosure, roots which reach deep below surface issues such as resources, the management of digital evidence, expertise, training, and leadership. At the bedrock is the fundamental fact that the police are an adversarial institution, deeply committed to the apprehension and prosecution of offenders.  This adversarialism inevitably influences the police approach to investigating evidence and sharing it with the defence – their opposition. Giving the police sole responsibility for conducting an impartial assessment of whether evidence is exculpatory is a design flaw. Without addressing this, it is hard to envisage real change following.

Police resources have fluctuated over the years; the types of evidence they have had to manage has changed over the decades; the volume and type of work dealt with has always been subject to variation. A consistent problem throughout has been the inability of some (not all) police officers to fairly manage investigations and the supply of relevant information to the suspect and their lawyer. The NPCC plan, sadly, does not appear to address the fundamental problem suggested above. It is generally vague and lacking in detail (which is perhaps not surprising considering the speed with which it has been issued). Several of the lines included in it are drawn from existing guidelines for disclosure (particularly the Code of Practice for the CPIA and the AG’s Guidelines). A clear message in the plan seems to be the problem of capacity to do the job, due to both a lack resources and time. This is likely, on a large scale, to be a factor, especially when dealing with large amounts of evidence. But if one considers the cases of Allan and Itiary, both suspects directed the police to evidence that was exculpatory. It seems more likely that the problem was belief in the suspects’ guilt rather than a lack of resources to investigate. This is arguably a problem of adversarialism; or perhaps more specifically, a problem resulting from the fact that the current disclosure scheme does not recognise the adversarial role of the police and the consequent risks.

The document talks about partnership, and rightly highlights the need for a close working relationship with the CPS (a problem evident from Allan’s case). The document implies that the defence community also needs to be engaged, although couches it in terms of the need for them to “take action”. This appears to mis-state the problem – as written, it suggests that the problem  is one of intransigence on the part of suspects and defendants.

Perhaps this was not the intended meaning; but it would seem more appropriate to suggest that it is the police that need to take action to engage more effectively, with not only the defence community but individual suspects and their lawyers in all cases, for all types of offences. Indeed, the plan focuses on rape and sexual assault cases; this is too narrow, highlighted by the recent collapse of a human trafficking case due to non-disclosure (which featured the remand of one defendant, who gave birth whilst in custody). Beyond this, the plan largely ignores the issue of engagement and partnership with the defence community. This seems a missed opportunity. Considering the modern drive for co-operation and openness encouraged by the Criminal Procedure Rules, the Criminal Procedures and Investigations Act (CPIA) 1996, and case-law, one would think that such a culture might lead the police to be more open too. Yet, cases such as those mentioned at the outset suggest that the police station (not generally open to external scrutiny) remains a bastion of secrecy and game-playing.

Since, in this environment, the suspect may now risk being punished for exercising their right to silence, it seems hypocritical for the police to be left largely free to be secretive and selective in what they choose to share. This is particularly the case prior to charge, with very few requirements to disclose, little scrutiny of this process, and few consequences for the police. Indeed, the review of the Allan case conducted by the Metropolitan Police and the CPS (released in late January 2018) makes no recommendations for action directed at those individuals responsible for the failings in that case. Despite many years worth of guidance aimed at both streamlining and encouraging disclosure (which are, arguably, contradictory objectives in any case), the problems in achieving it fairly are “systemic and deeprooted” (as both the NPCC plan and the DPP have stated). The fundamental flaw in the CPIA 1996 disclosure scheme – that primary responsibility lies with the police – was followed by two decades of clarification and amendment (for example, via the Criminal Procedure Rules and the Attorney General’s Guidelines), with apparently limited progress. The intentions of the NPCC in issuing this plan may be good, but ultimately even soft regulation has failed to change this culture. It’s hard to see how more self-regulation (which appears to primarily focus on monitoring and further standard-setting) will work. The most effective catalyst for change so far has been media attention and the public failure of cases.

If one accepts the argument that the fundamentally adversarial nature of the police and suspect relationship will continue to undermine a workable, police-managed disclosure scheme, this plan seems akin to a plaster on a leaking dam. So, how can they issue be tackled? The suggestion of culture change emphasised in the plan would need to go much further than well-intentioned rhetoric. Disclosure should be managed by an independent and objective figure; one might suggest a Custody Officer style figure, but this role has been subject to criticism over the years (exemplified by the studies of McKenzie and Dehaghani). It should be a figure distinctly separate from the investigation and the police – the equivalent of a Disclosure Officer without the inherent conflicts such a role has. This would move away from the entrenched adversarialism that risks tunnel-vision regarding the guilt of a suspect (despite explicit guidance to the contrary). Another alternative would be a presumption that the police will disclose all material, with exceptions (for example, on public immunity or sensitivity grounds) being clearly justified (as suggested by Professor Ed Cape in his letter to The Guardian (December 2017). This form of “total disclosure” could, however, potentially leave defendants and their lawyers (if they are represented) with a mountain of material to assess – with no more resources to do so. A different, but connected issue, is the transparency of the process. As such, a formal and recorded mechanism by which the suspect and their lawyer can request investigation by the police of relevant, exculpatory evidence would also be welcome. There should be a rebuttable presumption that the police will disclose when a request is made. When the police reject the need to investigate and/or disclose, they should justify this. All of this material should be available to all parties and be mediated by some external, non-adversarial figure. For example, if a defence request is rejected, there should availability of an appeal mechanism whereby a magistrate or Judge can review the decision. This would establish a transparent relationship between the police and the defence regarding disclosure. It is notable how little is known about the exact processes by which the police dealt with disclosure in the cases mentioned above – a more transparent process is needed. Alongside the NPCC plan, the DPP has announced that all current rape cases are to be urgently reviewed to ensure disclosure has been dealt with appropriately. Additionally, the Attorney-General is apparently conducting a general review, and the House of Commons Justice Committee will also investigate the issue. The NPCC plan and the DPP’s review are welcome but arguably inadequate; the solutions being offered will not fully address the problems discussed here, which appear to be widespread and deeply rooted. The latter two, if conducted thoroughly and in a manner that engages with various parties, have a better chance of truly driving a change in culture – one which is desperately needed.

Alcohol and Football Spectators: Time for a Choice?

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Matt Hall, Associate Lecturer at UWE Law School, recently published this article on the proposals of the Welsh Rugby Union to introduce ‘dry zones’ within Cardiff’s Principality Stadium following increased reports of anti-social behaviour during Welsh international rugby matches. The article also discusses alcohol legislation at football and the Licensing Act 2003.

image of three red feathers above the letter W R U for

Spectators of football have long been subject to
strict alcohol curtailment via s 2(1)(a) Sporting Events
(Control of Alcohol etc.) Act 1985. Yet, despite its repeal by the Licensing Act2003, no Commencement Order has been forthcoming. To tackle issues with alcohol related disorder at rugby, the Welsh Rugby Union have proposed their own response in a manner that, unlike s 2(1)(a), will not blanket ban alcohol from all. Even in its absence, an abundance of legislation exists to tackle alcohol related disorderly behaviour without the need for specific legislation.

Introduction
Alcohol, its consumption and effects have long been a concern to the legislature who in turn, have introduced numerous legislative measures. For example, The Defence of The Realm Act 1914 was enacted shortly after the outbreak of World War One. The government, believing alcohol consumption would negatively impact the war effort curtailed the times publicans could trade. The Licensing Act 1964 (LA 1964) introduced new permitted hours for venues, 11am until 1030pm with a break in between of two and a half hours.  24 years later, the Licensing Act 1988 (LA 1988) removed the ‘two and a half-hour rule’ and extended opening times until 11pm. Football has also been subject to legislative alcohol curtailment. Introduced following the deaths of 39 spectators preceding a European Cup Final in Heysel, Belgium to make stadiums “safer places for decent people” was The Sporting Events (Control of Alcohol etc.) Act 1985, with s 2(1)(a) forbidding the possession of alcohol in ‘direct view’ of the event.

The introduction of the Licensing Act 2003 (LA 2003) was advocated in the White Paper as a liberalising departure from the, to quote Jack Straw, ‘complex and anomaly riddled licensing systems’ of LA 1964 and LA 1988. Concern surrounded binge-drinking, where many indulged in as much alcohol as possible before the 11pm closures followed by a systematic mass exodus into city centres where disorderly behaviour was becoming common.

Yet, despite similar consequences of binge-drinking and congregation being prevalent at football, the liberalisation of the licensing laws changed nothing. The LA 2003 did repeal S 2(1)(a), but 15 years later, no Commencement Order giving effect to this has been forthcoming. Therefore, this article discusses the similar issues faced at football that the LA 2003 sought to address within the Night Time Environment (NTE) and outlines alternative options available to the authorities should spectators of football ever be permitted to consume alcohol within view of the event.

Unintended Consequences
The LA 2003 aimed to reduce drunkenness and disorderly behaviour within the NTE by allowing some establishments to operate under 24-hour licences. By spreading the ‘kicking-out’ of revellers gradually rather than systematically and allowing customers to consume alcohol in a more moderate manner, this would lessen mass congregation in city centres and the culture of binge-drinking before the regular 11pm closure times.

In the football context, there are similar connotations. The s 2(1)(a) restrictions mean many spectators who are aware that alcohol availability is hampered binge-drink prior to the game. When in the stadium, many spectators congregate in the concourse bars at half-time, out of ‘direct view’ of the playing area and within the boundaries of the law. In similar fashion to the NTE, many spectators find themselves decanting systematically to one area where jostling, spilled beer and outbreaks of fights are known to occur. Liberalising the availability of alcohol by allowing football spectators to consume alcohol within view of the playing area could be one way of lessening half-time congregations and pre-match binge-drinking. That said, whether the LA 2003 has had the desired effect of reducing binge-drinking and/or alcohol related disorderly behaviour within the NTE is still a matter for debate.

In 2017, The Licensing Act 2003: Post-Legislative Scrutiny outlined that since 2005, alcohol related disorder has “gradually decreased.” The 2013/14 Crime Survey of England and Wales records that in 2005, there were 2m violent incidents in which 1.3m (53%) victims believed the offender to be under the influence of alcohol. In 2013/14, 1.1m violent incidents had been recorded with 704,000 (53%) perpetrators perceived to be under the influence of alcohol. Also seeing a decrease in arrests, is football. The Home Office outlined that in season 2016-2017 there were 1,577 arrests (excluding friendlies and under-21 matches) amongst the 39.9m spectators who attended (0.004%). The low proportion of arrests clearly brings into question the requirement of such draconian legislation aimed solely at football spectators.

Changes in consumer behaviour have also seen a new challenging phenomenon emerge in that today, the lower prices in supermarkets and off-licences mean they account for 70% of alcohol sales. With this has what has come to be termed “pre-loading.” Like binge-drinking in that now, many enter the NTE highly intoxicated from alcohol consumed in private. This has similar undertones to the culture of many match going football spectators.

Therefore, if a Commencement Order were forthcoming, and s 2(1)(a) SE 1985 was removed from the statute books, whether this would reduce pre-match alcohol indulgence or concerns surrounding half-time congregation and disorderly behaviour is undetermined. Supermarkets and off-licences would still provide an alluring alternative given the higher price of refreshments in sports stadiums, something that rugby can attest to.

Blanket Bans
Rugby, which permits alcohol consumption within view of the event is not immune from alcohol related disorderly behaviour. “Pre-loading” and indeed half-time congregation to the bars is common despite it being legal to consume alcohol within view of the pitch. South Wales Police have often been critical of the behaviour of some spectators before, during and after international matches in Cardiff. So much so, that the Welsh Rugby Union (WRU) are considering implementing “dry zones” within Cardiff’s Principality Stadium to address issues of excessive language and anti-social behaviour that many spectators have reported.

The difference however, between football and the WRU’s proposal is that the criminal law will not enforce this. Clearly, football has a tainted history and the deaths of 39 Juventus supporters in Belgium provided the catalyst for the SE 1985 enactment. Nevertheless, critics have argued that the blanket nature in which the SE 1985 operates treats all football spectators to be problematic. Not all spectators who consume alcohol engage in disorderly behaviour. The majority are law-abiding citizens who will have their alcohol consumption curtailed for the actions of a small minority. The WRU may very well find this argument made to them should areas of the Principality Stadium become “dry zones.” Nevertheless, spectators retain the choice to consume alcohol, albeit in certain sections of the stadium, something spectators of football do not have.

The WRU proposal only encapsulates parts of one stadium as opposed to a blanket curtailing across the sport, meaning in regional matches alcohol would remain readily available. This would be an option to the English and Welsh Football Associations and their associate clubs, should s 2(1)(a) be removed. “Dry zones” for example, within family stands and enforced as part of terms and conditions of entrance could be a plausible option, thus, removing the need for the criminal law to enforce a blanket restriction and liberalising football from the SE 1985. If disorderly behaviour did occur, legislation is in place for the authorities to utilise.

Alternative Legislation
A 2001 report into disorder associated with cricket considered specific legislation mirroring that of football. It concluded that the existing public order legislation should be tested in the first instance. Should it ever be permitted for football spectators to consume alcohol within view of the pitch, this same legislation would be available to the police should alcohol related, or indeed non-alcohol related disorder occur.

The most obvious choice appears to be drunk and disorderly contrary to s 91 Criminal Justice Act 1967. Any person in a public place who is drunk and acting in a disorderly manner is liable to arrest. This includes premises that the public are permitted access, whether for payment or otherwise (s 91(4)). In essence, a football, rugby or cricket stadium. S 5 Public Order Act 1986 is also available to capture threatening words or disorderly behaviour that is likely to cause an individual to be harassed, alarmed or distressed whether alcohol related or not. Alternatively, it is an option not to allow drunk spectators into stadia via terms and conditions of entrance. This is common within the NTE where staff will often refuse entry to anyone they deem drunk. The justification for this is that s 141 LA 2003 forbids the selling of alcohol to anyone who is knowingly drunk. Thus, the door staff play the role of protecting the bar staff from drunk consumers. At sporting events, stewards are well placed to follow suit and refuse entry on this basis.

The issue here, however, is what amounts to “drunk”? The Post Legislative Scrutiny outlined concerns that s 141 was being “routinely flouted,” evidenced by the fact that since 2005 there have only been 92 prosecutions and 44 convictions. Evidence also pointed out that whilst it is obvious to determine that someone has had a drink, it is less obvious to determine the point at which someone becomes drunk. R v Tagg ([2001] EWCA Crim 1230) heard similar submissions, James Turner QC arguing that “drunk” was a vague concept, too vague to satisfy the requirements of precision that the ECHR requires. Rejecting this argument, Rose LJ confirmed the everyday meaning laid down by Goff LJ in Neale v RMJE ((1985) 80 Cr App R 20) satisfied precision requirements, that being; ‘someone who has taken intoxicating liquor to an extent which affects his steady self-control.’ Notwithstanding, to what extent self-control must be affected is not sufficiently determined.

Conclusion
Whether the LA 2003 has had the desired effect on NTE disorderly behaviour is still a matter for debate. For football spectators and despite the repeal of s 2(1)(a), it is certain that the liberalisation of alcohol legislation changed nothing. Rugby and cricket experience disorder amongst some if its spectators, both rely on existing legislation and the WRU is demonstrating ways in which to accommodate those who want to consume alcohol and those who do not. With this, spectators of rugby will have something football spectators do not: a choice.

In the absence of s2(1)(a), existing legislation is in place to ensure that football stadiums remain “safe places for decent people.” Much has improved with football; modern stadia; better stewarding; CCTV; and even the attitudes of many spectators themselves. The low proportion of arrests also demonstrate that football is changing for the better. The WRU proposal is sensible and could easily be adopted at football stadia where most spectators are law abiding. The time has clearly come to give football spectators a choice and allow them to consume alcohol as part of the match-day experience.

[1] Matt Hall, Associate Lecturer, UWE Bristol

UWE’s Centre for Applied Legal Research to be well represented at the SLSA Conference 2018

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The Annual Conference of the Socio-Legal Scholars Association is one of the high points of the legal academic calendar and this year UWE’s Centre for Applied Legal Research (CALR) will be out in force showcasing current research. Bristol University is hosting the conference this year from March 27 – 29.

Emma Whewell is presenting a paper in the mental health stream entitled “Pre-proceedings and capacity: the impact of professional language and other barriers on parents with learning disabilities”. Emma has undertaken research into pre-proceedings protocols in Family Law and this paper will showcase some of her research. Laura Walker has done research on resilience and mental health, but for the SLSA she is presenting a paper in the Law and Emotion stream entitled “The Role of Empathy in the Sentencing of Women in England and Wales”, one of several papers from the Centre for Legal Research that looks at criminal justice either directly or indirectly.

Ed Johnston will be presenting his paper entitled “The Defence Lawyer in the Modern Era and the Evolving Criminal Trial” reporting on his research in the criminal justice field. He is not the only UWE researcher presenting on criminal justice topics as Professor Phil Rumney is chairing two panels in the Sexual Offences stream and is presenting a paper with Duncan McPhee (Criminology) entitled “Exploring the Impact of Multiple Victim Vulnerabilities on Rape Investigations in England and Wales”. Tom Smith will be reporting on a pilot study undertaken at the Bristol Magistrates Courts looking at the lack of local newspaper reporting of the courts. Tom will be presenting with Marcus Keppel-Palmer and the partners from the Journalism Department, Sally Reardon and Phil Chamberlain. An early report was made to the Society of Editors and quoted by John Whittingdale MP.

Looking at criminal offences in the context of sports law is Matt Hall who is presenting a paper based around his PhD research into the offences around alcohol and drunkenness at football stadia. Matt will be arguing the case for liberalising the laws which apply only in the context of football and not other sports. Matt will also be co-presenting a second paper in the Sports law stream with Marcus Keppel-Palmer reporting on their content analysis of sports photographs in national newspapers in a paper entitled “The Connoted Message of Sports Photography in National Newspapers”. Marcus will have a busy conference as he is also presenting a paper in the Law and Music stream entitled “Law, Outlaw and Deviancy in Bro Country“.

The week before Easter also sees the Association of Law Teachers Conference, to be held at Keele University, and amongst UWE’s researchers presenting papers there are Kathy Brown, Rachel Wood and Thomas Webber.

The Social Costs of Offshore Finance

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Dr Mary Alice Young interview – The Paradise Papers

The Centre for Applied Legal Research’s Dr Mary Alice Young was interviewed this month by Luke Vargas, from the U.N Headquarters in New York. The subject was the Paradise Papers and the radio interview was recorded for “Wake”, a weekly foreign policy broadcast produced by Talk Media News and circulated to more than 300 radio stations in the US.

The full transcript can be found here: http://bit.ly/2EYRfAr