The smallest details speak the loudest

Letters

Vol. 21 No. 14 · 15 July 1999

From Chris Purnell

As a lawyer working on employment law cases, including race discrimination, at Plumstead Community Law Centre, near where Stephen Lawrence was murdered, I was disturbed by John Upton's lack of knowledge – or apparent lack of knowledge – of all the other murders of ethnic minority people in the area (LRB, 1 July). Rolan Adams was stabbed to death on Bentham Road, Thamesmead on 21 February 1991. Rohit Duggal was stabbed to death on Well Hall Road, Eltham – the road where Lawrence died – on 11 July 1992. On 6 January this year, Rafique Khan was stabbed to death in his shop near the Law Centre. None of these sites is very far away from the HQ of the British National Party on Upper Wickham Lane, Welling. Mr and Mrs Lawrence have done all the citizens of South-East London a favour by making a fuss about their son's murder and not giving up – a point which John Upton appears to have overlooked.

It was relevant of Upton to tell us that Macpherson believes the double jeopardy rule should be removed, but didn't Macpherson also start to tackle the knotty problem of evidence in cases involving race? I would have found the article more helpful if we had been told a bit more about the substantive proposals which Sir William made. My feeling is that Upton isn't as close to the problems of racism and the reality of racial murder as some other lawyers are, and his judgments are a little academic. Points about insufficient evidence come up over and over again in race cases. Delays abound. It is time we tackled both.

Chris Purnell
Orpington, Kent

From Victor Winstone

How many of us, I wonder, finding ourselves in the position of the Lawrence parents, would admit that we had behaved rashly in using whatever device came to hand to bring the murderer of our child to justice, in the knowledge that six years after the event the criminal and his accomplices are still at large, and the police officers whose negligence and incompetence (by their own minimal admission) allowed them to go free are enjoying unconfined retirement and immunity from investigation or prosecution? Didn't the Lawrence parents behave as most of us would have done, if not always consistently or with due regard to the niceties of the legal system?

Victor Winstone
Bideford, Devon

Vol. 21 No. 16 · 19 August 1999

From Norman Cho

John Upton (LRB, 1 July) implies that in arresting the five suspects in the Stephen Lawrence case for the murder, the police were exercising a technical power that it was somehow unfair to use in the absence of conclusive evidence of guilt. In my experience, as someone who has practised criminal law for eight years both as a Crown Prosecutor and a criminal defence solicitor, it is almost unheard of for the police not to arrest anyone they reasonably suspect of having committed a serious offence.

Given the way the police were handling the Lawrence investigation, can anyone be surprised that the Lawrence family's legal representative Imran Khan took it on himself to obtain a statement from Duwayne Brooks? I cannot comment on the strength of the prosecution case, but I can say that it is not unusual for a prosecution to be mounted on the strength of the uncorroborated evidence of one witness alone – in this instance, that of Duwayne Brooks. There have been a number of successful prosecutions of paedophiles on the uncorroborated evidence of their victims, even though the crimes involved took place a decade or more ago. The same is true of rape cases. Nor is it unusual for the defence, the prosecution and the court to take different views of the same evidence.

To suggest that this was a weak case which should not have been taken any further simply because the CPS was of that opinion is to assume that the CPS always gets it right. It doesn't. Between 30 and 50 per cent of prosecutions mounted by the CPS in the Crown Court which result in contested trials end in the acquittal of the person(s) charged. This is not to suggest that the CPS is sloppy or incompetent. Deciding whether there is sufficient evidence in any particular case for a prosecution to succeed is not an exact science. That the judge took the decision to exclude Brooks's identification evidence does not mean that every judge would have made the same decision or that to admit such evidence would have been wrong. Upton accuses Michael Mansfield of attempting to manipulate the rules of evidence in order to admit evidence which should not have been admitted and thus of trying to deny the defendants their rights. But this is the essence of advocacy and takes place every day in the courts.

The McPherson Inquiry was set up as a direct result of the failure of the police to do their job properly. Whether we care for its recommendations or not, it is wrong to characterise it as a kangaroo court.

Norman Cho
London E2

From Richard MacSween

John Upton's attempt to deflate the 'cultural balloon with Stephen Lawrence's image on it' was a myopic exercise in not seeing the political wood for the legalistic trees. Of course there is almost certainly no clear evidence for the prosecution of the five main suspects. Why not? Because the investigation was never carried out in a way likely to get evidence. Why not? Because the Met is institutionally racist – getting that clearly and publicly established is the great service performed by the McPherson Inquiry. Those of us active in campaigns for other black people who have been failed by the police – Michael Menson, Ricky Reel, Christopher Alder – are still waiting for real change.

Richard MacSween
Justice for Christopher Alder Campaign Colne, Lancashire

Vol. 21 No. 17 · 2 September 1999

From John Upton

I must disagree with Norman Cho on nearly every point he raises in response to my article (Letters, 19 August). The police took statements from Duwayne Brooks on numerous occasions. How does Mr Cho suggest that Imran Khan's statement-taking improved the quality of the investigation? Surely it is obvious that a solicitor acting for the family of a victim in a murder (or any other) case should not also act as an adviser to a witness whose evidence is crucial to the conviction of the suspects. Does Mr Cho not think that there is at least the possibility of a conflict of interest arising in these circumstances? I would certainly be interested to know how he explains the existence of evidence suggesting that Imran Khan showed Duwayne Brooks descriptions of Lawrence's attackers given by other witnesses before he attended identification parades and coached him by telephone while he was at those parades.

Mr Cho goes on to remark that it is not unusual for a prosecution case to be mounted on the strength of the uncorroborated evidence of one witness alone – in the Lawrence case that of Duwayne Brooks. It is disappointing, given Mr Cho's experience, that he fails to see that Brooks's evidence falls into a special category of evidence concerning identification. Visual identification has been an area of concern in the law since the misidentification of Alfred Beck by 15 witnesses led to a Committee of Enquiry in 1905 and the establishment of the Court of Criminal Appeal in 1907. The definitive case is R. v. Turnbull and others, which deals directly with the problem of a witness's uncorroborated identification evidence: 'When, in the judgment of the trial judge, the quality of the identifying evidence is poor as, for example, when it depends solely on a fleeting glance or on a longer observation made in difficult conditions' – Duwayne Brooks had the worst of both worlds, a fleeting glance in difficult conditions – 'the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence that goes to support the correctness of the identification.' This appears to be directly at odds with Mr Cho's version of the rules of evidence.

I did not suggest, contrary to what Mr Cho seems to think, that the case against the five suspects was weak because the Crown Prosecution Service were of the opinion it was weak. It is my view that the CPS were correct in identifying it as a weak case, their opinion coinciding with the only correct assessment of the evidence possible. I am grateful to Mr Cho for pointing out that it is not unusual for the court, defence and prosecution to take different views of the same evidence. I hesitate to suggest a name for this phenomenon but perhaps I could put forward the phrase 'criminal trial' to describe it.

Finally, Mr Cho does not say that I have wrongly accused Michael Mansfield of sharp practice in attempting to secure the eventual convictions of the five defendants, merely that it is unfair to level criticism at him because manipulation of the rules of evidence is the essence of advocacy. Here is Paragraph 11.1 of the Bar Code of Conduct: 'Prosecuting Counsel should not attempt to obtain a conviction by all means at his command. He should not regard himself as appearing for a party. He should lay before the court fairly and impartially the whole of the facts that comprise the case for the prosecution and should assist the Court in all matters of law applicable to the case.'

John Upton
London NW1