Another case demonstrating the opportunities to challenge the integrity of evidential specimens. This time Eurofins who work on thousands of cases for the police each year have had weaknesses in their data security systems exposed.
https://www.telegraph.co.uk/technology/2019/07/05/uks-largest-police-forensics-lab-eurofins-paid-ransom-hackers/
Article below published by Law Society Gazette 20/07/18
Failures by police and prosecution authorities to disclose evidence which led to miscarriages of justice must be addressed through a shift in culture so that disclosure comes to be seen as a core justice duty, and not an administrative ‘add on’, MPs said today.
In a thorough and hard-hitting report, the Justice Select Committee raised concerns about the lack of leadership in tackling what it called ‘an issue of national importance’. Reiterating concerns raised by the Law Society during its inquiry into disclosure failures, the committee acknowledged that the failures are symptomatic of a criminal justice system under significant strain.
MPs cited the evidence from defence practitioners about the lack of remuneration for reviewing unused material and the impact of changes to the Litigators’ Graduated Fee Scheme (LGFS) in reducing payment for reviewing pages of prosecution evidence. The cuts to the LGFS are the subject of a judicial review brought by the Law Society heard at the High Court this week.
Law Society president Christina Blacklaws said: “Disclosure is fundamental to a fair trial – the very foundation of our system of criminal justice.
“Solicitors are at the heart of that system, defending, prosecuting, and upholding the rule of law. We are pleased the committee highlighted concerns about criminal legal aid, and the cuts in resources available to prosecutors as well as the police.
“We welcome the committee’s message to the government urging it to consider whether funding across the system is sufficient to ensure a good disclosure regime – one that keeps pace with modern technology.
“The committee is right to draw attention to the cost of delayed and collapsed trails resulting from disclosure errors which simply add to the strain on already tight resources.
“The extent of the problem with disclosure failings has been laid bare. Confidence in the justice system is at stake and we hope the committee’s call for clear leadership and for police and prosecution staff to be given the right resources, training and technology are heeded.”
The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.
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We have set out below a selection of cases successfully defended in 2018/19 in which all clients avoided a mandatory driving ban and most were awarded legal fees to be reimbursed.
One of our reviewing lawyers Laura Heywood persuaded the prosecution to drop the case before trial after prosecution failed to serve initial disclosure of unused material. Client was challenging the legality of the breath test procedure as the police failed to arrange an interpreter.
Laura Heywood again persuaded the prosecution to drop the case due to the same failure by the prosecution to serve initial disclosure of unused material. Client had a medical reason for failing to provide a breath specimen due to his injuries after a road traffic accident.
Jay Lemosa, in-house lawyer on the gold service persuaded the Court not to allow an adjournment to the prosecution after the police witness failed to attend Court due to having to attend his wife’s hospital appointment. Client was challenging the legality of the blood sample which was taken without good medical reasons.
Laura Heywood persuaded the prosecution to drop the case before trial after prosecution failed to serve CCTV. Client was challenging the reliability of the machine as insufficient alcohol was consumed to exceed the prescribed limit.
Jay Lemosa persuaded the prosecution at the first hearing to offer no evidence after it was noted that the two breath specimens had a higher than permitted 15% breath difference.
One of our in-house lawyers on the platinum service Richard Berman (with assistance of Sandra Cooper reviewing lawyer) persuaded the prosecution to offer no evidence after prosecution failed to serve unused material and CCTV. Client had been cuffed and strip searched without justification
One of our reviewing lawyers Sandra Cooper successfully persuaded prosecution in writing to discontinue after serving legal submissions and supporting caselaw. Medical reason was raised by client for not giving blood, but the issue was not referred to a doctor.
John Oliver, a lawyer on the firms’ silver service (with instructions from Sandra Cooper) successfully persuaded the Court to refuse an application by the prosecution to adjourn after the prosecution expert failed to attend Court. The client was challenging the level of cannabis in his blood which was 2.1 with the specified limit being 2.
Philip Lucas gold panel lawyer (with instructions from Sandra Cooper) successfully defended a charge after non-disclosure of unused material and CCTV. Client could not recall statutory warning and put prosecution to strict proof of driving.
David Houldcroft in house lawyer on the platinum service (with instructions from Sandra Cooper) invited prosecution to offer no evidence after they were refused an adjournment following non-disclosure of CCTV. Client maintained reasonable excuse to failing to provide on medical grounds.
Laura Heywood (reviewing lawyer) persuaded the prosecution to discontinue in writing after non-service of CCTV and custody record. Client disputed the breath test procedure and could not recall the officer completing the MG DD/A.
Sandra Cooper (reviewing lawyer) persuaded the prosecution to discontinue the case before trial after prosecution failed to serve initial disclosure of unused material and failed to comply with directions of the Court. Client was a Hungarian national who was not provided with an interpreter for the breath specimen procedure.
David Houldcroft, with instructions from Sandra Cooper (reviewing lawyer) successfully argued that there were special reasons not to impose a mandatory 12 month driving ban. Instead, the Court disqualified the client for just one month. The client had driven out of fear for his personal safety after being assaulted by males outside a nightclub.
David Houldcroft persuaded the prosecution to discontinue the case at the first hearing after the police failed to make the initial evidence available. The client was challenging the breath test procedure as he could not recall the MG DD/A being completed and was putting the prosecution to strict proof as to evidence of driving.
Jay Lemosa, with instructions from Sandra Cooper (reviewing lawyer) successfully opposed an application to adjourn the trial after the police office was unable to attend Court due to being on a training day. The client was challenging machine reliability and the operator had failed to sign the MG DD/A breath test booklet.
Sandra Cooper (reviewing lawyer) persuaded the prosecution to discontinue the case before trial. The client had been charged with failing to provide a breath specimen but the printout showed a mouth alcohol error message which demonstrated that there was an issue with the machine. Ian Hudson, in-house lawyer set the groundwork in place by clearly setting out all the issues at the first hearing.
Tom Longstaff, bronze level lawyer (with instructions from Sandra Cooper) successfully opposed an attempt by the prosecution to adjourn the case after the police officer failed to attend the trial due to illness. The client was putting the prosecution to strict proof as to evidence of driving.
In a case involving Sandra Cooper (reviewing lawyer), charges were discontinued before trial after written representations were made that it was not in the public interest to prosecute. The police used a taser gun without justification and had requested a blood sample when there were medical reasons for not doing so on a failing to provide charge.
Philip Lucas (with instructions from Laura Heywood) successfully defended a charge after the prosecution failed to serve legible copies of the performance history and maintenance records required by the defence expert to comment on machine reliability. No evidence offered after the prosecution unsuccessfully applied to adjourn the case.
James Brookes in house lawyer on the platinum service persuaded the prosecution to discontinue the case after the first hearing. The police had taken a breath sample unlawfully where there were medical reasons for moving to blood or urine. The client suffered from asthma and started to feel dizzy after attempting to blow into the breath test device and had to lie down.
Sandra Cooper (reviewing lawyer) made written representations that there been inadequate disclosure of CCTV. The copy provided had sound with no images. As a result of pursuing these disclosure failings the prosecution discontinued the case. The client was challenging the breath test procedure.
David Houldcroft (with instructions from reviewing lawyer Laura Heywood) invited the prosecution to adjourn the case due to non-service of the CCTV. After successfully opposing the adjournment he persuaded the prosecution to offer no evidence. The client was challenging the breath test procedure.
George Symes bronze level lawyer (with instructions from reviewing lawyer Sandra Cooper) persuaded the prosecution to discontinue the case at trial after late service of the CCTV and failing to provide unused material. The client was challenging the reliability of the breath test device.
Philip Lucas (with instructions from reviewing lawyer Sandra Cooper) successfully opposed an application by the prosecution to adjourn the trial after they failed to provide a consent form for a blood sample with a number of outstanding problems with continuity of the blood sample. The client disputed that he was fit to consent to a blood sample at the hospital.
Neil Whittle, bronze level lawyer (with instructions from reviewing lawyer Sandra Cooper) successfully persuaded the prosecution to offer no evidence after the main prosecution witness failed to attend the trial. The client denied driving the vehicle.
David Houldcroft (with instructions from reviewing lawyer Sandra Cooper) successfully defended the case after persuading the prosecution to offer no evidence once they failed to serve the interview tape. Initially the prosecution were going to substitute a new charge of drunk in charge on the date of trial until David threatened to seek wasted costs and argue abuse of process. The client was putting the prosecution to strict proof as to the identity of the driver.
Jay Lemosa (with instructions from reviewing lawyer Laura Heywood) successfully opposed an application by the prosecution to adjourn the trial after the prosecution failed to serve a witness statement from the officer in the case and the operator of the breath test machine failed to attend Court. As a result, the prosecution offered no evidence. The client was challenging the breath test procedure and could not recall the officer completing the MG DD/A breath test booklet.
David Houldcroft (with instructions from Laura Heywood) invited the prosecution to offer no evidence after they were refused an adjournment following non-disclosure of CCTV. The client was disputing the urine sample procedure.
Sherbanu Suliman (in house lawyer) with instructions from Sandra Cooper successfully opposed an adjournment request from the prosecution who were in breach of disclosure duties. The police had not responded to a request for CCTV and had failed to serve initial disclosure of unused material. No evidence was offered after the adjournment was refused. The issue in the case was the breath test procedure and machine reliability.
Sandra Cooper (reviewing lawyer) made written representations to the CPS that there had been not disclosure of unused material, CCTV, body worn footage and pocket note book. As a result of pursuing these disclosure failings the prosecution discontinued the case. The client was challenging the reliability of the breath test device.
Sandra Cooper (reviewing lawyer) requested CCTV and dash cam to assess whether there was sufficient evidence of the vehicle being driven. This material undermined the assertion by the officer that the car had been driven. The prosecution were persuaded to discontinue the case before the trial.
Sandra Cooper (reviewing lawyer) with assistance from Giles Pengelly (bronze level lawyer) successfully persuaded the prosecution to discontinue charges before the trial after serving a skeleton argument setting out a number of issues with the breath test procedure including the need to issue a statutory warning on a second occasion after an abortive breath test. The client was awarded costs.
James Brookes (in house lawyer) with instructions from Sandra Cooper (reviewing lawyer) successfully applied to exclude the CCTV and MG DD/A breath test booklet at trial as the breath test sample had been taken some 9 minutes after the statutory warning had been given. The client was challenging the breath test procedure.
Jay Lemosa (in house lawyer) with instructions from Sandra Cooper (reviewing lawyer) successfully appealed against a conviction for being drunk in charge. An expert report confirmed the Defendant would have been below the prescribed limit at the time he intended to drive.
Laura Heywood (reviewing lawyer) successfully persuaded the prosecution to discontinue charges before the trial after the police failed to comply with disclosure requests including unused material, CCTV, analytical pack, details of laboratory accreditation, the last 3 rounds of proficiency testing and HORT5 medical consent form. Client was challenging the continuity of evidence in respect of a blood sample.
Jay Lemosa (in house lawyer) with instructions from Sandra Cooper (reviewing lawyer) successfully applied to dismiss a drink driving charge on a blood sample after they failed to serve an SFR/1 report and various documentary evidence. The Defendant was testing continuity (the chain of custody of the blood sample).
Laura Heywood (reviewing lawyer) persuaded the prosecution to discontinue the charges before the trial after the prosecution failed to provide material to allow the defence to check continuity on a blood sample including the analytical pack, details of laboratory accreditation, and the last 3 rounds of proficiency testing.
Sandra Cooper (reviewing lawyer) persuaded the prosecution to discontinue the case before trial due to failure to comply with disclosure requests including unused material and CCTV which was necessary allow a defence expert to comment on whether the client’s medical condition caused him to stumble. The client was challenging the reliability of the evidential breath test device.
Jay Lemosa (with instructions from Sandra Cooper) successfully opposed an adjournment request from the prosecution after police officers had failed to attend Court. The client was challenging the reliability of the evidential breath test device.
Sandra Cooper (reviewing lawyer) persuaded the prosecution to discontinue the case against the client after it was noted that three samples were taken (by law only two samples can be taken) and there was more than the maximum 15% breath difference between the samples. The client was challenging the reliability of the breath test device.
Laura Heywood (reviewing lawyer) persuaded the prosecution to discontinue the charges after they failed to serve any evidence in the case including unused material. The client was pursuing a defence based on post driving alcohol consumption.
Sandra Cooper (reviewing lawyer) persuaded the prosecution to discontinue the case before trial after serving an expert report commenting on the reliability of the evidential breath test device. The breath specimens were unreliable due to a mouth alcohol error message that appeared to be incorrect as too much time had elapsed since the last drink for the client to have brought up alcohol from her stomach.
Sandra Cooper (reviewing lawyer) persuaded the prosecution to discontinue the case after persuading them there was no realistic prospect of a conviction. The client was testing the prosecution case on whether they could prove the identity of the driver. Also the police had given the Defendant an assurance there would be no further action before bringing charges.
Giles Pengelly (instructed by Sandra Cooper) successfully persuaded the Court to dismiss the case after the officer could not explain the delays in the breath test procedure and accepted that sections of the form had not been completed. The officer had also given inconsistent evidence about having seen the vehicle being driven.
Jeanine Harry (instructed by Sandra Cooper) persuaded the Magistrates to find special reasons against a driving ban due to the short distance driven. The client had driven no more than 7 yards and the Magistrates were satisfied the client had no intention of driving any further.
Eugene McLaughlin opposed an adjournment at the first hearing where the prosecution did not have a file available to proceed with the case. The Court agreed to dismiss the charge.
Ian Hudson (instructed by Laura Heywood) persuaded the prosecution to adjourn the case for them to consider discontinuing the case after the defence expert found a ‘check simulator gas’ error message on the printout. The police had failed to move to a blood sample as required by the breath specimen booklet.
Laura Heywood, reviewing lawyer persuaded the prosecution to discontinue the case after the police failed to serve CCTV and unused material. The client was challenging the breath test procedure.
James Brookes (instructed by Laura Heywood) successfully defended a fail to provide charge with an expert witness Dr Robinson. The client had a needle phobia. Instead of the police referring the client’s medical issues to a doctor the police charged the client with failing to provide.
The case was discontinued after the first hearing where Micaila Williams (platinum lawyer) with Sandra Cooper as the reviewing lawyer persuasively set out all the issues in the case. The issues in the case were whether valid consent was taken for a blood sample at the hospital. The client was not in a fit medical state and therefore the police should have asked for permission after the client had been discharged. There was also an issue on whether there was sufficient evidence to prove the identity of the driver.
Laura Heywood (instructed by Sandra Cooper) successfully defended the case by opposing an adjournment where the operator of the breath test device failed to attend the trial. The client had burped before the breath test procedure and the defence to be pursued was that the officer failed to eliminate contamination from mouth alcohol by waiting 20 minutes.
Sandra Cooper, reviewing lawyer persuaded the prosecution to discontinue the case after the police failed to serve CCTV and unused material. The client was challenging the breath test procedure and requiring the prosecution to prove the identity of the driver.
Sandra Cooper, reviewing lawyer persuaded the prosecution to discontinue before the trial. The client was charged with drink with excess alcohol. The issues in the case were fitness to consent and the chain of custody of the blood sample.
Laura Heywood, reviewing lawyer succeeded in persuading the prosecution to discontinue the case before trial. The issue was the reliability of the evidential breath test device.
The issue in the case was whether the police took more than the permitted two breath samples. There was also an issue about whether the police could prove the identity of the driver. The case was discontinued after the first hearing following representation by David Leathley, bronze level lawyer.
The issue in the case was machine reliability. Jay Lemosa, gold panel lawyer successfully persuaded the Magistrates to dismiss the charges after the prosecution failed to serve CCTV, training log and maintenance records after a disclosure order was obtained at an earlier hearing. Laura Heywood was the reviewing lawyer.
Chris Filer platinum level lawyer (instruct by Sandra Cooper) successfully opposed an application by the prosecution to adjourn the trial after the prosecution witness failed to attend the second listed trial having attended the first trial. The prosecution offered no evidence.
Laura Heywood (reviewing lawyer) successfully persuaded the prosecution to discontinue the case after the first hearing when client was represented by Richard Berman, platinum level lawyer. The issues in the case were machine reliability and denial as to driving the vehicle.
The case was discontinued after the first hearing after the client was represented at the first hearing by Mark Stocks, bronze level lawyer. The issues in the case were fitness to be detained and post driving alcohol. The reviewing lawyer was Laura Heywood.
The case was discontinued after the first hearing when the client was represented by Eugene McLaughlin (platinum level lawyer). The issues in the case were whether the interview could be used after the police failed to notify the client of the right to speak to a lawyer on the phone. It was also noted that error messages appeared to be displayed on the evidential breath test device which may have required the police to move to blood or urine. The reviewing lawyer was Laura Heywood.
Philip Lucas, gold panel lawyer (instructed by Laura Heywood reviewing lawyer) successfully persuaded the Court to disallow evidence which was served the day before trial so the police were unable to present evidence of the breath specimens. The issues in the case were machine reliability.
The issues in the case were proof of driving. CCTV had not been served and an interview at the roadside was challenged on the grounds there was no caution and no interview should have taken place until the client was taken to the police station. Richard Berman, platinum level lawyer instructed by Sandra Cooper, reviewing lawyer successfully persuaded the prosecution to discontinue the case at trial, skeleton arguments having been served by the reviewing lawyer in advance of trial placing pressure on the CPS to reconsider the case.
Sandra Cooper, reviewing lawyer persuaded the prosecution to discontinue the case before trial. The issues in the case were proof of driving, fitness to consent to blood sample and failure to provide the Defendant with a sample of blood.
The client was charged with failing to provide. Micaila Williams, platinum level lawyer successfully persuaded the Court to deal with the client on the basis there was no evidence of driving after reviewing CCTV evidence at trial. This meant client was eligible for a shorter discretionary ban instead of a mandatory ban. Instead of a starting point 18 to 24 month ban on a driver basis the client received a 6 month ban. The reviewing lawyer was Laura Heywood.
The client was charged with failing to provide. Dr Robinson provided an expert report confirming that the client had a reasonable excuse for failing to provide a breath sample due to his mental state. The case was discontinued before trial once the expert report had been sent to the prosecution. Laura Heywood was the reviewing lawyer.
Spend just 5 to 10 minutes with us answering a few questions about your case and give yourself the possibility of avoiding a criminal record and driving ban.
Free Telephone Helpline – we are open for calls any day until 9pm on 0800 044 3730
This BBC news article talks about inefficiencies in the police service and how this can result in charges being dismissed against the defendant.
Taken from BBC news website 18/07/17
‘Police and prosecutors are causing delays and undermining justice in criminal trials by failing to follow basic rules about disclosing evidence to the defence, a report has found.
Police must log evidence they did not use during an investigation and pass it to the defence if it could assist their case or undermine the prosecution’s.
Two watchdogs said widespread problems in England and Wales increased stress for witnesses, victims and defendants.
Police and the CPS promised action.
The College of Policing said it would review officers’ training on disclosure. The CPS promised it would outline steps it would take later this year.
Fair trials undermined
The report, “Making it Fair”, by HM Crown Prosecution Service Inspectorate (HMCPSi) and HM Inspectorate of Constabulary, said the flaws in disclosure risked leading to wrongful convictions and offenders walking free.
HMCPSi chief inspector Kevin McGinty said there was a “culture of defeated acceptance” that disclosure issues would be dealt with at the last moment, if at all.
“A failure to deal effectively with disclosure has a corrosive effect on the criminal justice system,” he said.
He said it undermined the principles of a fair trial, the foundation of the justice system.
“It adds delay, cost and increases the stress faced by witnesses, victims and defendants,” he said.
Mr McGinty said police “don’t know what they’re doing” regarding disclosure.
‘Chaotic’ court scenes
He accused the CPS of failing to “challenge” officers when there were gaps in their record-keeping – which the inspection report found to be “routinely poor”.
The report said the failings often led to “chaotic scenes” outside the courtroom as barristers tried to resolve disclosure failings at the “last-minute”, resulting in trials collapsing or being postponed.
In one example, a sexual assault case involving a child had to be delayed when it emerged a day before the trial that the child had written a letter which contradicted their evidence.
In another case, the jury in a burglary trial were discharged and a retrial ordered after the judge decided their view of it was distorted by the failure of police and prosecutors to disclose evidence to the defence.
The defence was unaware police had found chisel marks on a window of the burgled property and that the defendant was found with a chisel – but that the two didn’t match.
Steps to come
Responding to the findings, CPS director of legal services Gregor McGill said it understood the importance of complying with statutory obligations on the disclosure of unused material and said the CPS was committed to doing so.
“We will urgently work with our partners in policing, and other agencies, to address the findings in this report,” he said.
He said the CPS was already working with police to improve performance but there was more to be done and the next steps would be outlined in a report later this year’.
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