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Has legislation dealing with the disclosure of unused material, implemented in the wake of cases like R v Ward [1993], consigned miscarriages of justice to the past?

Has legislation dealing with the disclosure of unused material, implemented in the wake of cases like R v Ward [1993], consigned miscarriages of justice to the past?

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An essay for the 2011 Undergraduate Awards Competition by Patrick McDaid. Originally submitted for Law of Evidence at University of Ulster, with lecturer Dr Eugene McNamee in the category of Law
An essay for the 2011 Undergraduate Awards Competition by Patrick McDaid. Originally submitted for Law of Evidence at University of Ulster, with lecturer Dr Eugene McNamee in the category of Law

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Published by: Undergraduate Awards on Aug 29, 2012
Copyright:Attribution Non-commercial

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10/27/2013

 
1
Introduction
With growing concern in the early 1990’s at the number of high-profile miscarriage of justicecases involving the failure by the police in particular to disclose key material to the defence. theBritish government set about examining its criminal justice system through the
 RoyaCommission on Criminal Justice (Royal Commission)
. This resulted in the disclosure proceduresduring criminal trials being put on a statutory footing. This paper challenges the dominantdiscourse that this legislation has consigned miscarriages of justice to the past. Rather, usingacademic research and case law, it establishes that those at the heart of the problem in the earlier miscarriages of justice, the police, have paradoxically been empowered by the legislation. This,coupled with police culture and the lack of sanction for failure to disclose material, is a lacuna atthe heart of the current legislation, which, until rectified, ensures that miscarriages of justice arenot yet consigned to the past.
Challenging the dominant discourse
The dominant narrative tells us that the current legislation regulating the disclosure of evidence by the prosecution in criminal trials has created a system which is effective in ‘bringing about theacquittal of the innocent and the conviction of the guilty’.
1
Within this paradigm of thoughtmiscarriages of justice relating to non-disclosure of evidence are consigned to the past; to a period where legislation was not in place to define the ‘prosecution’s obligations to disclose
 
1
John Arnold Epp, ‘Achieving the aims of the disclosure scheme in England and Wales’, (2001)5(3) EvPro 188, 188.
 
2
unused material that might assist the defence’,
2
and miscarriages of justice cases involving policemisconduct are now ‘the exception rather than the rule’.
3
Challenging this discourse, Naughton redefines the term ‘miscarriage of justice’ to include ‘allsuccessful appeals against criminal conviction, for they each indicate that a wrongful convictionhas occurred’.
4
In unearthing this ‘subjugated discourse’
5
he debunks the dominant discourse byshowing that such narratives exclude analysis of almost 98% of criminal convictions.
6
Additionalstudies have also highlighted hundreds of examples of prosecution non-disclosure,
7
creating thefear that non-disclosure is a ‘time bomb’ within the justice system.
8
Thus, the narrative is moved‘beyond the closed analytical structure’
9
of the dominant discourse to show that miscarriages of  justice are not just the exception to the rule, but a wider problem meriting further attention, asopposed to a relic of the past.
 
2
David Kyle, ‘Correcting miscarriages of justice: the role of the criminal cases reviewcommission’, (2003-2004) 52 Drake L. Rev. 657, 659
3
ibid 671.
4
Michael Naughton, ‘Redefining Miscarriages of Justice’, (2004) 45(2) Brit. J. Criminol. 165,167.
5
ibid
6
ibid 169.
7
Grania Langdon-Down, ‘Law: The Whole Truth and Nothing But?; Non-Disclosure of Evidence that has led to some 200 Wrongful Convictions. So What is the Government Doing toChange This?’,
The Independent 
( London, 7 December 1999) 12.
8
Jon Robins, ‘Anxiety over disclosure plans’’, (2000) Issue 7 - 6(1) LS Gaz.
9
Herbert Marcuse,
One Dimensional Man,
2
nd
ed. (Routeledge, London 1991) 88
 
3
Locating the problem
Glidewell LJ in the 1992
 R v Ward 
10
 
case made it clear that police and forensic scientists’ non-disclosure
11
was central to the conviction being overturned.
 R v Ward 
is one of what one former Criminal Cases Review Commission (CCRC) member refers to as ‘the woeful succession of cases involving police misconduct’.
12
That police misconduct was the major concern in relationto tackling miscarriages of justice is highlighted by Taylor who argues that:With the empowerment of the CPS in 1985, control of the prosecution processwas removed from the police, in a move suggestive of a lack of confidence in theability of the police to manage prosecutions.
13
This is a view echoed also by Jackson
14
and, significantly, accepted by WG Runiciman
15
whochaired the
 Royal Commission
.It appears self-evident that the bulk of the blame for these miscarriage of justice cases lay on thedoorstep of the Police and prosecution. This perspective is further enhanced by the fact that, inthe wake of the
 R v Ward 
judgment, defence teams were granted wide access to prosecutionmaterial,
16
ensuring that the police and prosecution were no longer the sole arbiters of what
 
10
 
 R v Ward 
[1993] 2 All ER 577 CA at 598.
11
ibid 599.
12
Kyle (n2) 671.
13
Chris Taylor, ‘Advance Disclosure: Reflections on the Criminal Procedure and InvestigationsAct 1996’, (2001) 40(2) Howard J. Crim. Just. 114, 118.
14
John D. Jackson, ‘The effect of legal culture and proof in decisions to prosecute’, (2004) 3(2)LP & R 109, 124
15
W.G. Runciman, ‘An Outsider’s View of the Criminal Justice System’, (1994) 57(1) Mod. L.Rev. 1.
16
Michael Mansfield,
 Memoirs of a Radical Lawyer 
(Bloomsbury, London 2009) 259.

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