Vol. 16 No. 21 · 10 November 1994

Some Afterthoughts on the Royal Commission on Criminal Justice in England and Wales

W.G. Runciman

7319 words

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.

The second topic, which connects to the first through the notion of fairness in how evidence is obtained, is the ‘fruit of the poisoned tree’. There is no disagreement that a conviction should not be obtained if the suspect has been hung by the heels out of the station window until he tells the police where he hid the murder weapon with his fingerprints on it, even if the prosecution will fail unless the weapon is found. But the Commission took the view that the way to deal with this sort of thing is through the exclusionary provisions of the Police and Criminal Evidence Act. This means that it is for the judge to decide at trial what will or will not come before the jury, and representation by the defence in such a case will be heard in the jury’s absence. But two members of the Commission (subsequently supported in the London Review by Judge Sedley QC) wished to go further. They held, which the rest of us did not, that the Court of Appeal should quash any conviction where the defence is subsequently able to prove ‘foul means’ on the part of the prosecution prior to trial, even if the evidence on which the jury relied was fairly obtained. The principle to which they appealed was that ‘the integrity of the criminal justice system is a higher objective than the conviction of any individual’ – a sentiment to which, in Dr Johnson’s phrase, every bosom returns an echo, but whose value depends entirely on what ‘integrity’ is taken to mean in practice.

Consider the following hypothetical example. After a lengthy police investigation, the Barsetshire Ripper is convicted on the basis of overwhelming forensic and eyewitness testimony. Subsequently, the defence is able to prove that the convicted man, while he was being held in custody in Barchester Police Station, received a clandestine visit in his cell from a detective inspector who struck him in a wholly unsuccessful attempt to extract a confession from him. As I read the minority’s dissent, the Court of Appeal would, if satisfied that this incident had taken place, be bound to set him free. But I have to say that to me this is taking the ideology of due process too far. If that is the, or a, conclusion entailed by appeal to the principle of integrity, there is something wrong with the principle. If, however, ‘integrity’ entails only that the conviction should be quashed if, say, the assault in the cell leads to the tracing of a witness whose testimony the Court of Appeal thinks might have caused the jury to convict, then it translates without remainder into the ‘fair evidence’ principle under which that witness’s testimony should not have been before the jury in the court of first instance at all.

The third topic is the one which I, and I think all of my fellow-Commissioners, found the most intellectually testing – the grounds of appeal. We were agreed about the ‘ineptitude of the governing statute’ – to borrow a phrase from the article by Richard Buxton QC which we cited in the Report. Some of us were very attracted to the Scottish regime, in which a single broad ground gives the Court of Appeal sufficient flexibility to quash any conviction where it believes that there was or might have been a miscarriage of justice. But others of us felt that to mop up all grounds of appeal under a single heading would be to blur the fundamental difference which the statute is right to try to accommodate between evidential and procedural miscarriages of justice. As things are, it is clear that the Court of Appeal sometimes fastens on a procedural defect as a means to legitimate an evidential unease; and there is reason for saying that the statute more or less requires it to do so. But ought not a revised statute to spell out unambiguously, rather than conflate, the two separate criteria to which the Court is to have regard?

On re-reading the chapter in the Report which deals with the Court of Appeal, I find myself still in two minds. Although I am strongly attracted to the catch-all Scottish principle – is there or might there be a miscarriage here, or should the verdict stand? – I equally recognise that the difference between evidential and procedural defects is one of kind, not degree. On the other hand, there is one aspect of this question on which I now feel less ambivalent than ever. It was, I am convinced, wrong for the Court of Appeal to refuse, as it used to do, to entertain incompetent advocacy as a ground of appeal unless the incompetence was ‘flagrant’. It seems to me palpably unjust that a person should risk being kept in prison for a crime committed by someone else because his or her counsel relied on a line of defence which turned out to be the wrong one. How can it be right for the Court of Appeal to say, in effect, to the appellant, ‘We find that you must remain in prison because your barrister was not so incompetent that we can set you free?’

The fourth topic is the so-called right to trial by jury. I say ‘so-called’ because it is only in offences triable either way that the defendant can choose the mode of trial in England and Wales, and some of the most indignant critics of our recommendations in this area seemed to ignore the fact that any defendant charged with fare-dodging or kerb-crawling, including the proverbial bishop whose reputation is particularly at risk, has no choice but to be tried before magistrates. But the real point of principle here is that we agreed that it should be for Parliament to lay down what offences should be held to be sufficiently serious to go before a jury. Over 90 per cent of criminal cases are tried by magistrates and will presumably continue to be so. Somebody has to draw the line. But why should the defendant be the person to draw it? No right to choose one’s own mode of trial exists in Scotland. We recognised that the seriousness of the offence is a complicated matter and that it involves more than simply the degree of harm caused or value of goods stolen or handled. But that, in our view, is all the more reason for Parliament to lay down statutory criteria which magistrates would be bound to follow in sending cases to the Crown Court rather than trying them themselves. Our expectation was that the result would be a reduction in the proportion of trials before a jury. But it was not because we saw that as an end in itself that we recommended that the present arrangements should be changed. We did not expect the recommendation to arouse the hostility which it did, and if we had I expect that we would have presented our case in its favour in a manner which would have addressed the grounds of that hostility directly. But we were never going to persuade those who hold that defendants who would rather be tried before a jury ought to have the choice that there is no reason why they should have it, and that the criteria by which cases go to the Crown Court are – on principle – a matter for Parliament.

I have mentioned Scotland in connection with both jury trial and the Court of Appeal. But there were other features of the Scottish system by which some or all of us were attracted. We did not think that judicial examinations, or precognition of witnesses, or larger juries, or not-proven verdicts, or the requirement that every witness should be formally corroborated would, if adopted in England and Wales, materially increase the chance of juries getting it right (which is not to say that we thought they would decrease it either). But we were impressed to the point of envy by both the role of the advocates depute in prosecuting for the Crown and the role of the Procurator Fiscal in relation to the police. So you may fairly ask: why did we not seek to move these parts of the system South of the Border in a more specifically Scottish direction?

The answer, in summary, is that we would have had to be starting from somewhere else. What would be the point of our arguing the merits of advocates depute when the Bar in England and Wales is far too large, heterogeneous and dispersed for a replication of the system to be workable? What would be the point of recommending that the prosecuting authority deal with complaints against the police when the Police Complaints Authority has only recently been established and the subordination of the Scottish police to the Fisc is the product of a very long, wholly different and quite irreproducible history? We did debate at some length the relationship between the police and the Crown Prosecution Service in England and Wales, and I am aware that some of our critics would have liked us to recommend that the CPS should directly oversee the way in which the police conduct their investigation and prepare their case. But we concluded that to achieve a collaboration as effective as appears to have been achieved in Scotland, it would be more sensible to build on the advisory function of the DPP under the Prosecution of Offences Act 1985 than to give the DPP formal powers to instruct the police. This is partly because of the acknowledged weakness of the CPS in its early years and partly because in any case we thought the right relationship more likely to evolve through consultation under guidelines mutually agreed than through attempts by what would often be junior (or, as the Americans call them, ‘baby’) prosecutors to oversee the conduct of investigations by local police forces throughout England and Wales. It is, if you like, pragmatism again, and again I stand by it.

It follows that if we were not going to adopt as a model a jurisdiction as close as the Scottish to that in England and Wales, still less were we going to recommend the adoption of institutions and practices from jurisdictions whose history and culture are even more divergent. We did collect a great deal of information about the criminal justice systems of other countries, and we did draw on it on certain topics where it seemed to us that a moral relevant to our prospective recommendations could be drawn. But I never seriously contemplated taking the Commission to any other country to try and discover at first hand whether or how they do significantly better in securing the convictions of all and only those guilty beyond reasonable doubt of serious criminal offences. I have therefore no answer to those who believe that if we had looked sufficiently closely at France, Germany, Sweden, Australia, the United States or anywhere else we would have come up with other and better proposals for reform of the system in England and Wales. I can only say that among the people we consulted either formally or informally about other jurisdictions, the more they knew about the one in question the less likely they were to advise us that it would be either practicable or desirable for us to try to turn the system in England and Wales into it.

Then what about the research into our own system which we used, including what we commissioned for ourselves? Here again, although I was not surprised to find a certain mistrust of academics by practitioners and vice versa I was a little surprised to find how far it sometimes goes. It is understandable that academics should be inclined to suspect practitioners of defensiveness and complacency, and practitioners to suspect academics of having made up their minds in advance about what they want to prove. Perhaps too, the mistrust is compounded by the fact that the academics tend to be on the Left and the practitioners on the Right. But I, at least, learned a great deal which I would not otherwise have done from the research on which we drew. It is inevitable that research of this kind will be vulnerable to argument over methodology as well as interpretation. What is more, there is always a ‘moving target’ problem: the behaviour of the players may have changed significantly since the research was carried out, and may, indeed, have changed in part as a consequence of the research. But it was essential that our recommendations should be informed not only by what those directly involved in the criminal justice system could tell us about how it ‘really’ works but by systematic enquiry of the kind that only properly qualified and adequately funded researchers can carry out. It was then for us to decide what conclusions to draw from both kinds of evidence; and it is an incidental irony that one of the most vehement academic critics of our Report, Professor Mike McConville, should be one of the researchers whose work was most useful to us.

Not even the most lavishly funded and meticulously executed research project, however, could ever tell us what we should most have liked to know – that is, what difference would it actually make to the workings of the system if our recommendations were to be put into effect? On some topics, it is true, research can take the form of a trial run: thus, for example, the revised notice to detained persons developed by Isabel Clare and Gisli Gudjonnson can readily enough, as we recommended, be tested under real conditions. But there was no way that we could find out in advance whether our recommended overhaul of detective training would in fact achieve a significant improvement in performance, or our recommended modifications to pre-trial procedures would in fact cause cases to be not only earlier but better prepared, or our recommendation that the defence should have an enforceable right to observe scientific tests carried out by the prosecution would in fact diminish the risk of convictions based on jurors’ reliance on flawed or questionable scientific evidence. We had simply to recognise that all the players would continue as ever to work the system in their different interests and to do the best we could to anticipate their probable game-plans.

Research did help us to the extent of showing us the seriousness of the difficulties needing to be overcome: we could be left in no doubt about the weakness of supervision in all but very serious police investigations, about the inadequacy of the legal advice given to suspects in the police station except where an experienced criminal solicitor attends in person, or about the dangers of reliance by jurors on confessions which might not have been made at all, or if made might not have been true. But the only test we could make of the potential efficacy of our recommendations was to put them to a range of veteran practitioners of differing viewpoints (including the self-styled radicals who often turn out to be more attached than anyone to the existing system) and ask them to tell us how easy they thought those recommendations would be to ignore, bypass or frustrate.

At this point, someone might well say: ‘thought they would be? Did you simply rely on the opinions of whoever you talked to?’ And to this likewise, there is no answer except to observe that much of the academic research too was, and was bound to be, opinion. Study of ordered and directed acquittals involved opinion as to which were foreseeable and which not; study of the handling of serious fraud involved opinion about why convictions had or had not been secured; study of police surgeons involved opinion about how well or badly qualified they are to identify suspects in need of psychiatric help. The Crown Court study by Michael Zander and Paul Henderson was of value precisely because it gave us the opinions of all the principal participants in all the cases which went through the Crown Court within the period of the study; if, as some people have argued, the right inference to be drawn is more the complacency of the players than the quality of their performance (and it obviously doesn’t follow that, for example, jurors have understood scientific evidence simply because they say that they have) it is not less valuable on that account. The point I would make is that authentic anecdotal evidence, whether from academics or practitioners, is still evidence. It is not experimental science. But it is not mere assertion either; and of that there was and is far too much both inside and outside the Houses of Parliament.

So: if the Commission could have its time over again, what would I like to see in its Report that is out? Or out that is in?

In answering the first question, I need to distinguish things I would have liked to see in that could have been in from things that in practice couldn’t. Of the latter, the first and most obvious is the jury itself. In the terms of reference (about which I was not, contrary to textbook practice, consulted), the word ‘jury’ is notable for its absence. I actually asked, when the terms of reference were put under my nose, whether Ministers were hoping that the Commission would recommend that juries should be abolished. But the answer was an emphatic no. Juries are sacrosanct to Right and Left alike. I myself wonder whether, if they didn’t exist for reasons now long outdated, anyone would invent them. If we had always had, in England and Wales, a system whereby serious crimes were tried before an experienced judge and two juniors who were required to give written reasons for their verdict, I doubt that we should be clamouring to replace them with twelve people chosen at random who don’t have to give their reasons at all. But the question is doubly academic, since the Contempt of Court Act 1981 expressly prohibits research into how jurors arrive at the verdicts they do. When, therefore, John Jackson complains in The Criminal Law Review that we recommend relaxation of the restriction on hearsay evidence in the absence of empirical evidence on how juries respond to hearsay evidence, my response is: yes, indeed. I only wish we did, or could, have such evidence. But I do not accept that we were wrong to make any recommendation at all on the topic without it.

A second topic on which we would have said more if we could is race. We were conscious that there is, in England and Wales, a widespread loss of confidence in the impartiality of the police, magistrates, and also juries among ethnic minority communities. But we were also conscious that despite a voluminous academic literature on ‘race’ and ‘racism’, it is not possible to measure with any precision the extent to which there is discrimination in the sense either that non-Irish whites are consistently treated more leniently by the police within their area of discretion or that decisions taken elsewhere within the criminal justice system have a ‘systematically adverse impact on ethnic minorities’ (as it is put by Marion Fitzgerald in her research study done for the Commission). The main difficulty, as I see it, is that, as Professor Robert Reiner pointed out a decade ago, young Afro-Caribbean males are likely to become disproportionately involved in street crime since they are, as we know, disadvantaged in employment, housing and education, and they are bound, therefore, to be more often the targets of aggressive policing.

The two aspects of the problem on which we did feel that we could comment, and did, are first, the composition of juries in cases with a racial dimension, and second, the risk that members of ethnic minorities may be predisposed to protest innocence even when guilty and therefore to attract heavier sentences than those who recognise the principle on which the discount is based. Sentencing as such was – I am tempted to add, ‘thank goodness!’ – outside our remit. But I wish we had been in a position to say more about the possible implications of Roger Hood’s research, whose results were published just before we finished drafting our report. Cultural predisposition is a notoriously difficult subject on which to establish any quasi-experimental generalisation, and even if it could be shown that some minorities are significantly more resistant than others to accept the principles and practices of the system of criminal justice in England and Wales, it would not follow that they should not be charged and, if found guilty beyond reasonable doubt, convicted of what the law defines as serious offences in the same way as anyone else. But I wish we knew more about cultural predisposition than we do, and could therefore have said more about its implications for our concerns than we did.

The third topic in this category is magistrates’ courts. Another of our academic critics, Andrew Ashworth, asks in The Criminal Law Review, ‘Does not the research of Riley and Vennard and of Hedderman and Moxon suggest that we should be looking into ways of improving the conduct of contested trials in magistrates’ courts?’ To which my answer is that it does. But the overwhelming proportion of the representations put to us, as well as the events which led to the establishment of the Commission in the first place, concerned serious offences tried before juries. It was here, in our view, that public concern was greatest and the need for reform most pressing. There can be no doubt that the standards of performance of magistrates’ courts vary widely across the country and that it would be desirable for the less good to be brought up closer to the level of the best. But if we had set out to examine them sufficiently comprehensively for our conclusions about them to carry weight, the Commission might be sitting still; work on improving them was, as we discovered, already in hand; and the case for more resources to be applied to the training and retraining of magistrates and the monitoring of their performance, such as we explicitly recommended in the case of judges, can be extrapolated from those recommendations without further discussion. So: yes, I would in theory have liked the Commission to cover magistrates’ courts in detail. But in practice I did not, and still do not, think it would have been wise for us to try to do so.

One ground, however, on which we have been criticised is our alleged desire to see more cases tried by magistrates because taxpayers’ money would be saved thereby. It is not in fact the case that any of our recommendations were dictated by a wish simply to save money, and still less that we valued efficiency before justice. But partly on that account, I wish we had said not less but more about cost-effectiveness. It turned out to be much more difficult than I had expected to cost the various parts and stages of the process of investigation, preparation and trial. But I now wish that we had not only rebutted in anticipation the charge of putting efficiency before justice, but that we had spelt out in more detail both where and why we thought costs could be cut without increasing the risk of a mistaken verdict and where we thought that more money would have to be spent if that risk were to be reduced.

And most of all, I wish that we had argued more strongly the need to ensure that the new Criminal Cases Review Authority whose establishment we recommend is properly – which means abundantly – funded. It is a sobering but incontrovertible conclusion to be drawn from Peter Hill’s two television series, Rough Justice and More Rough Justice, that to put right what the courts and the Home Office between them have got wrong can require the budgetary as well as the investigative resources of Granada or the BBC on a major scale. I hope and trust that, when the new Review Authority is up and running, that conclusion will be recognised and acted on, and that it will not be undermined by the cases, which there will inevitably be, where detailed and costly investigation serves only to confirm the guilt of an appellant who has succeeded in persuading the Authority that he or she might be the victim of a miscarriage of justice.

When I come to what I should like to see out of the Report which is in it, there are two mistakes which we would undoubtedly have corrected if we had seen them for what they are. The first is a conclusion which we drew from research by Hedderman and Moxon to the effect that 83 per cent of defendants electing jury trial in either-way offences end up by pleading guilty to all or some charges. As pointed out by Lee Bridges in the New Law Journal, this is wrong because the sample of defendants interviewed consisted only of convicted defendants. The figure should therefore be corrected to something close to 70 per cent. Had we recognised the mistake it would not have changed our recommendation. But I naturally regret that we made it.

The second mistake is of a less transparent kind, but more serious. The Criminal Bar Association has pointed out – I think rightly – that our recommendation on confession evidence sufficient to convict is not wholly coherent. The majority of us believed that a jury should be allowed to consider a credible confession even in the absence of other evidence. But we said in the same breath that the judge should then warn the jury of the dangers and advise them to look for supporting evidence in the Turnbull sense – Turnbull being the case which led the Court of Appeal to lay down guidelines for the withdrawal from the jury by the judge of cases resting on identification evidence whose quality is in doubt. But identification evidence is different from confession evidence – credibility is not the point, but rather correctness of the identification – and it is not only unnecessary but contradictory to invite the jury to look for supporting evidence if they are in any case satisfied about credibility. I now recognise that we ought to have said that the warning to the jury should, like a Turnbull direction, emphasise the special need for caution but that it should be related to the need for the quality of the confession to be such that it is probative beyond reasonable doubt. This may further antagonise those who want plausible but possibly coerced or fabricated confessions to have to be corroborated; but the answer to that, I fear, is that police officers who will coerce or fabricate confessions will be quite capable of manufacturing corroborative evidence if they have to.

There is, however, one remaining line of criticism which does not quite fall under the heading of either omissions or mistakes. It was most forcefully made in the response put out by the Law Society, whose complaint is that the Commission ‘did not go far enough’. By this they mean that, as they see it, we talked about ethnic discrimination without saying how it should be tackled, we recommended a review of the role of the appropriate adult without saying what we thought it should be, we proposed the establishment of a Forensic Science Advisory Council but failed to spell out exactly what it is to do, and we recommended a new Review Authority without presenting a ‘blueprint for how it should work’. I have to say that although I understand the reason for this complaint, I do not accept it even apart from the pressure we were under to lay our Report before Parliament by the summer of 1993. In the first place, we have been criticised by others for being too much, rather than too little, preoccupied with ‘nuts and bolts’. In the second, we were all conscious of the limits of our collective expertise when it came to working out exactly how our recommendations ought to be put into practice. And in the third, we saw a risk that if we went as far as the Law Society says it would have liked us to go, those to whom our recommendations were addressed might use the additional controversy to which we would thereby have given rise as an excuse for not taking up our recommendations at all. Nothing, to me at least, would have been more irritating than for us to have undermined the prospects of our recommendations being adopted by having tried too hard to demonstrate our confidence about exactly how they could and should be implemented in detail.

I have to say in conclusion that I have been disappointed by quite a lot of the comment the Commission’s Report has received. This is not because it has been predictable, and still less because it has been critical, but because less of it than I would have hoped has embodied specific suggestions as to what we might have recommended but didn’t, in order to increase the likelihood of the police apprehending, and juries subsequently convicting, all but only those offenders whose guilt is beyond reasonable doubt. Indeed, it has occasionally seemed to me as if the remarks of our more intemperate critics have been scripted by their opponents in order to caricature them. When on the one hand I read in an article by Lee Bridges and Mike McConville in the Modern Law Review, shortly after I have been discussing with my joint Deputy Chairman of the Securities and Investments Board, Lord Alexander, how very difficult it can be to get convictions of serious financial fraudsters, that our recommendations are going to reinforce ‘the system’s overall presumption of guilt’, and on the other hand I hear a former Attorney-General, Lord Rawlinson, saying, in a House of Lords speech immediately following a speech of mine defending our Report, that ‘all those academics who have lectured, written and held seminars must take responsibility for the failure to get on top of the problem of increasing crime’, I begin to wonder whether we all inhabit the same planet. Arguments ad hominem must, I know, be deployed with caution. But I wonder what some of our critics from the Left would have to say to the parents of a teenage son knifed by an assailant whom he names to the police but against whom he will not testify in court for fear of reprisal, just as I wonder what some of our critics from the Right would have to say to the parents of a teenage son who has volunteered information to the police about an incident he has witnessed only to find himself charged, convicted and imprisoned for his alleged involvement in it. Both these are actual cases; and it is surely uncontroversial to draw from them the moral that the system must address both the need to bring those guilty of serious offences to justice and the need to prevent the misuse of their powers by the agencies charged with doing so.

On the other hand, I have on the whole been encouraged by the reception of the Report by those to whom its recommendations are actually addressed. This means not only the Home Office, the Lord Chancellor’s Department, and the Law Officers’ Department, but the Bar Council, the Law Society, the Judicial Studies Board, the Legal Aid Board and the Police. With the important exception of the Government’s decision to modify the right of silence, all these bodies have responded positively to the greater part of what we said they ought to do. I do not suggest that this proves us to have been right: reforms are not desirable simply because those in a position to make them happen to have been persuaded that they are. But without such persuasion, nothing can be reformed at all; and the criterion by which a Royal Commission must be assessed is the difference which its Report actually makes to what its Report is about. If in ten years’ time there are good grounds for thinking that a higher proportion of those guilty beyond reasonable doubt have been convicted by juries and a higher proportion of those whose guilt is not beyond reasonable doubt acquitted, and if more of those who may have been wrongfully convicted have had their convictions overturned by the Court of Appeal with the help of a new, proactive independent Review Authority, then we shall have been vindicated. I recognise, of course, that no argument to that effect will ever be conclusive. Academics, practitioners and politicians will all be able to argue either that any apparent improvements are independent of the implementation of our recommendations or that a different set of recommendations would have produced a greater improvement still. Nevertheless, that is the test by which the Report should stand or fall.

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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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