Some Afterthoughts on the Royal Commission on Criminal Justice in England and Wales
When, in 1991, I was asked to chair the Royal Commission established in the immediate aftermath of the quashing of the convictions of the Birmingham Six, I was just as surprised as were the media, who on the day it was announced were reduced to projecting my passport photograph on the TV screen for the news programme which, as it happened, I watched in my room in a lodging house in Belfast, where I had just given a long-arranged lecture at the Queen’s University on a totally different sociological topic.
After panting up an almost vertical learning curve for a year or so, I was satisfied that I could understand both the arguments being put to the Commission and the agendas, hidden or not so hidden, of those who were putting them. But I am surprised to have forgotten so effortlessly what cost so much effort to learn. If I were examined today about Section 10 of the Criminal Justice Act 1967 or Section 24 of the Criminal Justice Act 1988, I should fall flat on my face. Since the Commission’s Report was published, I have often asked myself what I would like to change in it in the light of the comments which it has attracted. But I have not attempted anything approaching systematic coverage of either the more or the less academic literature where our recommendations may have been discussed.
The system of criminal justice, by which I understand not only the procedures for dealing with suspects, defendants, and appellants, but also the principles on which those procedures rest, is a topic on which feelings can and often do run high. The way in which the Commission interpreted its remit was pragmatic: we saw ourselves as having been asked to make recommendations which would, if enacted, reduce the chances of innocent defendants being convicted, and defendants guilty beyond reasonable doubt being acquitted, in trials for offences sufficiently serious to go before a jury. But pragmatism is, of course, an ideology of its own. We were well aware that our approach would be disapproved of by those who think that Royal Commission reports should be vehicles for the higher academic thought. We were also well aware that it would be challenged by libertarians and draconians alike, both of whom would clamour for a ‘Radical overhaul’ (by which they would of course mean totally different things). I don’t want to imply either that this awareness constitutes a self-evident argument in our favour or that we set out to find a compromise between two opposed extremes. Admittedly, I would have been as worried if all our recommendations had been unreservedly welcomed by the Police Federation as if they had all been unreservedly welcomed by Liberty. But lobbyists are not to be discounted just because they are lobbyists. The libertarians are right to be as concerned as they are about police malpractice, just as the draconians are right to be as concerned as they are about intimidation of witnesses.
On the other hand, I did underestimate the degree to which our deliberately low-faluting concentration on helping jurors to get it right would be viewed as controversial. I was quite prepared for us to be regarded from the far Right as a bunch of wet pinkos unwilling to acknowledge that the principles of the burden and standard of proof are nothing more than a criminal’s charter. I was equally prepared for us to be regarded from the far Left as a bunch of Establishment lackeys unwilling to acknowledge that the criminal justice system is a device for the oppression of the proletariat by the capitalist state. But I was not prepared for the intensity of disagreement between the ideologists of ‘due process’ on one side and of ‘crime control’ on the other.
To the ideologists of ‘due process’, any person charged with a criminal offence is entitled to the most skilful defence that can be mounted against the charge. The function of the system is not, for them, to establish the truth, but to ensure that the Crown will secure a conviction if and only if prosecuting counsel can succeed in dispelling any doubt which defence counsel can manage to instil in the jury’s minds. They hold that the resources in the hands of the state, and the pressure on police and prosecutors to be seen to be succeeding in apprehending and punishing the perpetrators of crime, are such that every possible help should be given to the defence to prevent the conviction of suspects against whom there is not a watertight case. In the words of a celebrated American defence attorney, Gerald Shargel, talking to the New Yorker: ‘The guy can be guilty as hell, but if I win an acquittal it means there was something infirm or wrong with the prosecution’s case, and they weren’t entitled to the conviction.’ On their view, the acquittal even of hardened and violent criminals whose liberty puts innocent people at risk is a price which society ought to be prepared to pay to ensure that no defendant is convicted if the defence can sustain an imputation of witness unreliability, police misconduct, prosecution carelessness, or judicial bias.
To the ideologists of ‘crime control’, on the other hand, it should be the function of the system to ensure that all the facts which are relevant to the offence and the presumptive offender are before the court, including the defendant’s previous convictions, and that the defence is strictly prevented from exploiting technical loopholes, playing for time, holding back a surprise defence, or tripping up honest but unsophisticated witnesses in the name of ‘duty to the client’. To them, it is intolerable that the interests of suspects and defendants should be preferred over the interests of victims and witnesses and that known criminals should be returned to the community to commit further crimes because jurors fail to see through lies which could have been nailed under less restrictive rules of evidence and procedure. On their view, the risk that, despite the safeguards now in place, a defendant may possibly be convicted of an offence which was in fact committed by someone else is a price which society ought to be prepared to pay to ensure that experienced malefactors and clever lawyers cannot make a mockery of the whole process on which the protection of law-abiding citizens against serious crime depends.
Nothing that might have been said in the Commission’s report was ever going to reconcile these two sincerely held, internally coherent, and mutually irreconcilable viewpoints. But we could have said something more than we did about the principles of the burden and standard of proof, if only to make clear our commitment to upholding the distinction between how judges are supposed to decide civil cases and juries to decide criminal ones. We could have spelled out more explicitly our view of defendants’ basic rights; and if we had, we could not have done better than in a formulation I take from Professor Ronald Dworkin in an essay in memory of Sir Rupert Cross: ‘people drawn into the criminal process do not have a right to the most accurate possible procedures for testing the charges against them. But they do have two other genuine rights: the right to procedures that put a proper value on moral harm in the calculations that fix the risk of injustice that they will run, and the related and practically more important right to equal treatment with respect to that evaluation.’ And we could have elucidated, as I shall now try very briefly to do, the issues of principle which arise on four particular topics on which controversy was, and will continue to be, inevitable.
The first of these topics is guilty pleas. The Commission took the view that there is nothing wrong in principle with encouraging a defendant who has committed the offence with which he or she is charged to plead guilty. The decision should only be taken with legal advice after the prosecution case has been fully disclosed, and it goes without saying that nobody who is innocent should plead guilty. But we saw no injustice in making it known to the defendant that an early plea of guilty will attract a reduced sentence, or in allowing the prosecution and defence to discuss between themselves the charge to which the defendant might be willing to plead guilty, or in giving the defendant the right to instruct counsel to ask a judge in chambers what sentence he or she might expect on certain explicit assumptions. Of course, the defendant must be properly advised (and if not, that is a failing in the system of a different kind). But even then, the ideologists of due process will have none of it. To them, every defendant, whether or not he or she did commit the offence, is entitled to the proverbial day in court, and should be advised to take it without thereby risking a higher sentence if found guilty. To the ideologists of crime control, this is absurd: if a person is guilty of the offence with which he or she is charged, that person ought not to be encouraged to contest the case on an off-chance that an indulgent jury may be tempted into mistakenly letting him or her walk free.
For myself, I share the doubts of those who are reluctant to interpret the presumption of innocence in such a way as to imply that any guilty plea reveals a defect in the system. But where I, together with eight of my fellow-Commissioners, part company with the ideologists of crime control is on the threat of adverse comment at trial where the defendant has failed to answer police questions. The principle here is not (to my mind) a right against self-incrimination, since numerous well-justified convictions of defendants whose guilt is beyond reasonable doubt depend on these defendants having in some sense or other given themselves away. It is rather the so-called right of silence. No suspect should be required to give his or her version of events to the police until after knowing exactly what is the alleged offence and after receiving considered legal advice; and I am afraid that the measures now passed into law against the Commission’s advice will increase the risk of wrongful convictions without increasing the probability of securing convictions of so-called professionals which would not in any case have been secured on the strength of the evidence put before the jury by the Crown. There is, as I am well aware, much more which could be said about the right of silence than this, and much has indeed been said in the collection of papers edited by David Morgan and Geoffrey Stephenson under the title Suspicion and Silence.[*] But since my disagreement with the Lord Chief Justice is on record in Hansard, I leave it there for now.
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[*] Blackstone Press, 168 pp., £16.95, 8 July, 1 85431 380 0.