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Whose Justice?Stephen Sedley
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The Report of the Royal Commission on Criminal Justice 
HMSO, 261 pp., £21.50, July 1993, 0 10 122632 2Show More
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It used to be said in Whitehall that the first job of a royal commission was to lay down a decent cellar. Royal commissions were grand affairs, the Rolls Royces of public deliberation, with a pedigree almost a thousand years long. Some four hundred of them were set up during the 19th century, and almost a hundred and forty in the first three-quarters of this century. But from 1977 until the release of the Birmingham Six in 1991, not one royal commission was appointed. It had become the proclaimed task of government to govern, not to appoint bodies to agonise about what should be done. In a lecture I gave in 1988 I found myself speculating that this magnificent beast might be facing extinction. It is, after all, only the noblest species of quite a large genus which includes Parliamentary select and standing committees (these having the considerable advantage that the government of the day can exercise some control over them), inquiries set up by resolution of both Houses of Parliament (rare creatures, of which the Lynskey Tribunal and the Aberfan Inquiry are examples) and inquiries under specific statutory powers (policing, childcare, medical services). In addition any public body has the inherent power to appoint anyone to inquire into anything on its behalf (prominently at the moment, the Scott Inquiry into the Matrix-Churchill affair). Even the coroner’s inquest is a form of public inquiry. Together, these inquiries form a considerable tranche of constitutional practice, more catholic and deliberative than litigation, less partisan and more judicial than political debate; and because nobody has a right to a public inquiry, they are a flexible instrument of government which can be used to alleviate rather than increase embarrassment. Accordingly, at moments of major concern they have an important constitutional role in reassuring the world that the state is examining the entrails and that all will shortly be well.

The overturning, in 1989, of the convictions of the Guildford Four and the Maguires resulted in the appointment of Sir John May’s inquiry, which was in part stalled by the prosecution of four of the police officers involved in the case. But when in 1991, piling Pelion on Ossa, the Court of Appeal overturned the convictions of the Birmingham Six, the Government was ready the same day with the announcement of a royal commission on criminal justice – the first on any topic for 14 years. ‘We were,’ says the report, ‘unusually, asked by the Home Secretary to report within two years, and this we have done.’ The Commission has inspected the terrain in detail, from the inefficient design of many modern courtrooms – promoting orthopaedic trauma in jurors, the unnerving of witnesses and much else that ought not to happen – to the widely agreed need for a tribunal other than the Home Secretary to consider whether cases ought to be referred back to the Court of Appeal. But what gets obscured along the way is the issue which brought about the Commission’s appointment.

‘The widely publicised miscarriages of justice which have occurred in recent years have created a need to restore public confidence in the criminal justice system,’ the Commission says. ‘That need has not diminished since we were appointed.’ Indeed it has not. To take a random example, in the 12th month of the Royal Commission’s life, February 1992, the Cardiff police reopened their investigation of the murder for which three men were serving life sentences; the Court of Appeal quashed the conviction of Stefan Kiszko for the murder of a child in 1975 on proof that, notwithstanding his confession, he could not have been the killer; an appeal was lodged by the Darvell brothers against their murder conviction at Swansea in 1985, and seven police officers connected with the case were suspended; the Court of Appeal, quashing Jacqueline Fletcher’s conviction for murdering her baby, expressed ‘deep concern’ about her alleged confession. The Commission says that ‘the damage done by the minority of cases in which the system is seen to have failed is out of all proportion to their number’; but this is to make a dangerous assumption as to what is the just proportion between the statistically rare miscarriage of justice and the impact it deserves to have on public confidence. Many people think the fall of one such sparrow enough to shake the edifice.

What is it then that has produced, not the odd falling sparrow but a sky dark with forensic chickens coming home to roost? It is worth reflecting for a moment that, albeit the reference back to the Court of Appeal has in most cases been preceded by a public campaign, it has in each successful case been the Court of Appeal that has finally acknowledged the injustice. There is a paradox here for those who, like Ronan Bennett in his article ‘Criminal Justice’ (LRB, 24 June), perceive ‘a striking homogeneity about the political outlook and identity of those opposed to the Court of Appeal’s verdict: by and large they are the conservative defenders of, and those who have a direct interest in, the institutions of British justice – the judiciary, the police, the political Right.’

To place the judiciary in this way on opposite sides of the same argument seems self-contradictory. Nevertheless it is true that the law, like most other things, has a variety of dynamics and imperatives, some of them at odds with others. Among these are the law’s promise, not of an infallible trial but of a fair one, and the rule that each defendant gets one ride only on the procedural bus. Once the appeal mechanism has been exhausted and the trial been found fair on appeal, there is in principle no means of re-entry into the system. The introduction by statute in 1966 of a power enabling the Home Secretary to compel the Court of Appeal to rehear a case which in legal theory has run its course has been sensed as an almost unconstitutional intrusion of the executive power into the judicial. But it has proved its worth in the small but crucial series of cases which have revealed a procedurally unappealable trial to have been a source of substantive injustice. The law has a self-protective tendency, of course, both because its practitioners think (understandably) that they know more about the system than its journalistic detractors and because like all institutions it is probably over-sensitive to the fear that criticism and self-criticism alike will be damaging. But it also has a profound need – not merely a desire – for the public respect which visible adherence to the principles of justice commands. Although these two imperatives contend continuously, the fact that the latter tendency has found itself repeatedly cheered on to victory in the Court of Appeal is above all because the legal process is a public process.

It is, however, a process which has its problems, because there is no necessary unanimity about what justice requires. If the public has ears, eyes and a voice, they are those of the press, and the press has a variegated record on miscarriages of justice. At its best it has journalists like Paul Foot who have doggedly reinvestigated cases nobody else would listen to. At its worst the press can be a source of prejudice that, as the case of the Taylor sisters powerfully demonstrates, actually promotes miscarriages of justice. Between these poles its activity, both up-market and down-market, is often debatable. For example, in my view it now has a good deal to answer for in relation to the 1991 Criminal Justice Act, an intelligent piece of legislation attempting a principled assault on serious problems of oversentencing and overcrowding, which the mass media have undermined by a campaign of selective reporting and occasional misrepresentation about the scale of unit fines and the relevance of previous convictions. The unit fine system, based on a principle of self-evident fairness, had been piloted and worked well, but when it was passed into law the financial limits were clumsily altered. Contrary to almost universal belief, it has not resulted in four-figure fines for dropping sweet-papers. It deserves revision but not abandonment. As to previous convictions, it has been a fundamental principle for generations that a defendant is sentenced for his or her offence, not for his or her record; which does not mean for a moment, if you think about it, that record is always irrelevant to sentence. The 1991 Criminal Justice Act, by putting the principle and its exceptions in writing, has revealed much what the legislators must have feared – that there is not only wide-spread ignorance of the principle but a great deal of hostility to it. The resignation of a minuscule number of magistrates in protest at the Act was inflated by media coverage at all levels into a bogus crisis, and the already complicated legislation is now being put into reverse, returning the problem of over sentencing to those who have created it.

For the Home Office, too, sentencing is an unremitting low-level headache, and the Royal Commission has had its ear heavily bent on one aspect of it – plea bargaining. In theory, in our system of criminal justice, nobody is penalised for having pleaded not guilty before being convicted; instead there is usually a significant discount on sentence for pleading guilty, which is admittedly not very different. There are therefore obvious objections of principle to this system, but there are also arguments of principle as well as of practicality in its favour, starting with the simple proposition that an offender who owns up is less deserving of retribution than one who doesn’t. One major objection, however, is that the system’s mere existence places a measure of pressure on defendants who have a decent defence and may be innocent. But its attractions as a management tool are enormous, because it can simultaneously reduce the prison population by cutting down sentences on a large scale while reducing the backlog and cost of trials by producing many more pleas of guilty. It will achieve this only if the inducements are substantial – good enough, in fact, to persuade defendants with a tenable defence to throw in the sponge before the seconds leave the ring. Among the guilty acknowledging their guilt would inevitably be innocent people persuaded that the risk of a far heavier sentence than they could obtain on a plea of guilty was not worth running.

Lord Runciman’s commission acknowledges this openly, but it wants to lift part of the block imposed two decades ago by the Court of Appeal on the old system of horse-trading and to allow the judge to tell counsel, on the record but in private, what is the worst that will happen if there is a plea of guilty. This is described as a ‘sentencing canvass’, but it includes the ever-present possibility of an offer which can’t be refused. In the ordinary way a defendant who wants to know the odds asks his or her counsel, whose job it is to know the tariff. Why then go behind the tipster and get it from the horse’s mouth? Is the reason that, with the judge involved, the genuineness of the carrot can be established, and its contrast with the stick be made obvious? I put it in this way because barristers of my generation regularly saw this happening until the Court of Appeal stopped it, and pretty unseemly it sometimes was. One particularly undesirable out-come was that people who were charged with quite serious crimes could sometimes, where the evidence was weak, induce the court to let them off very lightly indeed in return for an admission of guilt. Many lawyers still think that if the case is fraught with difficulties the right course is to let a jury hear it out and decide whether it is proved at all. Part of the logic of plea-bargaining and sentence-canvassing alike is that punishment becomes proportionate not to the gravity of the crime but to the strength of the case, a principle which, if it is to be defended, needs first to be articulated.

Another of the inarticulate premises of this kind of proposal, in some quarters at any rate, is a distrust of the jury system. You do not have always to agree with the verdicts juries return in order to disagree profoundly with this distrust. The jury system has the obvious if abstract commendation that it is an injection of democracy into an otherwise arcane and élitist process; but it is far more than this. In the overwhelming majority of cases the collective sense of twelve lay people not only steers them to a discernibly realistic conclusion; it also provides the mutuality and moral confidence which make possible both the tough decisions and the humane solutions that might well make a solitary arbiter hesitate and draw back. Even so there remain things which the courts have learned by bitter experience and of which juries need to be told because they are not readily apparent either to conventional wisdom or to common sense and experience. High among them is the fact that there are people who are driven by a variety of circumstances to confess to things they have not done. We still know far too little about false confession syndromes, and what we do know comes from psychologists and not lawyers; but cases like Judith Ward’s and Stefan Kiszko’s are a memento mori which the Royal Commission does not in my view take seriously enough. It simply recommends a powerful warning from the judge that a confession may be untrue, and why it may be. The Law Commission, however, had already pointed out (and the Runciman Commission quotes it) that to tell a jury why it is dangerous to convict on an uncorroborated confession and then to tell them that they can nevertheless do so, is irrational. How can a conviction dangerously arrived at be safe? The Royal Commission is right to be deterred from insisting on corroboration by the Scottish experience that this leads to a systematic dilution of the standard of corroborative evidence. But there is another solution, to which the commission devotes no space, and that is to make a confession admissible only if it corroborates other evidence independently capable of establishing guilt. The pain of such forensic self-denial is acute when the investigators have in their hands a complete admission of guilt, but it has to be set against the system’s and the individual’s agony if years later the confession turns out to be false or untrustworthy.

Beneath these and other problems of the criminal justice system, and beyond the Royal Commission’s response to them, lies one of the most troublesome aspects of human psychology – the desire for certitude. I do not mean by this the search for truth, but the desire for the truth to be what the seeker supposes. The exertion of pressure to confess is not unnatural, when an investigation has assembled a body of data and now has a suspect to whom to try to relate it. To resist the temptation to apply such pressure requires both probity and regulation. And it is not only investigating police officers who are prey to it. One of the features of recent miscarriage of justice cases has been the abuse of scientific procedures to prove a point rather than to test it. The Royal Commission devotes a chapter to forensic science and expert evidence, and it sees the problem: an adversarial process of proof (the jury’s task, it has been said, is simply to answer the question ‘Howzat?’) has co-opted a quite alien intellectual process of inquiry and examination. Anybody who has seen a competent and intellectually honest scientist first led by counsel to recount as much of his or her findings as will help that side’s case, and then attacked by cross-examining counsel for failing to offer certainties of a kind in which scientific method does not deal, will instantly understand why some scientists refuse to go near a court of law and why others, willingly or unwillingly, find themselves repeatedly appearing in the witness-box not as inquirers after fact but as advocates for a point of view.

I do not know the solution to this problem; nor does the Royal Commission, beyond proposing that experts should have a chance at the end of their testimony to tell the judge, and if appropriate the jury, anything material which counsel have either deliberately or through ignorance left unasked. I suspect that many experts – those who are not professional expert witnesses – would like to tell the court that to try to capture as certainties the products of an intellectual method that thrives on doubt is a crime in itself. Few expert witnesses experience the luxury enjoyed by Richard Hoggart in the Lady Chatterley trial of being able to defend a considered critical evaluation against a hail of middle-class morality. But it is too late to protest: scientists are now regular foot-soldiers in the army of the law, and the conscripts among them are becoming outnumbered by the volunteers as the gap between a day’s expert witness fee and a week’s academic or professional salary grows. Excluding experts is certainly not the solution.

The Royal Commission rightly welcomes the increased acceptance by the courts of expert evidence about the mental and psychological capacities of defendants who have confessed. Although this is in my view the principal area in which the adversarial system gets a deservedly bad name, I agree with the Royal Commission’s view that a change to an inquisitorial system would create worse injustices than it would eliminate:

Our reason for not recommending a change to an inquisitorial system as such is not simply fear of the consequences of an unsuccessful cultural transplant. It is also that we ourselves doubt whether the fusion of the functions of investigation and prosecution, and the direct involvement of judges in both, are more likely to serve the interests of justice than a system in which the roles of police, prosecutors and judges are as far as possible kept separate and the judge who is responsible for the conduct of the trial is the arbiter of law but not of fact.

This approaches a fundamental tension in our system: given the universal obligation on the state as prosecutor to prove the individual’s guilt, it first rests on the state as investigator to satisfy itself that such proof exists; but having so satisfied itself, it must be made to furnish the accused with the means of casting doubt on that proof. I think it is right to say that every one of the major miscarriages of justice of the last few years has come from the single-minded pursuit by investigators of a hypothesis of individual guilt to the exclusion of all pointers away from it. The Royal Commission puts it crisply as ‘the danger that the police may jump too quickly to the conclusion that they have arrested the offender’, but it is rather more than that. To involve magistrates or judges in the investigative process would carry the real risk of making them party to the case for the prosecution wherever the balance of evidence came to favour the laying of charges.

The experience of all barristers, I think, is that presenting one side of a case persuades them of its correctness considerably more often than they can persuade a court of it. To become parti pris in this way is a normal aspect of human psychology, but it warns against the equation of professionalism with objectivity, whether in law or in science. Although they have not escaped without blame, prosecuting solicitors and counsel have since 1981 had to follow guidelines laid down by the Attorney General which, with exceptions more favoured by the Royal Commission than by some judges, afford the defence a sight of all relevant material gathered but not used by the prosecution. The guidelines are necessary precisely in order to govern the otherwise inexorable temptation, to which lawyers are no more immune than anyone else, to keep the bad parts of a case out of sight. While police procedure as a rule involves initially garnering everything capable of having a bearing on the crime, whomever it implicates or exculpates, it is at two key points of the subsequent investigation, and before the evidence comes into the hands of the lawyers, that the critical pressure to distort or suppress arises: the scientific evaluation of data and the interviewing of the suspect. It is not merely an intellectual or subjective pressure; it is fed by a culture which values the esteem of peers and superiors, and in major cases by a shared sense of outrage which the investigators may experience acutely. If what then reaches the prosecuting lawyers has been distorted at the investigative stage, the damage is largely done – disclosure can remedy little or nothing.

This is why the problems of scientific evidence and confessions lie at the core of the Royal Commission’s remit. The first it addresses in detail, and I do not criticise it for failing to solve the intractable questions of scientific proof that I have touched on. It calls for an equality of arms between prosecution and defence in terms of laboratory and research resources; and it is perhaps then for the judges to do what can be done to discourage experts from becoming advocates in the witness-box. The Royal Commission suggests that judges should be more vigilant in stopping bullying or hectoring cross-examinations, which I believe play a part in driving expert witnesses into scientifically untenable positions. With the growth of forensic sciences, however, there may now be a need for experts’ own professional bodies, in consultation with the Bar Council and Law Society, to develop standards and codes of conduct for the giving of evidence, to support those of their members who stand by them and to discipline those who don’t. This is a field in which the legal system cannot do everything.

As to confessions, the Court of Appeal in recent times has had to overturn convictions based on confessions made in audibly oppressive interviews conducted in the presence of a defence solicitor, or interviews conducted in breach of the Codes made under the Police and Criminal Evidence Act but nevertheless allowed in evidence by the trial judge, or simply admitting crimes to which no objective evidence satisfactorily linked the suspect. The Royal Commission calls for better training for solicitors, and for the videotaping of interviews. But the majority of the Commissioners take a stance on breaches of fair procedure that has provoked an important dissent from Professor Michael Zander, supported by Yve Newbold. The majority view is that in cases in which the pre-trial procedures have been improperly conducted, it is only where the Court of Appeal thinks the eventual conviction unsafe that an appeal should be allowed. This means that the Court of Appeal, which has seen and heard none of the witnesses, must form its own view of the defendant’s guilt. Zander takes the more fundamental view that it is unsafe for a system of justice to tolerate seriously tainted evidence of any description, even if, shorn of it, the prosecution case might still have stood up. He proposes that the reception of such evidence – for example, a confession obtained by oppression – should be grounds for quashing a conviction even where there was other evidence capable of establishing guilt. The majority call Zander’s view illogical. They argue, justifiably, that even though Zander is dealing with appeals following trials where seriously tainted evidence has been admitted, it ought logically to follow from his argument that the trial judge likewise must halt a trial where tainted evidence is tendered – even if the judge is prepared to exclude it, and even if there is enough untainted evidence to make a case. It may be said that this is unacceptable (which the majority also call it), but it is not illogical. Zander puts it like this:

The moral foundation of the criminal justice system requires that if the prosecution has employed foul means the defendant must go free even though he is plainly guilty. 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 ... At the heart of the criminal justice system there is a fundamental principle that the process itself must have integrity ... The integrity of the criminal justice system is a higher objective than the conviction of any individual.

This may strike the reader as being more lofty than realistic, and it certainly chimes poorly with the longstanding doctrine of English law that if evidence is relevant, it doesn’t matter how improperly it was obtained. Serendipitously, however, three weeks after the Commissioners signed their report and Zander and Newbold their dissent, and while both were in the press, the Law Lords handed down a landmark judgment. They held that if a defendant has been brought within the jurisdiction of the United Kingdom courts by unlawful means (for example, has been kidnapped rather than extradited), the courts have inherent power to halt the case without inquiring further into it. This is what Lord Griffiths said:

If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law ... I have no doubt that the judiciary should accept this responsibility in the field of criminal law. The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended. So it should be in the field of criminal law, and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act on it.

The House of Lords adopted the reasoning of the dissenting minority in the United States Supreme Court, which by a 6-3 majority in 1974 had opted to overlook state malpractice. Lord Bridge said:

There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself ... To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view ... Since the prosecution could never have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted.

If a wind of change is blowing in our constitutional jurisprudence, this is a gust of some force. Perhaps the real difference between the majority and the minority on the Royal Commission is that the minority perceive the issue of improperly obtained or presented evidence, which has lain at the heart of so many of the recent miscarriages of justice, as a constitutional issue going beyond the guilt or innocence of an accused person, while the majority view it as the curate viewed his egg – if the conviction is good in parts, the taint can be overlooked. The House of Lords, opting for the very form of reasoning dismissed by the majority of the Royal Commission as illogical, appears for the first time to be ready to strike at the root of an unconstitutionally brought prosecution without regard to the question of guilt. The esteem in which the law comes to be held in the next generation may well depend on whether such constitutionalism, rather than the Royal Commission’s legalism, is allowed to develop as the dominant logic of the law.

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Vol. 15 No. 19 · 7 October 1993

In the week that David Cooper died, after a long, painful and unsuccessful struggle to clear his name, I read Stephen Sedley’s comments on the Court of Appeal with bewilderment and frustration (LRB, 23 September). While Sedley rightly criticises aspects of the seriously deficient Runciman Report on criminal justice, he suggests that the Court of Appeal retains some credibility: ‘It is worth reflecting for a moment that, albeit the reference back to the Court of Appeal has in most cases been preceded by a public campaign, it has in each successful case been the Court of Appeal that has finally acknowledged the injustice.’

Should any legitimate claim for the Court’s merits be based on the self-selecting category of ‘successful cases’? David Cooper’s was an unsuccessful case. He went to prison with Michael McMahon for the 1969 Luton Post Office Murder. Ludovic Kennedy has described the evidence against the two as ‘wicked beyond belief’, depending as it did on a proven liar and criminal and a policeman later jailed for corruption. The Court of Appeal had two opportunities to put matters right, in 1975 and 1977. Instead, in the words of Cooper’s lawyer, the Court ‘ignored, marginalised, contradicted and distorted more than twenty compelling areas of evidence that had surfaced since his conviction’. Eventually, and most unusually, the Home Secretary had to step in, override the Court and free the men, though without clearing their names.

Another ‘unsuccessful case’ about which the Court of Appeal should hang its head in shame is that of the Carl Bridgewater defendants (for whom Sedley has appeared). When Lord Lane, the former Lord Chief Justice, reviewed the case in 1981 he went through the sophistry familiar from Cooper and McMahon and so many other hearings, and upheld the convictions without even allowing a full hearing. On that occasion, the Court, as it has so often done in the past and continues to do today, behaved as though it were the jury, a role for which it has no authority.

I do not accept Sedley’s argument that the Court’s tendency to adhere ‘to the principles of justice’ has ‘found itself cheered on to victory in the Court of Appeal’ in miscarriage of justice cases. On the contrary, the Court has repeatedly proved itself an obstacle to justice: the innocent men and women released after years of incarceration were liberated not because of but in spite of the Court. In these ‘successful cases’ the Court of Appeal gave way only after its collective arm was twisted up its unyielding back. I therefore see nothing paradoxical in the passage Sedley quotes from my article on the Guildford Four in the LRB of 24 June.

The truth is that even in the ‘successful cases’ the Court has shown marked reluctance to believe appellants’ claims. In 1977 the Court rejected the Guildford Four’s application for leave to appeal, though the judges had the benefit of hearing from the real bombers. In January 1988 Lord Lane turned down the appeal of the Birmingham Six in scathing terms after a lengthy hearing in which defence lawyers adduced evidence of police wrong-doing and scientific incompetence. In his judgment, Lane said that the more he listened to the evidence, the more he became convinced the Six were guilty. That the Six were eventually freed owes nothing to the Court of Appeal, beyond the formalities, and everything to the men themselves, their lawyers, families and supporters. Let it not be forgotten that the Court’s ‘profound need … for the public respect’ that ‘visible adherence to the principles of justice’ commands took 14 years to manifest itself in the case of the Guildford Four; 16 in the Birmingham case; 17 in that of Judith Ward. When the need for public respect became unendurable the Court of Appeal did not ‘acknowledge the injustice’, as Sedley states. On the contrary. When Lord Lane freed the Guildford Four he did so with ill-grace, uttering not one word of apology and referring only to ‘this unhappy matter’.

Lord Taylor has now replaced Lord Lane as Lord Chief Justice. Is this a good thing? Taylor was one of the counsel for the prosecution in the trial of Judith Ward, whose conviction was largely due to the failure of the police, the prosecution and the DPP to disclose evidence helpful to the defence. Then there is the Stefan Kiszko case, to which Sedley also refers. True, the Court of Appeal freed Kiszko – after many years in prison – but the evidence used to quash his conviction had been available at the time of the trial. It was not heard because it was withheld from the defence and the jury. Lord Taylor prosecuted Kiszko.

Since taking over from Lane, Taylor has managed to reverse the progressive decision on compulsory disclosure of evidence in the Ward case by his recent ruling in Rowe and others (the so-called M25 Case). As a result of Taylor’s ruling, the prosecution can now go to court – in the defence’s absence – to apply for evidence to be withheld from the defendants and their lawyers. As so many miscarriage of justice cases have arisen precisely because of non-disclosure, Taylor’s decision can only be regarded as dangerous.

Ronan Bennett
London E8

Vol. 15 No. 20 · 21 October 1993

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.

David Herbert
London WC1

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.

R.W. Farrington
London SW1

Vol. 16 No. 24 · 22 December 1994

I believe that W.G. Runciman (LRB, 10 November) has misunderstood why, reviewing the Report of his Royal Commission on Criminal Justice in the LRB (LRB, 23 September 1993), I offered support for the minority view on what he calls the fruit of the poisoned tree. This is the problem of what is to be done by the courts when a case comes before them in which the prosecution has been guilty of malpractice at one stage or another, a problem which he now dismisses with a simple illustration: a policeman thumps the accused in a vain attempt to extract a confession – should the whole prosecution be stopped?

Of course, as he says, if evidence has been improperly obtained, the courts have adequate powers to knock it out, and the prosecution must then stand or (if it is a critical piece of evidence) fall without it. But my argument is not, as Garry Runciman suggests, that in such cases the whole prosecution should instead automatically fall as a kind of penalty for playing offside whether the attempt to secure evidence by oppression has succeeded or – as in his example – failed. It is that there can be forms of malpractice which are not manifested in elements of evidence at all but without which the prosecution could not have been brought. In the face of these the power to exclude improperly obtained evidence has no bearing.

The case I mentioned in my review of the Report, that of a man who alleged that he had been kidnapped by the South African authorities in order to be handed over to the jurisdiction of the English courts, had at that stage been decided on principle by the House of Lords upon its assumed facts. The court has now heard the evidence and has established the factuality of the allegations. There is nothing that the court of trial could have done on the basis of them to exclude any evidence, for the malpractice lay not in the obtaining of evidence but in the means by which the accused had been brought before the courts of this country. The critical point in the House of Lords’ reasoning was that there was a simple choice: either to let the prosecution go ahead on what was perfectly admissible evidence, or to hold that, since there could have been no prosecution in the first place but for the unconstitutional acts of the authorities, the legal system would not endorse such acts by allowing the prosecution to proceed at all.

This is a limited doctrine, perhaps more limited than the minority’s position, but it is the one I support. Thus where, as in Garry Runciman’s illustration, the malpractice has not infected the prosecution, there is no poisoned fruit. Where pieces of fruit are poisoned, they can, as he suggests, be discarded. But in the rare case where the tree itself is poisoned, the Commission’s minority now has the support of the House of Lords in proposing that the only principled option is to cut the tree down.

Stephen Sedley
Royal Courts of Justice

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