The trial that should never have happened

The Damilola case has at last ended, with the jury returning verdicts of not guilty upon the two defendants left in their charge. A judge has the power to direct a verdict of not guilty if the evidence is such that no reasonable jury could convict. Mr Justice Hooper exercised this power twice during the trial. He has immense experience in criminal trials. He had no hesitation in directing the jury that the testimony of the young girl upon whom the prosecution relied was so unreliable that no reasonable juror could possibly accept it.

Anyone following the case would have to agree. Although the judge directed the acquittal of another defendant after a careful review of all the evidence, it was the rejection of the young girl's evidence that, understandably, caught the headlines.

During the course of his cross-examination, she continually contradicted herself and departed from what she had said in her police interviews. She was accused of trying to set fire to the hotel where the police had arranged for her to stay and ran up a bill of £4,000. She was shown to be abusive, irrational and proved to be an inveterate liar.

The police must have known all of this before the trial commenced. How could the police and the Crown Prosecution Service have ever believed that any juror would convict a defendant on the basis of her evidence?

There were always going to be problems. Now the police have to disclose material which years ago would have been safely relegated to a locked filing cabinet. This includes all earlier statements or drafts made by a witness. It is worse in the case of witnesses who are young. Before trial they are interviewed on video which is available to the defence. These interviews are conducted by specially trained police officers in accordance with a memorandum of good practice issued by the Home Office and the Department of Health. There is no opportunity for a dummy run and the early interviews are critical in seeing how the evidence develops. They will be used by the defence to test consistency and honesty.

In this case, the police were faced with a difficult task. The calibre of potential witnesses was bound to be poor. They may well be disruptive, difficult and unreliable with a bad school record. They may well be subject to intimidation or have secret motives for putting someone in it.

Worse still, in this small community there could be an anti-police culture, which means that you do not co-operate with the law under any circumstances.

On the other hand, the police desperately needed the testimony in order to stand a chance of a conviction. The question here is: did the police go too far in order to get this young girl to give evidence for the prosecution?

In many serious criminal cases, the prosecution have to rely upon the evidence of an accomplice who expects something in return for shopping the others. This can range from a reduction in sentence to a complete immunity against conviction.

Clearly there comes a time when the inducements are so great that the honesty of the witness's evidence comes into question. It is tempting to give false evidence to get the benefits. Details of the benefits have to be disclosed to the defence and the witness's integrity is an issue for the jury at the trial.

In one notorious case, an accomplice called Bertie Smalls negotiated such a good deal for himself in return for giving evidence against his bank robber colleagues that the Court of Appeal criticised the prosecution for agreeing to it.

It seems here that the young girl was given the impression that she would benefit financially by giving evidence. She was given a taste of what was for her a life of luxury in a hotel. Leaving aside her patent unreliability, these inducements would seem inappropriate and excessive.

The police would say this was the only way she could be persuaded to give evidence, but the problem is that evidence encouraged in this way may well be viewed by the judge and jury as worthless. Her evidence was being purchased.

Such evidence can undermine the integrity of the whole prosecution and lead to the jury acquitting everyone, even those not affected directly by her evidence. The only answer is real community policing over several years so that witnesses in such areas will co-operate with the police and not see them as natural enemies.

It is hard to imagine a more vile offence than that perpetrated against this small, happy and defenceless boy set upon by vicious bullies.

Admittedly, the pressures to get a conviction were enormous but prosecuting involves taking a dispassionate view of the evidence and having the courage not to call a witness whose evidence has been induced in this way and whose evidence is patently unreliable. The police and the CPS will have to review their methods of obtaining such evidence in such difficult circumstances in the future.

So who should take the responsibility in such a case? The Code for Crown Prosecutors is clear enough: "When deciding whether there is enough evidence to prosecute, Crown Prosecutors must consider whether the evidence can be used and is reliable."

The Code also requires that the evidence should be examined closely "when deciding if there is a realistic prospect of conviction". It is the Crown Prosecution Service which has the ultimate responsibility.