Keep your nose clean

Letters

Vol. 23 No. 13 · 5 July 2001

From Adrian Bowyer

Writing about Labour's proposal in its Criminal Justice White Paper that defendants' past convictions should be revealed to juries, John Upton (LRB, 21 June) fails to mention the Jury Observation Fallacy. According to this, if a jury finds someone not guilty on the evidence presented in court – in other words, without taking previous convictions into account – the fact that this defendant has previous convictions for similar crimes usually makes it more, not less, probable that he or she is indeed innocent of this particular crime. This is because, when a crime is committed, the police quite reasonably go out and feel the collars of those with previous convictions for similar crimes. They therefore tend to fish in a highly non-representative pool, rather than picking suspects from the general population. This tips the probabilities in the defendant's favour to an extent that is not outweighed by the likelihood of a certain fraction of past offenders becoming recidivists. If the defendant is considered innocent on the facts of the case, then his past convictions should be seen as evidence not so much of guilt as of the failures of police procedure.

Adrian Bowyer
University of Bath

From John Stow

In touching on the Government's proposals, as outlined in their White Paper, concerning the use of expert assessors, rather than empanelled jurors, to decide cases such as serious fraud, John Upton is quick to warn against their dangers but strangely reluctant to spell out their advantages. He refers to 'the complexity of fact and law that arises in such trials' as though complexity of fact and complexity of law were somehow on a par. To the average member of a jury I guess the articles of the law involved in a trial will always be complex, and imperfectly understood however adept the judge may be in spelling them out. Complexity of fact is another matter, since the facts of a case are what a jury is at least presumed capable of understanding. In a case of financial malfeasance of the kind so regularly reported – and simplified – in the media, there must be little or no chance of a jury, or any significant proportion of it, understanding the details of the alleged offence. Quite apart from the technicalities involved, the sheer quantity of evidence, as frequently made visible these days by news film of box after box of it being portered into the courts, can only militate against a lay person following what has gone on. (Should a radical government not also be planning to reduce the quantity of admissible evidence in trials, and thus the soporific length of the proceedings?)

Expert assessors are used in other countries without apparently resulting in injustice and will surely be introduced here, if not immediately then eventually. Moreover, I don't see why experts chosen from the specific field of an offence – bankers in Upton's example – should be disbarred, as if they were bound to be prejudiced. I see no obvious reason why they should be.

John Stow
Ipswich

From Chris Purnell

Section 78 of the Police and Criminal Evidence Act 1984 may well have made it more difficult to frame a suspect, as John Upton claims, but it is not really true that it 'makes illegally obtained evidence … inadmissible'. Relevant but illegally obtained evidence other than confessions – for example, documents and objects – may still be admitted at the discretion of the judge. The words of Justice Crompton in R. v. Leatham (1861) – 'It matters not how you get it; if you steal it even, it would be admissible in evidence' – still hold good.

Upton believes that the White Paper's call for the codification of the criminal law is an example of the Government's desire to 'limit the discretionary powers of the judiciary'. The Police and Criminal Evidence Act 1984 was itself in some respects a piece of codification. Before it, confessions obtained by oppression and unlawful inducements were inadmissible because of judge-made law. With the Police and Criminal Evidence Act, this was incorporated into statute. It would surely be a good thing to have the law precisely stated in one place rather than in a mass of case law. A 'core criminal code' would help make the law accessible to the public, which Dicey regarded as one of the key features of the rule of law.

Chris Purnell
Pratt’s Bottom, Kent

Vol. 23 No. 14 · 19 July 2001

From P. Le Pelley

In his discussion of the Government's criminal justice proposals (LRB, 21 June), John Upton seems to belittle the need for a comprehensive criminal code. All the Constitutions written since the war for Commonwealth countries contain these two provisions: 1. that no person shall be convicted of a criminal offence unless that offence is defined, and the penalty therefore is prescribed in a written law and 2. that no person who shows that he has been tried for a criminal offence and either convicted or acquitted shall again be tried for that offence. Does Britain deserve anything less?

P. Le Pelley
Nairobi