Diary

Stephen Sedley

At almost exactly the same time as the Police were fitting up the Guildford Four, Richard Nixon was discovering that a shredder was a far more important piece of equipment than a photocopier. Late-night shredding parties have since become a feature both of US Administrations and of certain industrial enterprises as the step of judicial investigation approaches. True, not even the shredder was able to keep the CIA’s records from the Ayatollah’s reconstruction brigade, though no doubt embassy equipment has now been upgraded to include incinerators. But the preservation by the Surrey Police of a series of drafts of the ‘voluntary’ confessions attributed to the Guildford Four beggars belief. Somehow the bureaucratic mentality which forbids ever throwing away a piece of paper seems to have triumphed not only over sedulous corruption but even over simple self-preservation.

Whether this or some even more worrying ground of over-confidence was the reason, it looks like another vindication of the cock-up theory of history – a theory which two decades of practice in public and constitutional law have begun to persuade me offers both a serious and a convincing account of how the country is run. Most cock-ups start life as conspiracies. Conspiracy is a word which, when used aggressively in court, denotes a planned crime, but when employed defensively, signals paranoia. Yet for every fifty people whose paranoia is delusional there is probably at least one who really is the object of some privately-planned aggression. Such conspiracies tend blindly to encounter the problem that physicists have recognised for many years: that there is a principle of indeterminacy which predicates that not everything is knowable at the same time. In other words, conspiracies often fall apart or backfire because of something their planners have failed entirely to anticipate. When Thatcher planned with Reagan to send planes from Britain to try and kill Gaddafi, nobody had considered – quite apart from the perennial incapacity of military planners to allow for technical incompetence – the possibility that American tourists would rock our economy by staying away from Britain in their thousands the following summer in case Gaddafi targeted them here in revenge. In retrospect, it is unmissable; in prospect, it was invisible. By this means, if one adopts a Hegelian scheme, each thesis (an event planned privately and usually illegally or unconstitutionally) encounters an antithesis (an unanticipated obstacle or outcome), and the resulting mess, the synthesis, becomes our history.

As a theory it certainly accounts for the fate of a number of criminal conspiracies. I recall, for example, a well-planned bomb-plot which came apart because one of the accused had forgotten to wind up the alarm clock in the bomb. It also, but more rarely, accounts for the exposure of equally criminal conspiracies by police officers to fit up people against whom they are short of evidence. Because of the hermetic seal which surrounds police procedures in Britain, only the Police ever get to vet this material. In ordinary criminal proceedings the defence has no right to see the Police’s background documentation. The Court of Appeal, however, on a Home Secretary’s reference-back, does have power to order the disclosure of official documents. In the reference-back last year of the Carl Bridge-water murder case, following publication of Paul Foot’s Murder at the Farm, a mass of previously unseen prison records and police documents was disclosed by order of the court, resulting in the destruction of the main prosecution witness against Michael Hickey, the youngest of the accused, though not his aquittal. At the original trial, these files were inaccessible to the defence. It’s only when the Home Office is stirred into action, as it finally was in the Guildford case following publication of Robert Kee’s Trial and Error, that other police officers are sent in to sort out and look over the trial papers. Although this can and sometimes does result in the discovery of malpractice, it is still like putting the fox in charge of the hen-coop. It relies not only on the assumed thoroughness of the investigating officers but on their willingness to breach the codes and bonds of loyalty which police culture creates. Nevertheless it’s an interesting by-product of the anachronistic division of Britain’s Police into autonomous regional constabularies that the ties of loyalty weaken and the imperatives of criticism strengthen at the county boundaries, giving some realism to the introduction of an ‘outside’ police force into an internal investigation. Certainly I’ve more than once had senior shire officers expressing shock at their discovery of the way the Met behave, and it’s evident that the Avon and Somerset officers did a conscientious job on the Guildford documents.

It’s still not good enough, however. Why should the victim of what may be fabricated evidence have to rely on the authorities themselves to investigate it? Why should they not be entitled to have their own lawyers scrutinise and challenge not only what is presented in court but where and how it originates? Other developed countries don’t find it necessary for their police to work behind closed doors and sealed shutters. The Inspector Clouseau scenario is inevitably attended by occasional scenes of farce. Indeed, events like the Guildford disclosures not only illustrate the closeness of farce to tragedy: they point up what the best of imaginative literature also points up – the intimacy of the unexpected with the ordinary, of the original with the trivial, and for that matter, of the cock-up with the conspiracy.

For there was nothing inevitable about the eventual admission that the cases against the Guildford Four were fabricated. As late as July this year the prosecution felt able to tell the Court of Appeal that there was no new evidence, and the defence was still struggling to put its case together. One has only to ask what would have happened if someone had had the brains to shred or burn the draft ‘confessions’ all those years ago, together with the other records and interview notes which have now falsified the account given to the trial jury. Unless what the Four could produce with their own tenuous resources was both irrefutable and conclusive of their innocence, there is little doubt that their appeal would have gone the same way as those of the Birmingham Six and the accused in the Carl Bridgewater case. When I reviewed Robert Kee’s book in the LRB in 1987, at a time when none of these references had reached the Court of Appeal, I commented on the psychological difference from the judicial point of view between an appeal and a Home Secretary’s reference-back, even though both of them are governed by the same procedural and substantive rules.

An appeal is part of the system: it is the judiciary’s own routine check on whether the rules have been properly followed. Being ordered by a minister to re-open a case which the courts have declared closed is a different affair. It challenges the system to admit that it is capable of error, that it may actually have accommodated or overlooked malpractice or perjury. What you and I might regard as an important part of a democratic system, the possibility of persuading a Home Secretary by reasoned argument that a conviction needs to be reconsidered by the courts, is regarded by some judges as an invasion of their domain by politicians more concerned with their own popularity than with the good repute of the courts. Their resentment is fuelled by the fact that Home Secretaries do not make these references-back at the drop of a hat: it is generally work by campaigning journalists, sometimes supported by other figures, that provides the necessary prod in the ministerial back. From the Law Courts a Home Secretary’s reference-back can look more like a stalking-horse for a bunch of journalists, campaigners and assorted do-gooders and bleeding-hearts. Judicial horsehair sometimes visibly bristles at it.

Douglas Hurd, for his part, is thought to be equally angered by the snubs his references have been encountering. It is always the duty of a prosecutor who no longer believes that a conviction can decently be sustained to tell the appellate court so, and this is what the Crown has properly done, at the eleventh hour, in the Guildford case. But it is worth speculating for a moment on what might have happened if a more bloody-minded prosecutor had decided to try to sustain the convictions on the alternative basis, adumbrated when the case came before the Court of Appeal, that there might be an innocuous explanation of the various draft confessions even though the officers had lied about the sequence of events. The argument would then be that the convictions were safe even if the officers were perjured. You laugh – but not very different arguments have-sustained convictions in other cases referred back by the Home Secretary. Ministers may have begun to fear that if a reference-back is to succeed, it will only be where the Crown itself forms the view that the conviction is unsafe and decides not to oppose the appeal. If it is the obstructive attitude of the Court of Appeal which is producing this result, it nicely illustrates my general theory: judicial protectionism is actually pushing the executive to usurp a part of the judicial function. Such an encroachment would be a historic reprisal for the judges’ seizure of control of what were once the private fiefdoms of ministers, departments of state, statutory bodies and local authorities, but have in the last twenty-five years been swept decisively into the maw of judicial review.

The Guildford Four would be dead if capital punishment had not been abolished. Some may have hoped that this would silence the hanging lobby for a time. To anybody so naive, or indeed to anybody harbouring a belief in human rationality, the sound of a Tory MP telling the listening world that the acquittals reinforced the case for hanging because hanging would make policemen a lot more hesitant about fitting up suspects must have made a deeply depressing end to what, on the whole, was not a bad day for British, justice.