A damning indictment on the dangerous failure of privatisation in the criminal justice system by a former Tory MP

Jerry-Hayes

Jerry Hayes, practising criminal barrister and former Tory MP for Harlow Pic Credit:Goldsmith Chambers

CROSS POSTED ON BYLINE.COM

I am reblogging this from the site of Jerry Hayes, a former Tory MP and practising criminal barrister. He is highlighting the dangers of miscarriages of justice since the Forensic Science Service was privatised by David Cameron because private companies are cutting corners and not doing a proper job. The person here could have been imprisoned for seven years as a result of their negligence.

THE SCANDAL THAT UNDERMINES OUR ONCE GREAT SYSTEM OF JUSTICE

10 May 2017 at 07:09

I never blog on cases, but today I must break my rule. Yesterday I discovered a scandalous state of affairs which could have led to an innocent man going to jail for a substantial period of time. I will not name the defendant nor the court for obvious reasons. In forty years of practice at the bar this shook my faith in what was once the finest and fairest justice system in the world. Read this and weep. And mourn for British justice.

Yesterday I was sent to the Crown Court to offer no evidence in a firearms case. I had been instructed some weeks ago as Prosecution counsel. Let me give you a thumbnail sketch. Last year the police searched a van. In this van was a tool box and in this tool box were founds guns and ammunition. This comprised of an 8mm blank firing pistol converted to be a lethal weapon. An empty magazine belonging to that hand gun. A Glock self loading hand gun. The magazine from this handgun contained two live rounds. And three further live rounds were found in a knotted bag. It goes without saying that the possession of these items is a very serious offence and carries a minimum sentence of five years for the guns and a consecutive sentence for the ammunition. Anyone convicted potentially faces a sentence of imprisonment of seven years upwards.

The guns and ammunition were forensically examined. The laboratory gave the police what is called a Streamlined Forensic Report (SFR). It came to this conclusion, ‘a match exists between the defendant and the sample’. In other words the defendant’s DNA was found on one of the magazines.

This was served on the CPS and duly uploaded onto the digital case system, effectively serving this on the court and the defence. An SFR is precisely that, and both prosecution and defence are entitled to see the full report. But very often it is taken at face value. As there was no other evidence the CPS reviewing lawyer wanted further information. He asked for more information. Was there a mixed profile? How strong was the DNA? He received obfuscation from the lab. ‘The SFR provided indicated that a number of results were subject to progress.’ But the lawyer was dogged in his determination and finally received this bombshell. ‘The lab confirms due to confusion they have never compared mixed profiles against the defendant.’ They also stated that ‘progress means there are no additional findings’. Then came this chilling line. ‘The lab refused to elaborate any further……’

The reviewing lawyer reported the following,‘I am concerned that the language used in the SFR appears to assert positive and ongoing actions when they are clearly negative. I have requested the OIC to obtain an email from the forensic officer confirming the phone communication and what is implied in the SFR…..he confirmed that the report was misleading.’

The CPS, underfunded, overworked and creaking at the seams comes in for a lot of criticism. In this case the reviewing lawyer deserves a herogram.

Yesterday when I offered no evidence I explained to the judge in detail what had happened. I will never forget the look of horror on his face. There will be a thorough judicial investigation.

And yesterday SKY NEWS reported that a private forensic laboratory had ‘manipulated data.’ What the hell is happening? I will tell you. In 2010 the government announced that the national forensic service (the FSS) was to be closed down and forensic analysis would be privatised. Let me be clear that the FSS has had its fair share of cock ups. But the government announcement prompted horror from professionals. The National Audit Office warned, ‘this could spark a crisis within the justice system.’ They were right. Soon the court of appeal will be swamped. Will someone, somewhere listen? I won’t hold my breath.

Banned by the British courts: A VIP’s book on how he was sexually abused

In an era when child sexual abuse is literally coming out of the closet, an extraordinary decision has been taken by a British court to ban a book from an eminent performing artist on how he survived abuse as a child.

A judge has upheld an injunction bought by the man’s son to avoid publication on the grounds it would cause psychological damage to his son if the public knew about his father’s early life at school.

I am indebted to the excellent Inforrm blog for this story.You can read the full report by Dan Tench, a lawyer from Olswang, here.

The book was described in court as Inforrm reports as bringing together these terrible experiences “in an artistic and insightful way” and to be in “striking prose” and, it was said, contained “an important message of encouragement to those who have suffered similar abuse to speak about their past”.

But the man had a son by a marriage now dissolved.  That son lived abroad (in a country quaintly termed “Ruritania” in the judgment) with his mother.  The son suffered from a combination of attention deficit hyperactivity disorder, Asperger’s, Dysgraphia and Dyspraxia.  Two psychologists said that the publication of the book revealing such details of his father would be likely to “exert a catastrophic effect on [his] self-esteem and to cause him enduring psychological harm”.

The injunction was granted by Lady Justice Arden using a bizarre piece of English law. As Dan Tench reports that:

“the publication of the book would be contrary to the tort of intentionally inflicting mental suffering as originally established in Wilkinson v Downton [1897] QB 57.  Amazingly, this ground was sufficient for the boy to secure his injunction.

Wilkinson v Downton is a legal curiosity well-known to legal students.  In it, a man as a practical joke had told a woman that her husband had had a serious accident.  She had responded badly to the information and had suffered nervous shock.  She was entitled to recover compensation for the psychological damage.  It appears to remain good law, albeit rather rarely used.”

To fit the bill Lady Justice Arden decided this should apply if the claim was true rather than false and that because of the internet the boy could read it. As she put it : “the relevant information was disseminated to the world at large, provided there was a risk that it would be received by the boy (he was said to be “computer savvy” and may read it via the Internet). ”

Finally the argument was used, among others, that the boy might visit London and be able to see a copy of the book.

Dan Tench concludes “The judgement is perhaps best seen as simply a rogue decision which hopefully will be quickly put out of its misery by the Supreme Court.  But if not, we have a precedent binding on the courts of first instance and the Court of Appeal which will cause all manner of difficulties.”

I would go much further. To my mind to ban a book using case law based on practical jokers to stop someone writing about child sexual abuse is a sick joke in itself. I hope this outrageous ban is lifted as soon as possible.

Update: Today the Telegraph reports that a group of eminent authors including William Boyd and sir Tom Stoppard have objected to the ban.