New failings over the disclosure of evidence in the criminal justice system have emerged after prosecutors charged a man with rape in a case where the woman involved did not want a charge to be brought.
The police then failed to list her statement, in which she said she did not believe the man had done anything wrong, in the so-called schedule of unused evidence that could help the defence.
The case – one of the latest to expose failings in the system in England and Wales – was uncovered by BBC Panorama.
All current rape and serious sexual offence cases are being reviewed and the Director of Public Prosecutions told the programme some have already been sent back to the police for further investigation.
It is the role of the police and prosecution to ensure defence teams have all the evidence that may undermine the case.
But both the men’s barristers say they were not aware of the woman’s statement until the start of his trial in January, although the Crown Prosecution Service says it was sent to the solicitors months earlier.
The judge at Snaresbrook Crown Court then asked the Crown Prosecution Service to review its decision and it dropped the case.
The case involved two men who went home with a young woman after meeting her and a friend on a night out.
Back at her flat, the woman “Jane” says that the two men started trying to have sex with her.
Jane, not her real name, told Panorama one of the men involved, Male Two, stopped as soon as she asked him to. The other man, Male One, continued having sex despite her protests.
She says Male Two pulled the other man off her.
After reporting the incident to police, she made a statement in which she said: “I do not believe Male Two should be charged. I do not believe he did anything wrong on the night.
“I am thankful that Male Two was there as without him I do not know how long Male One would have continued to have sex with me.”
The CPS charged both men with rape.
The men’s barristers say they only found out about the woman’s statement at the start of the trial, after they spotted a reference to it in a police notebook.
The CPS said it sent Jane’s statement to the defence solicitors months before. One solicitor now says the statement was received it but only found recently.
Jane later withdrew her support for the prosecution of the other man, Male One.
His defence team requested a further download of material from her phone. She felt it was disproportionate. She was also affected by the delays in the original trial.
“I had so much faith in the judicial system. And now, after this, I’ve completely lost faith,” she said.
Alison Saunders, the Director of Public Prosecutions, told Panorama she stood by the CPS decision to prosecute Male Two.
“We prosecute on the evidence, not on necessarily what a complainant, what her views might or might not be.”
She says the CPS dropped the prosecution of Male Two when it got to court because it has a continuing duty to review.
Ms Saunders said: “There were some issues that were raised at the point of that particular suspect’s trial and we decided, looking at it again, we shouldn’t proceed with it.”
Panorama – Getting a Fair Trial will be broadcast on BBC One on Monday 30 April, at 20:30 BST, or watch later on BBC iPlayer