Once again, the justice system shows its frailties as disclosure rules come under scrutiny
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The circumstances in which Sally Clark's convictions were quashed yesterday raise serious questions about the public's confidence in the criminal justice system.
For many years, criminal defence lawyers have complained of the weakness of the disclosure rules that are designed to allow defendants to have access to the prosecution's unused evidence.
The prosecution's failure to ensure Sally Clark's legal team had knowledge of the key blood tests taken from Harry Clark by a Home Office pathologist, Dr Alan Williams, shows there are still severe problems with our system of disclosure.
After the miscarriages of justice in the cases of the Birmingham Six, Guildford Four and Judith Ward, reforms were introduced to prevent the prosecution sitting on evidence that might help an accused prove their innocence. The Criminal Procedure and Investigations Act 1998 requires disclosure to be made by copying the information to the defendant or, if that is not possible, allowing the defendant to inspect it.
Sally Clark's barrister, Clare Montgomery QC, argued in her appeal that "unfortunately, this case demonstrates the lessons that should have been learnt as a result of the decision of the Court of Appeal in Ward [Judith Ward 1993] have not been''. She said the duties of the prosecution and forensic scientists instructed by the Crown were spelt out in "clear and uncompromising terms'' by the Court of Appeal.
Despite these criticisms, the Government now seems more concerned with disclosures by the defence. In its criminal justice Bill, it envisages an increase in the burden of the defence in revealing more relevant information so the prosecution is not ambushed at trial. The Bill is less concerned with the responsibilities of the prosecution.
But yesterday's ruling by the Court of Appeal will only confirm what the Bar Council and the Law Society fear – that the problem remains protecting the defendant. The Clark case also raises questions on the standing and professionalism of expert witnesses.
The prosecution asserted that the chances of two cot deaths in such proximity were one in 73 million. Sally Clark's team believed that misplaced statistic left the jury with no option but a guilty verdict.