Whose Justice?

Stephen Sedley

  • The Report of the Royal Commission on Criminal Justice
    HMSO, 261 pp, £21.50, July 1993, ISBN 0 10 122632 2

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.

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