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.
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.
Marriage of Souls
E.E. Duncan-Jones’s thoughts on same-sex love in Donne’s poem ‘The Anniversarie’ (Letters, 7 October) find some confirmation in an essay published last year in Homosexuality in Renaissance and Enlightenment England, edited by Claude Summers (Harrington Park Press). George Klawitter draws attention to the verse epistles written in 1592-4, perhaps six years before ‘The Anniversarie’, between Donne (aged 20-22) and Thomas Woodward (aged 16-18). In the sonnet ‘Pregnant again with th’old twins Hope, and Feare’, Donne writes of his eagerness for Woodward’s letter and delight at receiving it:
After this banquet my Soule doth say grace,
And praise thee for’it, and zealously imbrace
Thy love, though I thinke thy love in this case
To be as gluttons, which say ’midst their meat,
They love that best of which they most do eat.
In the same volume, Janel Mueller discusses Donne’s ‘celebration and defence of a passionate lesbian relation’ in his poem ‘Sappho to Philaenis’.
William Empson observed in relation to the Woodward poems: ‘It would leave a scandal-monger in no doubt that the two lads had been up to something together’ (in his essay, ‘Rescuing Donne’). Our current sense of the scope of ‘friendship’ should help us to take the question further; see especially Alan Bray’s article, ‘Homosexuality and the Signs of Male Friendship in Elizabethan England’ in Histoary Workshop (1990). What will not easily be resolved, nonetheless, is whether Donne is being idiosyncratic and adventurous, or merely conventional – precisely the controversy in relation to his apparently cross-sex writings.
University of Sussex
George Tintor (Letters, 7 October) seems unable to distinguish either between Fascist and Anti-Fascist Croats, or between Fascist and Anti-Fascist Serbs. He writes that ‘the Nazis were greeted with flowers as they marched into Croatia. Hitler rewarded the Croats with an enlarged state that included most of Bosnia-Herzegovina.’ Which Croats did Hitler reward? Not the Croats of Dalmatia and Medjimurje whose land was annexed to Italy and Hungary by the Nazis. Not the Croats who resented having their country treated as a colony by the German and Italian occupiers. Not the countless Croats who opposed the Ustashe Fascists and paid for opposition with their lives. Not the supporters of Vladko Macek, Croatia’s leading pre-war politician, who was incarcerated by the Ustashe throughout the war for refusing to collaborate (the Nazis used the Ustashe to rule Croatia precisely because no popular mainstream Croat politicians would do the job). Some Croats had indeed initially viewed the Germans as liberators from Serbian oppression, but most soon saw that German rule was even worse than Serbian. By the end of the war the Croatian Partisans had an army of 150,000 fighting the Nazis and Ustashe (compared to only eight thousand or so Croat troops whom Hitler was able to use on the Russian front).
Tintor claims that ‘the Serbs defied Hitler in March 1941 by refusing to accept the Tripartite Pact.’ Ordinary Serbs certainly were opposed to the Pact, but the same cannot be said for Serbia’s rulers. On 25 March 1941 Yugoslavia joined the Tripartite Pact. On 26-27 March a Serbian nationalist coup installed the Government of General Simovic, who reaffirmed Yugoslavia’s adherence to the Pact on 30 March. Tintor claims that wartime Serbia was not a Fascist state and that its ruler, Nedic, ‘was not a Nazi quisling’. Nedic was, like Norway’s Vidkun Quisling, a former government minister who helped rule his country on behalf of the Nazis and helped implement the Holocaust. Like their Croat counterparts, Serbian Fascists under Nedic massacred Jews themselves, or rounded them up for the Nazis to kill. In August 1942, Nedic’s Government claimed all Jewish property for Serbs. In autumn 1941, many Serbs rose against the Nedic regime but were crushed by the Germans in alliance with the Serbian royalist Chetniks under Draza Mihailovic. The Chetniks later carried out mass killings of Muslims and Croats in Bosnia, which paralleled the massacres of Serbs by the Ustashe.
Thousands of Serbs, Croats and Muslims fought together against the Fascists. In February 1943, the multinational Partisan Army fought the decisive battle of the war at the Neretva River, near Mostar, against the combined forces of the Germans, Italians, Ustashe and Chetniks. The Croat, Serb and Muslim nations thus have a shared heritage of common struggle. Tintor does no favours to the Serbs by defending those Serbian Fascists who oppressed their own people, or by denigrating the Croats who also suffered under Fascism.
Robinson College, Cambridge
Identicals are identical
Howard Kahane (Letters, 7 October) has, I am afraid, wasted your column inches broadcasting his own confusions and misunderstandings. He announces that Davidson’s anomalous monism violates Leibniz’s law of the indiscernibility of identicals, so that the position is logically contradictory. Pause for a moment to reflect that if this were so the entire philosophical community would have failed for over twenty years to notice a whopping logical error in token identity theories that deny type identity. Then observe that it is Mr Kahane himself who is the logical myope: yes, it does follow from the identity of two mental tokens of type M with two physical tokens that those physical tokens are also of type M; but (I say wearily) it does not follow, by Leibniz’s law or anything else, that those two physical tokens are of the same physical type. Compare: if two red objects are identical with two objects that have shape, then those shaped objects indeed have the same colour; but it does not (of course) follow that they have the same shape. So neither Davidson nor I has forgotten that what you can say of something you can say of anything identical to it.
A small point arising from Michael Wood’s review of Paris and the 19th Century (LRB, 7 October): it wasn’t the demonic Vautrin who said, ‘Paris est Paris, voyez-vous’ in Le Père Goriot, but the more reticent figure of a policeman.
Bruno de Mazières