14
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.
It was not until 1996, when Michael Chance, who had had responsibility for the prosecution of the Carl Bridgewater murder case (see Chapter 12), wrote to my solicitor Jim Nichol prior to the appeal, conscientiously expressing concerns about the possible non-disclosure of prints found on Carl’s bicycle which were not those of the convicted men, that the defence became aware of their existence. The paltry justification put forward by the Home Office at the time is typical of the thinking that has pervaded this area far too long: the prints were considered irrelevant because it was believed that the intruders wore gloves. Anyway, the bike could have been touched by anyone at any time. All of this is possible, but that’s not the point. Before this revelation, the Home Secretary Michael Howard had been minded to refuse an application to refer this case back to the Court of Appeal, which eventually exonerated the men. Overturning the smallest stone can reveal the biggest truth.
It is alarming to note that this sort of non-disclosure was still continuing, even after the major exposure of systemic failure revealed in the tragic conviction of Judith Ward.
The Judith Ward appeal was a watershed case demonstrating intellectual corruption across a broad spectrum of prosecution agencies well beyond the police themselves, and each agency had displayed selectivity in disclosure based on their prejudices, preconceptions and assumptions.
Judith was born in Stockport, Cheshire, in 1949. She had an unhappy childhood dominated by a violent, alcoholic father who eventually disappeared, leaving her mother to work long hours cleaning when she wasn’t beset by illness. Despite her best efforts, Judith’s mother was often not around to give her six kids support, which left Judith at a young age as sole carer for her younger siblings. As a result she missed a great deal of schooling and became a troubled young woman, tiny in stature and timid by nature. She did odd jobs and trained as a stable girl, then at seventeen suddenly left home for a job in Ireland on a farm in Dundalk, near the border with Northern Ireland.
This was 1968–9 – the ‘Swinging Sixties’ for some, but in reality a time of soul-searching and agitation. The Vietnam war engendered massive protests; militant French students provoked aggressive state intervention; there were civil-rights marches in Alabama; and nearer home in Ireland campaigns for civil rights by the Catholic minority in the North led to battles with loyalists, the British Army moving in and the Provisional IRA being formed. Judith wasn’t politically active at this time, but she was interested in Irish history. Things got tricky at the farm with an unexpected marriage proposal to this emotionally and sexually naive girl: frightened, she ran away and joined the British Army.
They trained Judith at Catterick in Yorkshire, as a ‘communications centre operator’, using phones and telex machines. Keen to experience new places, she applied to be posted to Cyprus, but got no further than Aldershot. She hated it there and once more, when faced with a difficult situation, went AWOL – this time to Dublin, where she ended up sharing a flat with a bunch of anarchists, socialists and Republicans. Afraid that the army might come after her, she adopted a false name, but that didn’t help. Picked up by the Royal Ulster Constabulary one day, she was sent back to England, where she was discharged from the army. In 1973 she ended up in London and met a guy in Kilburn who was active in Sinn Fein. This was the period of the IRA bombing campaigns when my car was exploded by the Price sisters, and Judith was one of those on the vigil outside the prison where they were on hunger strike. She worked in hotels, in Woolworths, in bars: any old job to keep a few pence in her pocket.
On 10 September 1973 she and her friend Elaine were coming out of the cinema when they heard that a bomb had been detonated in Euston station, and stupidly went to ‘look see’ out of curiosity. They were sitting in the pub on the station when they got talking to some men, one of whom was from Belfast, sharing a pint – and suddenly they were all surrounded by plain-clothes police and taken away for questioning.
The two girls’ alibis were checked out and, crucially, the time when the bomb exploded was when Judith and Elaine had been seen leaving the hotel where they were working. The police took swabs of their hands six times, and Judith discovered much later that she had four negatives and two faint traces of explosives, while Elaine had five traces and one negative. The Belfast man had four positives and two traces: he could have been handling explosives and contaminated Judith’s hand when he shook it and she shared his pint. They were all released.
Seeking new adventures, Judith ended up in Chipperfield’s Circus, in a huge arena called Belle Vue in Manchester. She enjoyed looking after the horses, but when the circus folded in the winter she upped sticks and this time went on the road, starting in London. By now Judith had lost what little stability and self-esteem she had had in her life and took to dossing around, sleeping rough on goods trains and taking off wherever the newest friend led her. In February 1974 one such fellow landed her in Cardiff and then disappeared, and so – fatefully – Judith decided to hitch to Liverpool, city of the Beatles.
On 4 February 1974 a bomb exploded in an army coach on the M62 motorway in Yorkshire, killing twelve people, and on 18 February Judith was charged with conspiracy to cause the explosion. Within a few weeks she had also had laid at her door the bombing in 1973 at Euston station and another at Latimer College in Buckinghamshire, and she pleaded not guilty to all the charges. Still only twenty-five, Judith was alone, without legal help and was put in isolation in the notoriously foul remand centre known as ‘Grisly Risley’ (some of the grimmer details of which can be found in Chapter 10).
By the time of her trial in October 1974 Judith was completely disoriented. She had been hospitalised for acute appendicitis; had made a ‘confession’ and withdrawn it; had been heavily sedated; had made up a marriage to a non-existent IRA man; and was generally in a terrible state, self-harming and contemplating suicide. The doctors’ reports of her ‘acute psychotic depression’ were never presented in court, but then neither was most of the evidence that could have saved her from conviction.
If you had to pick a time to be tried for a ‘terrorist’ offence, this wouldn’t be the ideal one, as the early to mid-1970s was a turbulent era. There was the Angry Brigade; the IRA, which had begun its mainland campaign; the Red Brigade in Italy; the Red Army Faction; the Baader-Meinhof Group in Germany and the PLO hijacking planes. No wonder the public was afraid of what was coming next. It was not unlike the climate of fear following 11 September 2001 or 7 July 2005.
So when the jury arrived every day at Wakefield Crown Court to try Judith Ward, who had been dubbed ‘the motorway bus bomber’, they saw a huge police presence surrounding the building, armed marksmen on the roof, visitor searches, security passes – all in all, an atmosphere of intense paranoia. There were bomb hoaxes and then came the real thing: the Guildford pub bombs went off during the case, and a few weeks later the Birmingham pub bombs were detonated (see Chapter 17). In this understandable heightened state of hysteria, it was hardly surprising that Judith got thirty years and twelve life sentences.
Fast forward the fifteen and a half years that Judith spent under perpetual surveillance in the cold, drab, top-security H wing for women in Durham Prison with nine other ‘Cat. A’ inmates and an array of drug dealers, murderers and others. At the beginning Judith was in a state of apathy: she trusted no one and sank into depression, becoming thin and ill. Later she started studying, learning skills such as computing, and found ways to accommodate her situation. But she had little support other than regular visits from her family – no friends and no outside campaign. She was the forgotten miscarriage of justice.
In 1988 Judith finally left Durham for Cookham Wood in Kent, and then in 1990 she was moved to Holloway, where conditions were more relaxed as she was no longer a Category-A prisoner. She even set up a desktop printing business, making cards and posters for inmates and units in the prison. When the Birmingham Six were released and Billy Power asked publicly, ‘Why is Judy Ward still in prison?’, she allowed herself almost for the first time to think that some day she might have a chance of freedom, and not long after their release Billy and the Six’s support group chairman, Paul May, went to visit Judith. She changed her solicitor and her cause was taken up by Gareth Peirce, whose determination, allied to the group’s new campaigning focus, meant that in September 1991 Judith’s case was referred to the Court of Appeal.
I was brought on board with Nick Blake as my junior, and we began the long sift through the original 1974 trial papers. On 27 April 1992 the appeal was due to start, but the prosecution suddenly asked for a three-month delay on the grounds that they ‘weren’t ready’. They’d only had eighteen years to prepare, and even the judges thought this was a bit strong: they gave the prosecution not three months, but one week.
Our defence team had discovered many new things about Judith’s case: for example that there had been three secret Home Officeinitiated independent reviews in 1985, 1987 and 1989. And once the digging began, it uncovered a veritable Pandora’s box. Without question it was the worst case of non-disclosure in my whole career, and one which exemplifies the magnitude of risk that is run when the pressure is on to convict those considered to be culpable. No one is immune, and everyone needs to be vigilant at all times.
Judith had spilled confessions and admissions like beans. They were all over the place, in every sense of the phrase – bizarre and random. Spread over different occasions between February and March 1974, she confessed to carrying explosives, to planting the bomb on the coach, to gun-running in Ireland and to planting the bomb at Euston. Some confessions she retracted, others she did not.
Added to this, it was claimed, she had made the bombs because she tested positive for Ng (nitroglycerine) under her fingernails; positive on swabs taken from her hands and duffle bag; and because positive traces of Ng were found in the caravan where she had stayed for a time. A persuasive picture when put in short form, but one which – unbeknown to the defence – was far from complete. It was the tip of an iceberg that had remained submerged for years.
The West Yorkshire Police had failed to hand over to the DPP 1,700 witness statements. Many of them were immaterial, but a number were entirely supportive of the thrust of the defence at trial: that Judith was a pathological liar and an attention-seeking fantasist. Between March 1972 and June 1974 there had been seven interviews by different police authorities which displayed a propensity to admit activity that could be shown to be fictitious. A member of the DPP’s staff as well as a barrister were criticised by the Court of Appeal for their role in the non-disclosure.
The scientific non-disclosure was monumental. It is rare indeed for the court to use strong (let alone strident) language, but their Lordships – Lord Justices Glidewell, Nolan and Steyn – quite legitimately took three senior scientists and two medical doctors to task. The doctors’ reports concerning Judith’s mental state and her attempts to commit suicide were not disclosed in full and crucial incidents were omitted. When I asked about them in the Court of Appeal the answers were regarded by the court as ‘astonishing’. The doctors either could not remember or were not especially concerned, because they quite often encountered this kind of thing in a large remand prison.
But this was nothing compared to the forensic science. Disclosure was ‘woefully deficient’. Three senior scientists from the Royal Armament Research and Development Establishment took the law into their own hands and concealed from the prosecution, the defence and the court matters that might have changed the course of the trial. The catalogue of ‘lamentable’ omissions I summarise as:
i. A failure to reveal actual test results for Ng, which had been misleadingly described as positive.
ii. A failure to reveal discrepant Rf values on TLC (thin-layer chromatography) tests for Ng – meaning that the range of variation in reading undermined their reliability.
iii. A failure to reveal that other substances (not Ng) might produce a similar reading on a TLC test where a suspect sample and a control are spotted onto a plate dipped into solution [it’s like watching ink rise up a sheet of blotting paper. The other, non Ng substance was boot polish!]. The three senior scientists, Mr Higgs, Mr Elliott and Mr Berryman, suppressed this during the trial.
iv. Misrepresentation and concealment of firing cell test results [experiments which showed how anyone might quite innocently become contaminated with explosives by touching debris or other secondary sources].
Most concerning of all during the oral evidence of the three scientists at the trial, they ‘knowingly placed a false and distorted scientific picture before the jury’.3
After almost nineteen terrible years Judith was free. She had paid a heavy penalty for the frailties of our legal system. Lord Justice Glidewell did not just identify what these were, but how they may have come about:
For lawyers, juror and judges, a forensic scientist conjures up the image of a man in a white coat working in a laboratory approaching his task with cold neutrality and dedicated only to the pursuit of scientific truth. It is a sombre thought that the reality is sometimes different. Forensic scientists may become partisan. That is what must have happened in this case.4
Quite apart from all this, there is another sombre and salutary thought. Confession evidence should not be accorded the status of the Holy Grail. In one case after another we have seen how it isn’t worth the paper it’s written on. In this case it was uncovered by the benefits, ultimately, of full disclosure; for Stephen Miller by DNA evidence, for Engin Raghip by forensic psychology, for Pat Molloy, the Birmingham Six and Winston Silcott by the searching eye of ESDA (electro-static deposition analysis). These examples are the reason I have argued for more than twenty years that there should be no confession-only convictions. Even pleas of guilty are suspect on this basis alone. What is fascinating is the sharp decline in confessions and confession-only cases in the face of regulative and protective measures that have been introduced. This clearly suggests that their frequent occurrence for so many years was both suspicious and artificial.
It was deeply disturbing therefore to discover a criminal justice system entirely dependent on confession evidence. During the spring of 2009 I was part of an independent delegation of British lawyers examining the operation of the Israeli military court system in the Occupied Territories of Palestine (OTP). In any one year up to 7,000 Palestinian defendants, mostly in custody, await trial on a variety of allegations ranging from stone throwing to bombing. Ironically these courts are a remnant of the British Mandate and even more ironically their reliance on confession evidence is a legacy of the historic British approach. The vast majority of defendants confess and well over 90 per cent of them plead guilty. No military court judge we met seemed to bat an eyelid at this unreal situation. In fact, confessions are described as the ‘queen of evidence’ requiring no more than ‘feather-light corroboration’, which predictably comes from yet more confessions provided by accomplices. No legitimate criminal justice system ever devised by mankind has achieved such a level of success.
The delegation report will have to assess what factors contribute to these results – obvious candidates are: the age and vulnerability of defendants; oppression exercised at the point of detention through to interview; extensive delay; the conditions of custody and increased sentences for contested cases.
I was thrilled when the Ward judgment brought about the prospect of real change. The police and prosecution were no longer to be the only ones to make decisions about the relevance of unused evidence; from now on, the defence was to be granted access to the complete pool of material.
Any police investigation generates a lot of information, such as witness statements, scientific reports, notes of conversations with potential witnesses, and so on. The police and the Crown Prosecution Service (CPS) then decide what will be used as prosecution evidence, and the rest becomes ‘unused material’. Of course this rejected data may not be of interest to the prosecution, but it could really help the accused. The prosecution was now required to provide the defence with all relevant evidence, unless the trial judge ruled that it could be held back on grounds of public interest. And for a few years following the Judith Ward case the defence could go and inspect any material they liked. Not any more . . .
After a while there was a backlash from police and prosecutors, who complained that they had to spend vast amounts of time and money supplying the defence with material, much of it ‘irrelevant’. So in 1997 the government introduced the Criminal Procedure and Investigations Act (CPIA), a dangerous piece of legislation which created two tiers of disclosure, putting the onus on the prosecution to decide what unused information should be disclosed.
It is left to a police disclosure officer (who is not legally trained) to list unused, non-sensitive material, and anything that might undermine the prosecution’s case is supposed to be disclosed to the defence. If it wants further disclosure, the defence must first supply a defence statement (a synopsis of the main points of the defence case in advance of the trial). The prosecuting authority is then supposed to supply any unused data that helps the defence case.
Of course this can lead to further miscarriages of justice. For example, the disclosure officer in one case was the very same police officer who was the subject of a formal complaint of assault by the accused. It came as no surprise when it emerged that a record of a telephone call to the police station from a member of the public at the scene, claiming that the police were assaulting people, was withheld.
The problems with the police acting as guardians of disclosure is that they are not trained to raise doubts about the guilt of those accused of crime, and they often display prejudice because they instinctively believe that the accused is guilty. The new rules depend entirely on the judgement, assiduousness and honesty of the police officer who assembles the information and on the impartiality of the CPS lawyer who assesses whether the material may assist the defence. It’s all too disturbingly frequent that evidence which contradicts the prosecution case fails to reach the defence – a case of back to the bad old days . . .
The outcome has been that major trials have collapsed, at huge expense. Unworthy defendants have had their cases dropped when a judge’s patience with a failure to disclose has finally run out, while those wrongly accused have come very close to going on trial without knowing about crucial evidence that would secure their acquittal. More disquietingly, how many innocent people are still going to prison because the disclosure regime is so inadequate?
The CPS needs to be told that it has to inspect the unused material itself, not just glance at the list produced by the police, even though it may need extra funds to do so. And defence lawyers should be allowed, once again, to go and look at whatever material the police have got.
The risks of non-disclosure continue to be a matter of concern well after the Ward judgment in 1992. In that same year thirty-twoyear-old Paula Gilfoyle was found hanged in the garage at the home she shared with her husband Eddie, in Upton on the Wirral. She was eight and a half months pregnant. On the day of her death Eddie was at work at a hospital between 11.30 a.m. and 4.30 p.m. and returned home to find a suicide note. When she wasn’t in the house, he went round to his relatives to try and find her. Paula’s body was found later in the evening by Eddie’s brother-in-law, Paul Caddick, an off-duty police sergeant.
At the start the whole affair was treated as a non-suspicious death. As a consequence, the crime scene and potential exhibits were not preserved as they should have been. Four days later Eddie was arrested for murder and convicted at Liverpool Crown Court in 1993. He protested his innocence from the beginning.
Factors that undoubtedly had a bearing on his conviction were the unlikelihood of a woman at that stage of pregnancy taking her own and her baby’s life; the difficulty of achieving it on her own, given her condition, her height and the beam involved; her non-suicidal state of mind, according to friends; and the existence of other suicide notes in her handwriting, which it was suggested had been obtained by Eddie for a first-aid course at work.
I represented Eddie at his first appeal in 1995 and at his second in 2000. The first centred on a sighting by a witness at a time when the prosecution claimed Paula had already been killed by Eddie before he went to work. The second focused on expert evidence concerning ligatures and the mechanics of hanging. Both appeals were dismissed.
A determined journalist, Dominic Kennedy, persisted with enquiries for many years. On 20 February 2009 The Times revealed that it had recovered, under the Freedom of Information Act (FOI), important police notes describing what witnesses attending the scene had said and done.5 According to Kennedy, the police had variously claimed that these notes didn’t exist or had been destroyed. What has to be ascertained now is whether they were in possession of information that was not disclosed to the defence at trial. A doctor who attended the scene had estimated contemporaneously that the time of death was approximately six hours prior to his examination of Paula’s body. If this estimate were to be correct, then Eddie was still at work. It is anticipated that the CCRC (Criminal Cases Review Commission) will be asked to follow this up.6
In December 1988 there was a series of burglaries and murders close to London’s orbital motorway, the M25. First came the bizarre murder of a homosexual in a field, and much depended on confused sightings of a red MG sports car, on the timings of various television programmes that witnesses used as reference points, and on evidence given by accomplices whom I described as ‘The Job Lot’, because one of them was called Jobbins. Relevant information about them was not disclosed. At the trial I represented Michael Davis, one of a number of defendants, and later both Davis and Raphael Rowe, a young Rastafarian, at appeal.
Randolph Johnson, Michael Davis and Raphael Rowe were jailed for life in 1990. The men’s first appeal in 1993 was unsuccessful, but later it emerged that the prosecution had failed to disclose that an associate of the three defendants told police that another man – not Randolph Johnson – had taken part in the crimes. This key prosecution witness also turned out to be a police informer who had received a £10,000 reward. The three men continued to fight to clear their names, and finally the European Court of Human Rights ruled unanimously that their trial had been unfair and the CCRC referred their case back to court. The M25 appellants were eventually successful and walked free on 17 July 2000. Raphael Rowe is now an occasional presenter and researcher for BBC Radio 4 and for Panorama on BBC television.
The case became the leading authority on a completely new procedure for disclosure, which I suggested to Lord Chief Justice Taylor, in relation to Public Interest Immunity (PII) hearings. The type of material which is covered by public interest can be quite wide-ranging, from official secrets at one end to the modus operandi of covert police surveillance at the other. This involves a crucial ethical question for defence counsel in particular.
For many years the English convention had been that counsel might be shown confidential information, on the understanding that the information would not be communicated to the client. I objected to this procedure because I felt that proper representation required my client knowing as much about his own case as I did, and he might well have important observations to make about the accuracy of the sensitive material. My objection entailed being excluded from the court while it considered whether the material should be disclosed to the defence for the purposes of the trial or appeal. I felt so strongly about my professional duty that I went to the Bar Council for their approval for the stand that I had taken, which I duly obtained. The Lord Chief Justice accepted that I was right in principle, but a procedure had to be devised in order to allow some representation and input from the defendant. At the hearing I suggested a league table for disclosure, dependent upon the degree of sensitivity involved, but unfortunately this has evolved into a completely different system, whereby special counsel is appointed for the defendant to deal with the PII hearing.
This has become a major feature of a singularly unhealthy part of our system in the Special Immigration Appeals Commission (SIAC). These are tribunals dealing with immigration issues, and if the immigrant is considered to be a ‘terrorist’, the hearings are in camera. While the individual may be represented generally by his own barrister, that barrister is not allowed to be present at the secret hearings, where only a special counsel can appear; and once he does so, that special counsel is in ‘purdah’ (Hindu for the screen that protects Indian women from public view) and can no longer speak – even to the client’s barrister – about what is happening in the hearings.
These issues surfaced in the notorious Belmarsh case in which the House of Lords denounced in robust terms the Labour government’s SIAC scheme, where detainees were locked up indefinitely without charge and without knowing the nature or detail of the allegations against them. I have always refused to participate in SIAC hearings save for one instance, and a number of special advocates publicly resigned after the Belmarsh case because of the injustice of the system. Yet another example of the scant regard successive Labour governments have had for the rule of law.
The dilemma posed by how to deal with the disclosure or non-disclosure of sensitive information, yet at the same time meet the requirements for a fair trial – especially for a defendant under Article Six of the European Convention on Human Rights – has become more acute over the last few years, and the current conundrum concerns intercept evidence or telephone tapping. This is so sensitive that you cannot even ask if it has happened, let alone what has been heard or recorded. It’s a bizarre anachronism, because almost all other forms of covert surveillance can be adduced. If the security services, Special Branch or the anti-terrorist squad have employed an eavesdropping device, which might be in a nearby house or vehicle, although the exact location may not be revealed, the conversations can be. If a hidden camera is used to take still or moving images, these too can be produced. So it’s difficult to see why a telephone conversation is any different. Provided the provenance, continuity, integrity and context of the recording can be established, it is clearly capable of providing the best evidence of what was in the minds of those planning a crime. Where there are complications about audibility and intelligibility, these are all matters that the trial judge would have to take into account in deciding whether it was sufficiently reliable to put before a jury. The security services have been exercised about this for years, but everyone in the real world is aware that telephones are tapped – and probably tapped more often than we imagine, given the expanding surveillance society within which we live. So it isn’t exactly a state secret that needs to be shrouded in mystery.
I represented two defendants in separate major terrorist conspiracy trials, both of which ended in 2007. One was alleged to be a central figure, the other on the fringes, and in both cases there was intense and extensive surveillance by both the police and the security services. In both cases the defendants, the solicitors and I were quite sure that telephone tapping had taken place, and the defendants were adamant that any record of their telephone conversations would prove their innocence.
All I could do was request that the trial judge ensured that the prosecution (which is also precluded from using the content of the tapes) did not make assertions about a defendant that conflicted with any information they had about what had been said on an intercept. In order to get round this tricky situation for a prosecutor, it was decided that the tapes of any recording (or the notes relating to any such tapes) would be destroyed before trial. It was argued that the tapes were only used for intelligence purposes and not for prosecution and trial. I think that even Charles Dickens’s bureaucratic government office in Little Dorrit would have been proud of this level of circumlocution.
Both defendants, who were at risk of thirty-year prison sentences, were fortunately acquitted, but without the benefit of the telephone-tap disclosure.
Telephone and computer evidence are now central features of most major criminal trials. The prosecution takes delight in constructing multicoloured and complex telephone graphics to demonstrate association by conspirators, but jurors are not stupid, and they will also be asking themselves why they haven’t heard about the content of the calls depicted in the graphics: something we all know is there, but is never referred to.
It may be getting worse. When the government set up a Privy Council Review in 2007 chaired by Sir John Chilcot, I gave evidence of my experiences and my misgivings. The Privy Counsellors plainly had to grapple with two diametrically opposed forces: one favouring the logic of inclusion, the other security. The result is a compromise that may be unworkable, in which the ban on intercept evidence will be lifted subject to a raft of preconditions and, most worryingly, the increased use of special counsel in a new PII Plus regime. This really is Alice Through the Looking-Glass territory, and is anathema to the concept of a fair trial.