Diary

Stephen Sedley

The courtroom process keeps its perennial hold on lovers of drama at all levels. At tabloid level it provides revelations of human depravity which nurture every generation’s belief that standards are sinking to previously unknown depths. At the level of high art it is a crucible in which to purge the dross of events and distil essences of truth. Novelists find courtroom proceedings a valuable device for bringing a story to a head and a conclusion: but in real life a judgment or verdict is far more often a stage in a painful odyssey, or even the start of one, than its resolution.

Occasionally something happens to bring this home to my profession when, after fighting like cocks for our living, we have bowed to the judge, gathered our papers and gone off for tea together. (Mon cher confrère, says the Daumier cartoon which adorns barristers’ walls like a talisman.) A wife, divorced against her will in a community which rejects deserted women, throws herself under a train on the way back from court. From the triumphant door-of-court settlement the family of a drunken driver’s victim go home to an empty house. These are the by-products of justice, occurring when the captains and the kings have departed: they are unfortunate, but they are not our fault and not our business. I say it without irony, for the legal system is a closed system. It demands a willing suspension of belief whenever it is presented with facts that do not conform to its narrow assumptions. The man in the dock denies dishonestly handling the video: he says he got it in the pub off a man called John. ‘John who?’ asks prosecuting counsel. ‘Dunno,’ says the accused. ‘How long have you known him?’ says counsel. ‘Oh, we’ve drunk together for years,’ says the accused. ‘And you don’t know his surname?’ the judge intervenes, exchanging a telling look with counsel and an incredulous look with the jury. For judge and counsel inhabit a world where people are properly introduced to one another when they meet for drinks. They went to schools, and then into a profession, where you are known by your surname and forenames are a mark of intimacy. The jury are invited to enter this world; sometimes they are drawn into it; sometimes it repels them.

Among its comforting certitudes the law values finality. Judgment is a terminus, tomorrow’s case a new departure. We do not like old cases to come back and haunt us; we are bothered by the reappearance of the undead: the litigant who has had a judgment but still wants justice, the prisoner who will not admit guilt in conformity with the verdict. The law has doctrines to exorcise these people. One is that it is in the public interest – that is to say, judges think it right – that there should be an end to litigation. In a cheering chapter of legal history an old jailbird, Alfred Hinds, ran a ring around this limb of the law. Hinds was sent down in 1953 by Lord Goddard for a big jewel robbery at Maples in Tottenham Court Road. He went protesting that, among other things, the crime was right out of his class, and he repeatedly escaped to draw attention to his denial of guilt. Then one day his old antagonist, Chief Superintendent Sparks, retired and the Sunday papers bought his memoirs. When they published the bit about Alfie Hinds and the Maples job, Hinds sued Sparks for libel and won. The Home Office had to let him out. You might have thought lawyers would congratulate Hinds on his perseverance and themselves on how the byways of the law always lead to justice in the end. But the legal system was not pleased, nor even amused: it got the law changed to prevent a libel action ever again being used to undercut a conviction.

Something similar was attempted by the men jailed for the Birmingham pub bombing whose case has now been referred to the Court of Appeal by the Home Secretary. After conviction, they sued both the Police and the Home Office for damages for the beatings which they have persistently said they suffered first on arrest (before their alleged confessions were made), and then on remand. The Home Office uncharacteristically admitted that prison officers had beaten the men up. The admission was cheap at the price, since the prison officers had already been acquitted of criminal assault and it drew fire away from the Police. Thus protected, the Police then got the House of Lords to strike out the entire claim against themselves on the ground that it was an abuse of the legal process for the men to re-traverse territory which had been covered at the bombing trial. Finality was set above justice. Now, years late, the re-opening of the issues has come anyway.

The belief that the appeal system will filter out errors misunderstands both the system and, more important, its psychology. The legal system promises a fair trial within the law: it does not promise an infallible one. Once the evidence has been heard and the jury has been directed in accordance with the law, there is no room for an appeal. The system will therefore accommodate an argument to the effect that it has failed to observe its own rules, but it cannot take the suggestion that, notwithstanding adherence to its own rules, it has blundered: to do so would be to cast a long shadow of doubt over the system itself. It is this silent defensiveness, I think, that lies behind the refusal of the Home Secretary to refer to the Court of Appeal the comparably disturbing case of the 11 people convicted of and in connection with the 1974 Guildford pub bombings, as well as that of the men convicted of murdering the newsboy Carl Bridgewater in the same year. Three books followed each other in rapid succession last year: Chris Mullin’s on the Birmingham case, Paul Foot’s on the Bridgewater case and then Robert Kee’s[*] on the Guildford case.

Kee’s is a drier, less passionate book than the other two, partly because its prose is more visibly marked by the size-12 footprints of the libel lawyer. Once again we have a crime that cried out for vengeance, with its potentially distorting effect on the quality of detection and justice. It is an important myth, but still a myth, that the courts represent a reliable filter and a check on over-zealous police work. The fact is that while the jury can and often do perform this function, the judiciary often don’t. When judges have to rule whether a confession should be excluded because it was obtained by oppression, they can believe neither that the benign and respectful officers they see in the witness box would threaten or knock about a suspect, nor that many suspects will eventually admit anything simply to force a halt to repeated accusation and interrogation in a closed and frightening environment. Having imported his own vision of the world, the judge in due course conveys it to the jury. Not for nothing is the bench populated entirely by former advocates. Provided the judge has told the jury it can disregard his views, the Court of Appeal will not interfere with a conviction based on a heavily weighted summing-up, and with this prescription a plausible and intelligent judge, convinced of the guilt of the accused, can give a direction to a doubting jury which is a work of Machiavellian art. Deadly vocal inflections do not appear on the transcript read on appeal. Think how many ways there are of saying: ‘The accused denies that this statement was made voluntarily. She says she was beaten up. If there is any doubt in your minds about the reliability of her statement you must of course acquit her.’ One now retired judge regularly used an elderly and deaf shorthand writer who missed all his barbed asides to the jury and who, in any event, could not record either his intonation or his theatrical looks at the clock every time defence counsel began to make an impact in cross-examination.

Foot quotes the judge in the Bridgewater trial as saying of a professional fraudsman who was called by the prosecution: ‘He is of course a prisoner. Perhaps you found his evidence unusually convincing for a man of his background. I know not.’ Kee quotes Mr Justice Donaldson (now Master of the Rolls) as repeatedly suggesting to the jury in the Guildford trial that if the accused had really been knocked about by the Surrey Constabulary they would have reported it to Metropolitan Police officers when they appeared on the scene. In ways like these the system holds up a distorting mirror and invites the jury to view reality through it. None of us can say if the verdicts were correct, but we are entitled to ask if they are arrived at reliably.

The Guildford bombings led to two trials. The first, for murder and conspiracy, was against four young adults, one of whom made statements implicating all the others. The second was against seven people, members or friends of the Maguire family, some of whom the Police were convinced had also been on the bombing expedition but who, on the available evidence, had to be charged, tried and sentenced as, in effect, the expedition’s armourers. Kee’s ground of concern is not simply that parts of the alleged confessions were demonstrably not true, nor that the test used to detect nitroglycerine traces is unreliable, but that shortly after the prison doors closed behind the accused, two members of an IRA unit which had been cornered and arrested in the Balcombe Street siege admitted that they had been responsible for the Guildford bombings and affirmed that the four people convicted of them had not been involved. If this had happened immediately after the bombings, the 11 Guildford accused might never have been arrested, for until their arrest there was nothing pointing to them half so compellingly as the Balcombe Street men’s statements pointed away from them. But on appeal the quickness of the judicial brain deceived the eye: all this meant, said the Court of Appeal, was that the whole lot of them had been involved.

One of the important institutions protected by the reluctance to refer cases like the Guildford case back to the Court of Appeal is the system of police interrogation. The law’s rules about when it is and is not legitimate to give in evidence what other people have said are an unbelievable muddle, trapped in 17th and 18th-century theology and psychology and locked into primitive and risky police practices and procedures. The simple expedient of excluding confessions which are not recorded on video or audiotape has encountered extraordinary resistance. When a Scottish police force experimentally introduced recording at its police stations, suspects suddenly began confessing in the police vehicle on the way to the station. It is sobering to realise that our legal rules against unreliable accusations or confessions represent little advance on those propounded for witch-hunts by William Perkins in 1608: ‘If a fellow-witch or magician gives testimony of any person to be a witch,, this indeed is not sufficient for condemnation, but it is a fit presumption to cause a strait examination.’ In some ways, we even fail today to heed Perkins’s caveat: ‘If the party examined be unconstant, or contrary to himself, in his deliberate answers, it argueth a guilty conscience, which stops the freedom of utterance. And yet there are causes of astonishment’ – inarticulateness – ‘which may befall the good as well as the bad.’ Most wonderfully of all, Perkins’s proposition that even a deathbed accusation of witchcraft should be used not as evidence but only as a basis for investigation was superseded in the late 18th century by a doctrine of law, based on a combination of hellfire theology and sentimental psychology, that the reported accusation of a dying person was hard evidence against the person accused: ‘they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone: when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a Court of Justice.’ Today, when few people believe that death is a passage to the dock of a celestial Old Bailey where the maximum sentences would satisfy even a Tory Party Conference, and when nobody believes that the imminence of death is likely to bring truth to the lips of a lifelong liar, it is still the law.

The fact is that policemen, witnesses, judges and juries can all make ghastly mistakes. But the root of injustice is not this. It is the obsessive pretence of the law that mistakes are corrected on appeal and that what cannot be corrected on appeal is not a mistake. A just system is one which acknowledges that it is not proof against error even when it has carefully complied with all the rules. The trouble is that a less parsimonious use of the power to reopen old cases would raise the uncomfortable question whether our system of detection and trial may not only make mistakes but generate them. Although the abolition of capital punishment came too late to save innocent people like Timothy Evans from being hanged, it has perhaps taken the edge off our fear of erroneous convictions. We need to remember that hanging is not the only way in which the law can take life.

[*] Trial and Error: The Maguires, the Guildford Pub Bombings and British Justice by Robert Kee. Hamish Hamilton, 284 pp., £10.95, 13 October 1986, 0 241 11958 8. The other two books were discussed by Paul Foot and Stephen Sedley respectively (LRB, 18 September and 9 October).