Those of us that prosecute and defend often see prosecutions in nautical terms. Can the Crown construct a watertight case? Can the defence torpedo the case and blast a hole below the waterline?
A much better analogy, in my humble opinion, is baking. This is because as well as getting the ingredients right timing is everything. Of course in baking there is nobody looking to sabotage your effort, that is unless you're a contestant on Bake Off. But the point remains that if you find out at the last minute that one of your ingredients is wrong your Victoria Sponge will collapse in on itself.
Disclosure, a source of constant vexation and anxiety for criminal practitioners, has had a rare and necessary moment in the glare of public attention. There were the Liam Allan and Isaac Itiary cases in December and now the Samson Makele case.
All of these cases had a common feature; a failure at an early point in time to identify undermining messages in sex cases, a discovery that rendered the main ingredient in the case unreliable. This has provoked a torrent of commentary in both the mainstream media and from the legal commentariat regarding fears about the integrity and fitness of the disclosure process.
I have a slightly different point to make. I prosecute regularly and like any prosecutor perusing a new brief immediately turn my mind to the weaknesses in the case that the defence may or may not be alive to. Put another way have I got all the ingredients I need in the right order and at the right time to prevent a soggy bottom?
The test to be satisfied before any suspect can be charged is whether there is a realistic prospect of conviction. In other words is a conviction more likely than not. Lawyers making charging decisions can only do so on the basis of the evidence gathered by the police and put before them. It is however often the case that the police are directed to gather more evidence before a final decision is made.
In any sex case where consent is raised as a defence either in the police interview under caution or because it is self-evident that such a defence will be raised a key issue will be what communication occurred between the parties before the alleged offence. An equally key issue will be what communication occurred between them or between either of them and third parties after the alleged offence.
It seems to me that any prosecutor making a charging decision who has not been provided with that evidence in advance of making a decision runs a real risk of misapplying the test, of mixing the flour and milk before they have any eggs. To my mind a proper disclosure issue is one that arises when a defendant raises an issue for the first time only after charge. If the question was known before charge then that is not a disclosure issue it is a charging issue.
The time is long past for phone downloads and social media communications to be added to the list of essential ingredients for charging decision in sex cases.