Whose Justice?

Letters

Vol. 15 No. 19 · 7 October 1993

From Ronan Bennett

In the week that David Cooper died, after a long, painful and unsuccessful struggle to clear his name, I read Stephen Sedley’s comments on the Court of Appeal with bewilderment and frustration (LRB, 23 September). While Sedley rightly criticises aspects of the seriously deficient Runciman Report on criminal justice, he suggests that the Court of Appeal retains some credibility: ‘It is worth reflecting for a moment that, albeit the reference back to the Court of Appeal has in most cases been preceded by a public campaign, it has in each successful case been the Court of Appeal that has finally acknowledged the injustice.’

Should any legitimate claim for the Court’s merits be based on the self-selecting category of ‘successful cases’? David Cooper’s was an unsuccessful case. He went to prison with Michael McMahon for the 1969 Luton Post Office Murder. Ludovic Kennedy has described the evidence against the two as ‘wicked beyond belief’, depending as it did on a proven liar and criminal and a policeman later jailed for corruption. The Court of Appeal had two opportunities to put matters right, in 1975 and 1977. Instead, in the words of Cooper’s lawyer, the Court ‘ignored, marginalised, contradicted and distorted more than twenty compelling areas of evidence that had surfaced since his conviction’. Eventually, and most unusually, the Home Secretary had to step in, override the Court and free the men, though without clearing their names.

Another ‘unsuccessful case’ about which the Court of Appeal should hang its head in shame is that of the Carl Bridgewater defendants (for whom Sedley has appeared). When Lord Lane, the former Lord Chief Justice, reviewed the case in 1981 he went through the sophistry familiar from Cooper and McMahon and so many other hearings, and upheld the convictions without even allowing a full hearing. On that occasion, the Court, as it has so often done in the past and continues to do today, behaved as though it were the jury, a role for which it has no authority.

I do not accept Sedley’s argument that the Court’s tendency to adhere ‘to the principles of justice’ has ‘found itself cheered on to victory in the Court of Appeal’ in miscarriage of justice cases. On the contrary, the Court has repeatedly proved itself an obstacle to justice: the innocent men and women released after years of incarceration were liberated not because of but in spite of the Court. In these ‘successful cases’ the Court of Appeal gave way only after its collective arm was twisted up its unyielding back. I therefore see nothing paradoxical in the passage Sedley quotes from my article on the Guildford Four in the LRB of 24 June.

The truth is that even in the ‘successful cases’ the Court has shown marked reluctance to believe appellants’ claims. In 1977 the Court rejected the Guildford Four’s application for leave to appeal, though the judges had the benefit of hearing from the real bombers. In January 1988 Lord Lane turned down the appeal of the Birmingham Six in scathing terms after a lengthy hearing in which defence lawyers adduced evidence of police wrong-doing and scientific incompetence. In his judgment, Lane said that the more he listened to the evidence, the more he became convinced the Six were guilty. That the Six were eventually freed owes nothing to the Court of Appeal, beyond the formalities, and everything to the men themselves, their lawyers, families and supporters. Let it not be forgotten that the Court’s ‘profound need … for the public respect’ that ‘visible adherence to the principles of justice’ commands took 14 years to manifest itself in the case of the Guildford Four; 16 in the Birmingham case; 17 in that of Judith Ward. When the need for public respect became unendurable the Court of Appeal did not ‘acknowledge the injustice’, as Sedley states. On the contrary. When Lord Lane freed the Guildford Four he did so with ill-grace, uttering not one word of apology and referring only to ‘this unhappy matter’.

Lord Taylor has now replaced Lord Lane as Lord Chief Justice. Is this a good thing? Taylor was one of the counsel for the prosecution in the trial of Judith Ward, whose conviction was largely due to the failure of the police, the prosecution and the DPP to disclose evidence helpful to the defence. Then there is the Stefan Kiszko case, to which Sedley also refers. True, the Court of Appeal freed Kiszko – after many years in prison – but the evidence used to quash his conviction had been available at the time of the trial. It was not heard because it was withheld from the defence and the jury. Lord Taylor prosecuted Kiszko.

Since taking over from Lane, Taylor has managed to reverse the progressive decision on compulsory disclosure of evidence in the Ward case by his recent ruling in Rowe and others (the so-called M25 Case). As a result of Taylor’s ruling, the prosecution can now go to court – in the defence’s absence – to apply for evidence to be withheld from the defendants and their lawyers. As so many miscarriage of justice cases have arisen precisely because of non-disclosure, Taylor’s decision can only be regarded as dangerous.

Ronan Bennett
London E8

Vol. 15 No. 20 · 21 October 1993

From David Herbert

Stephen Sedley, in his thoughtful discussion of some of the dilemmas posed by the reform of judicial procedure (LRB, 23 September), quotes Professor Zander’s view that ‘it is unsafe for a system of justice to tolerate seriously tainted evidence of any description, even if, shorn of it, the case might have stood up’ and that ‘the reception of such evidence … should be grounds for quashing a conviction even where there was other evidence capable of establishing guilt.’ This is an extreme case of throwing out the baby with the bathwater. If we are to avoid the sometimes absurd consequences of American restrictions upon the pursuit of evidence (such as, for example, dismissing a prosecution for a serious felony because one piece of evidence had been unlawfully obtained in as much as it had been taken, without permission or search warrant, from refuse put out by the accused – it being held that such material remained the property of the person depositing it until collected by the municipality), we must distinguish more precisely between the conjoint but separate objectives of a trial hearing: firstly and primarily, to reach a proper verdict based upon the facts of the case so far as these can be ascertained; and secondly, in doing so, to help to maintain high standards of pre-trial procedure, the latter being more properly thought of as a condition or implicit corollary of the former. There is no reason why these two objectives should conflict with each other to the extent that the first is jettisoned altogether in favour of the second.

Let us agree that Professor Zander’s view that it is unsafe to tolerate seriously tainted evidence is right. Plainly it would be wrong to knowingly allow any such evidence to play a part in the conviction of an accused even if guilty. This is not the same as saying that a court should, in any such case, be precluded from reaching a verdict of guilty where there is other evidence which would justify such a verdict.

One consequence of such a provision, once enacted, would be an incentive to challenge, on this ground, any piece of evidence which might seem to the defending side to have the remotest chance of proving vulnerable to such a course – the prospect of thus snatching ‘Victory from the very jaws of defeat’ (in a case in which the defence knew or believed that other evidence, sufficient to make a ‘guilty’ verdict probable, was available to the prosecution) would be a temptation impossible to resist.

At issue is whether we can agree with Professor Zander when he says: ‘Where the integrity of the process is fatally flawed, the conviction should be quashed as an expression of the system’s repugnance at the methods used by those acting for the prosecution … the integrity of the criminal justice system is a higher objective than the conviction of any individual.’ We may agree that as a generality the integrity of the criminal justice system is a higher objective than the conviction of any one individual. This is far from saying that in all cases where some part of the evidence is found to be unsatisfactory, the whole process that the court is at that moment about (namely, the enforcement of the law) should be aborted, and that someone who has, perhaps, shown themselves to be a serious danger to society should be allowed to return to their criminal activities. This would be to bring our adversarial trial procedure even nearer to the character of a game, in which the unwary infringement of a rule can lead even a player who deserves to win to an abrupt defeat. The protection of society from its anti-social elements is more important than this and is bought at a considerable expense to that society.

That ‘the repugnance felt by the system’ towards wrongful methods used in prosecution should be expressed by means of a summary acquittal of someone who has, perhaps, perpetrated far more culpable acts is therefore both inept and inappropriate. The use of illegitimate violence or coercion and the distortion of evidence so as to lead a perversion of the course of justice, are, in themselves, crimes, and should be dealt with as such, quite separately from the trial in which they may figure. If there is any fault of logic involved it is that of false analogy in the citation of the judgments of Lords Griffiths and Bridge. There is an important and, I would say, decisive distinction between the kind of irregularity dealt with by them and the one at issue; in the case on which they passed judgment the unlawfulness, lay essentially in the detention of the person brought before the court; and for any verdict at all to be arrived at in the case the trial judge would have to preside over the continuance of this unlawfulness, which he could not rightfully do. The case is quite otherwise in trials of the kind under discussion.

David Herbert
London WC1

From R.W. Farrington

Stephen Sedley makes light of the defects of the Criminal Justice Act 1991 and blames the mass media for its rapid amendment. I doubt if many magistrates would agree. They were already used to setting the level of fines in a way that took account of offenders’ means, so far as these were known. That this was right in principle was not disputed but it was a mistake to suppose that, without an administrative burden which no one contemplated, the principle could be applied invariably and with exactitude. For a start, how were an offender’s means to be ascertained? The Act provided for written statements to be submitted and there were indeed penalties for false statements. But how feasible was it ever going to be to investigate statements, even by way of random sample? And without this what were statements of means going to be worth?

Another difficulty was the high proportion of offenders who offered no statement of means because they never attended court and, as is common when proceedings are initiated by summons, were found guilty in their absence. How were such cases to be treated? It was open to the court to treat such an offender as being in the highest financial bracket, the argument for so doing being that he had had his chance to show that he was not and had not taken that chance. It was this approach that occasionally led to fines that attracted public derision – justifiably, I suggest, and not to be dismissed by blaming the press. If, of course, a court were to assume that an offender was of average means for the area, as most courts did, a rich man or woman could avoid a higher fine merely by offering no statement, so defeating the whole point of the unit-fine system.

Nor was this all. Sedley is probably right in thinking that the public accepts the principle of relating fines to means. But it also accepts the principle of punishing the primary offender in a case of joint action more severely than one who plays only a minor role. The unit-fine system, in a case where the former was unemployed and the latter not, could easily have the opposite effect. This is indeed arguably right but I doubt if it is commonly accepted as such and suspect that the public is happier when the courts are left free to juggle both principles and to sentence accordingly.

Sedley also dismisses much too readily the difficulties which flowed from the Act’s provision for taking into account previous convictions. In brief, the ‘circumstances’ of earlier offences could be an aggravation but not the offences themselves. This distinction was one which could no doubt be made to stand up on paper but which, for all the guidance given by the judiciary, was often bafflingly hard to apply. It is not a distinction which seems to catch the principle of fairness to which Sedley refers. It may be impossible to catch this exactly in the wording of a statute and, as there was little reason to suppose that sentencers were not seized of the principle, the attempt to do so seems fundamentally misconceived.

Stephen Sedley himself seems to accept that amendment of the Act was required in these two areas but he offers no suggestions as to how this might have been achieved. The Home Secretary at the time declared that amendment had been considered and found unachievable. Most magistrates, I believe, will have agreed. I find myself in very general agreement with what Sedley has to say about the Royal Commission’s report but he shows little awareness of the practicalities of summary proceedings.

R.W. Farrington
London SW1