News Criminal Defence 29th Jan 2018

HHJ Perrins slams CPS for wholesale disclosure failings as Narita Bahra and Fiona Robertson’s client walks free

On the 26th of January 2018 the prosecution offered no evidence on all counts on the indictment faced by Narita Bahra and Fiona Robertson’s client thereby bringing to an end a trial which began 17 days earlier. Cristina Bosoanca was accused of trafficking her best friend from Cyprus to the UK, via Romania, and forcing her to work as a prostitute.

Following nine days of evidence by the complainant and extensive legal argument on disclosure and abuse of process the prosecution accepted there was evidence which significantly undermined the complainant’s account and offered no evidence. The case demonstrates the devastating impact prosecutorial negligence can have on the lives of defendants – Cristina Bosoanca spent 13 months in custody during which time she gave birth to a son with a genetic disorder. She was forced to give birth without the support of her partner or family and her son spent the first five months of his life in HMP Bronzefield.

HHJ Perrins ordered an inquiry into what went so catastrophically wrong in this case. He observed that there appeared to have been a wholesale failure on the part of the prosecution to deal with disclosure properly.

HHJ Perrins observed that the defence had made repeated focused requests for disclosure but the court had been fundamentally misled at pre-trial hearings and applications to extend the custody time limits as to the strengths of the case, the CPS’s handling of disclosure and the prosecution’s trial readiness. HHJ Perrins slammed the CPS and police for “serious errors” in their handling of the case stemming from the failure to accurately record and properly review unused material. The clearest example was in relation to the medical records in the case – it was the prosecution case that the complainant was repeatedly raped whilst working in a brothel as a result of which she became pregnant. Narita Bahra and Fiona Robertson challenged this assertion on Ms Bosoanca’s behalf and repeatedly requested disclosure of the complainant’s medical records to show that the complainant was in fact pregnant before she travelled to the United Kingdom.

The defence were repeatedly informed that there were no medical records and no reference to medical records appeared on the unused material schedule. However, several days into the prosecution case the defence were told that in fact there were medical records, including a witness statement from a doctor who examined the complainant following her initial complaint. This evidence helped to establish that she was pregnant when she arrived in the United Kingdom thereby undermining her account. This was described by HHJ Perrins as one of the more serious failings identified and that oversight and review of disclosure by the CPS appears to have been lacking.

HHJ Perrins observed that a failure to comply with the rules of disclosure creates a significant risk that material which undermines the prosecution case or assists a defendant will be kept from the defence. This in turn creates a very real risk of a miscarriage of justice. This was illustrated all to clearly in this case in the failure to disclose key messages sent via social media. In August 2017 Narita Bahra and Fiona Robertson requested disclosure of all relevant conversations between the complainant and others via social media which it was said would materially support their client’s case. On the second day of the trial the prosecution served approximately 65,000 such messages sent via WhatsApp. Further messages sent via Facebook was served as the trial progressed. This material fundamentally undermined the account given by the complainant but was not disclosed despite having been reviewed by the police as far back as February 2017.

Giving evidence on oath as part of the inquiry Deputy Chief Crown Prosecutor Malcolm McHaffie accepted the CPS had fallen short in this case and apologised to the Court. He indicated an independent review into the case had been launched and would be provided to the DPP as well as the Court in an effort to identify what went wrong and ensure such mistakes were not repeated.

The case has attracted widespread media attention due to the ongoing climate of disclosure failings and the severe impact such issues had in this case on Miss Bosoanca. The persistent issues with securing proper disclosure in a timely fashion are not new concerns to those working in the system – the only hope is that the public criticism of such failings may finally result in positive change to ensure better systems are put in place to prevent future miscarriages of justice.

Narita Bahra and Fiona Robertson were instructed by SJ Law

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