Failure to disclose evidence reminiscent of dark days of miscarriages of justice

Vera Baird QC, former Solicitor General, writes about the worrying Mark Kennedy affair, and the Crown Prosecution Service's failure to disclose evidence.

Vera Baird QC was the Solicitor General from 2007-2010, and the Labour MP for Redcar from 2001-2010

Policing climate change protesters by embedding undercover officer Mark Kennedy with them for seven years looks out of all proportion to the risk they present to the public. Crazier still and seemingly far more wicked is the subsequent attempt to convict many of them by suppressing the very intelligence Kennedy’s sleuthing had disclosed.

Twenty six protesters were charged with conspiracy to occupy Ratcliffe on Soar power station though police had a covert tape from Kennedy making clear that the meeting where they were arrested was merely to outline the plan and request volunteers. They knew, therefore, that many of those arrested were not involved but were hearing of the plan for the first time.

Nonetheless six of them were prosecuted and the tape that could have acquitted them was kept back. Last January the CPS, having apparently just discovered the truth, dropped the case at the door of the court.

Twenty others arrested at the same meeting had already been convicted, in a trial in which judge, jury and defendants had been kept totally unaware both of Kennedy and the tape. The 20 had agreed to occupy the plant but justified it as a minor crime to prevent the greater crime of carbon pollution, a defence which the meeting tape might have supported. After the acquittal of the six and when journalists were circling CPS wrote to solicitors for the 20 asking them to appeal.

Police now say that far from CPS acting promptly on discovering the truth, they knew about Kennedy and the tape from the start and were advising, impliedly, against police better judgment, that they should not be disclosed. This conflict echoes scenes before a recent Commons committee when Deputy Police Commissioner John Yates and Keir Starmer, head of the CPS, blamed each other for the poor quality of the original phone hacking inquiry.

This dispiriting case thrusts the criminal justice system back into the dark days of the Birmingham Six and Guildford Four, when the prosecution hid material, apparently driven by public clamour to convict someone for terrorist killings. Even that wholly unpalatable justification for injustice is absent here.

The law is clear. The prosecution must disclose all material that may undermine their own case or assist the defence. Any claim to keep any of it secret – and none was made here – has to be decided by a judge.

Danny, one of the “6”, told me of the stress and worry he and his family suffered between his charge and his acquittal, afraid that he would be wrongly convicted.

If the public sees this as an attempt to pervert the course of justice, people like Danny will not be the only victims. In the miners’ strike hundreds were charged with picketing offences by police to break the morale of Thatcher’s “enemy within”. For years thereafter, in counties like Durham, where every family had a mining link, no jury would ever convict a defendant on the word of police, because everyone knew a story of police misconduct. This case could have a similarly chilling effect.

What better Get out of Jail card could any criminal on trial have than public suspicion that the prosecuting agencies sometimes deceive the courts.

The inquiry which has been announced must be speedy, relentless, and above all, independent. If it finds that the powers that be tried to justify the huge cost to the public of Kennedy’s work by stage managing mass convictions, the implications in an atmosphere of huge cuts in police funding will go further again than even the obviously serious consequences of this case.

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