Police retention and storage of evidence in England and Wales

Abstract

Central to the operation of the appellate system, is the ability of individuals who claim that their conviction is in error, to revisit and re-examine evidence gathered during the investigation, as well as that relied upon at their trial. High-profile miscarriages of justice have often only been remedied when there has been defence access to materials post conviction. There is also an imperative for forces to retain evidence in investigations in which no perpetrator has been detected or convicted, to facilitate cold case reviews. In order to give effect then to an appellate system and enable cold case reviews, evidence needs to be retained and properly stored. If materials are not retained and stored correctly, then re-investigations are rendered impossible. Retention is especially critical in respect of physical materials that could be subject to forensic examination. With the progress of science and technology, and the interpretation of results, it is essential that such physical (and now, often digital) materials are retained for future (re)evaluation. From analysis of responses to a Freedom of Information request to all police forces in England and Wales, and qualitative interviews with criminal justice stakeholders, this article examines the retention and storage of materials, and considers the operation and future of the Forensic Archive Ltd. It details a worrying picture of inconsistency, with confusion over what should be retained, and how. It concludes that justice demands that we accept that the proper retention and storage of materials is fundamental to the fair and effective operation of our criminal justice system, and ensures that the Court of Appeal can fulfil its remit in addressing wrongful convictions and forces can pursue justice in cold cases.

Digital evidence in defence practice: Prevalence, challenges and expertise

“…Investigative material can be either relied upon at trial or gathered during the police investigation but not used or disclosed to the defence (McCartney and Shorter, 2020). Respondents also noted difficulties when attempting to access DE for the defendants and the problems of establishing contact and visiting the police forces where copies of the digital data requested were held.…”

“…A lack of timely access and funding to interrogate the DE presented by the prosecution, and a fragmented understanding of DE limitations, are also reflected in our data. Compounding these issues is continued poor communication between criminal justice agencies (Bellamy, 2021; McCartney and Shorter, 2020; Tully, 2020).…”

“…Following the dissolution of the Forensic Science Service in 2012, the forensic market in England and Wales has been fragmented and unstable. Three main firms (Eurofins, Cellmark and Key Forensics) have provided the bulk of the defence and prosecution evidential work for most types of forensic evidence (McCartney and Shorter, 2020). This excludes fingerprints, which are often analysed by specialist police personnel based in the forensic science support teams of police forces.…”

“…'Cherry picking' (Collie, 2018), a term used by some respondents to describe how police do not supply all the relevant material, omit details from the information they hold, or miss evidence altogether, was also reported. Investigative material can be either relied upon at trial or gathered during the police investigation but not used or disclosed to the defence (McCartney and Shorter, 2020). Respondents also noted difficulties when attempting to access DE for the defendants and the problems of establishing contact and visiting the police forces where copies of the digital data requested were held.…”

“…52–61), and advised that a careful selection of devices with potential evidential information is undertaken. However, this goal is still to be accomplished, as local guidance and practices vary across the 43 forces of England and Wales (McCartney and Shorter, 2020).…”