Keep your nose clean
- Criminal Justice: The Way Ahead, CM 5704
Stationery Office, 139 pp, £15.70, February 2001
The Labour Government is about to embark in its second term on a radical and repressive programme of legal reform. If the proposals contained in the White Paper Criminal Justice: The Way Ahead are implemented, the Government will have succeeded in dismantling some of the fundamental safeguards which exist to protect defendants in the criminal justice system. Labour’s view seems to be that civil liberties for those accused of crime are unimportant – if you keep your nose clean you don’t need to worry. This is a posture first struck by the Home Secretaries of the Thatcher years. Anyone who thinks that they voted for a party that cares about civil rights is in for a shock.
A large number of proposals in the White Paper are only sketched out. The Government is awaiting the publication of a report by Sir Robin Auld, showing the results of his comprehensive review of the criminal courts, before flesh is put on the bones of the recommendations. As so often with New Labour, presentation seems to be thought as important as content. The White Paper is full of impressive diagrams, charts and text boxes and is marbled with jargon such as ‘justice gap’, ‘joined-up government’ and an exhortation to the police and the Crown Prosecution Service to ‘refocus on their core business’. There’s even a nod in the direction of the New Age in the perception of a need for ‘holistic solutions’ to achieve ‘a society at one with itself’. Throughout the document, there are abbreviations, acronyms and catchphrases; it reads like a management consultancy project summary.
It is in Part 3 of the White Paper, entitled ‘Modernising the Criminal Justice System’, that the Government’s intentions are most clearly set out. Part 3 begins with an appraisal of the Crown Prosecution Service, the body that brings prosecutions on behalf of the state, which has recently also been the subject of a review by Sir Iain Glidewell. Before the mid-1980s, criminal investigation was the domain solely of the police service, whose actions were not subject to any external review. It is now accepted that the ‘core business’ of significant elements of the police throughout the 1950s, 1960s and 1970s was the obtaining of wrongful convictions through the planting or suppression of evidence and the abuse of suspects. Following the recommendations of the Royal Commission on Criminal Procedure, the 1985 Prosecution of Offenders Act established the CPS in order to separate responsibilities for the investigation and prosecution of crimes.
The Way Ahead seeks to abolish a ‘justice gap’, as it is described, between the CPS and enforcement officers – although this gap is one that should at all costs be preserved. This separation of powers enables CPS lawyers to evaluate the viability of a proposed prosecution objectively, without fear of undue pressure from the police. The Glidewell Review recommended that the police and CPS develop joint units, to be known as Criminal Justice Units, to ‘maximise efficiency and effectiveness’. The White Paper approves of this arrangement, which has already been implemented in some parts of the country, and lists the advantages it will bring. They include: ‘Less time spent transporting files between offices’ and ‘cost savings – reducing duplication and overheads’. ‘In some areas,’ according to the White Paper, ‘this means CPS and police sharing office accommodation for the first time.’ The CPS is also to explore with the police ways to ‘develop a nationally consistent approach to the provision of earlier and better pre-charge assistance to the police (including out of hours)’. It’s difficult to see how proposals such as these do not effectively reunite investigatory and prosecutorial functions. This, we’re told, will help to ‘increase the number of prosecutions and reduce the number of cases that fail’. The Guildford Four, Judith Ward and the numerous other recipients of West Midlands Serious Crime Squad-style justice are among those who benefited from the attentions of an all-powerful police force able to bring prosecutions without hindrance from a truly independent agency empowered to check on the legality of their case. In the light of these new proposals we can surely look forward to other such cases.
Vol. 23 No. 13 · 5 July 2001
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.
University of Bath
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.
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.
Pratt’s Bottom, Kent
Vol. 23 No. 14 · 19 July 2001
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