Feasting on Power

John Upton continues his survey of the criminal justice system under David Blunkett

David Blunkett’s latest Criminal Justice Bill, this Government’s 12th piece of such legislation since coming to power in 1997, will go a long way to producing a caste of untouchables in this country: those accused of committing a crime. It will strip away safeguards that have taken centuries to accrue, and alienate criminal suspects further from society as a whole. It is an appeal to the baser sentiments of Middle England by a Home Secretary who does not accept the need to preserve a balance between the powers of the state and the rights of defendants. It signals that those accused of crime do not deserve our protection.

The Bill is 374 pages long and its stated aim is ‘the rebalancing of the criminal justice system in favour of victims, witnesses and communities’. At its heart lies a desire to deny justice to those who are most in need of its application, for the sake of increasing the conviction rate. The Bill’s celebration of victimhood astutely catches the mood of the tabloid press: Tony Blair has even suggested that the criminal justice system should be renamed the victim justice system – an idea which threatens to turn criminal justice into a primitive system of personal retribution. To think of the Bill as a victim’s charter is to misunderstand it, however. The real effect of reducing the rights of defendants will not be to benefit victims but to increase the power of the state.

So how could a centre-left party dream up a piece of legislation that the Thatcher Administration would have considered too extreme? The meandering path through the intellectual foothills of communitarianism taken by Blunkett in his book Politics and Progress[*] helps to explain the thinking behind the Bill. Even in this paean to Blairite reasonableness, he manages to reveal rather more of the Blunkett we have come to know and dislike than was perhaps intended, and though he writes disapprovingly of the ideological positions of previous administrations, they appear closely to mirror his own: ‘Nor can a simply authoritarian stance work where social and economic breakdown is endemic.’ Or: ‘this task’ – of active self-government – ‘must be undertaken in ways which avoid the dangers of populism.’ Or: ‘Governments that try to pass the buck for failure can only succeed if like Margaret Thatcher’s Administrations they are able to blame others, often those most reliant on state support, for their weaknesses.’

The Bill is currently going through the House of Lords. It can only be hoped that the Lords’ opposition to it, together with the confusion caused by ‘charming’ Charlie Falconer’s appointment as Minister for Constitutional Affairs, will result in a dilution of at least some of its provisions. But the signs are not promising. The Home Secretary, it’s said, has threatened to invoke the Parliament Act to force the Bill through without the Lords’ consent, should they show signs of putting up any real resistance.

The Bill is in two parts, one dealing with penal policy and the sentencing of offenders, the other with the criminal justice system from arrest through to trial (this part is based on the Review of the Criminal Courts conducted by Lord Justice Auld). It is a measure of the severity of the implications of the Bill that reforms which would normally be thought of as serious blows to civil liberty appear pettifogging in comparison with its most significant provisions.

Proposal is layered on proposal. Nearly all will have a negative effect on the safeguards available to defendants. The first 26 clauses, for example, deal with police powers: the power to stop and search is increased; the limits on detention without charge are extended to a much wider class of offences; the restrictions on taking fingerprints and non-intimate samples without consent are eased; revisions to the PACE codes, which regulate the conduct of the police in their dealings with criminals, are allowed to be made by the Home Secretary without reference to Parliament, and the police are allowed to give a conditional caution without any recourse to the courts.

The major proposal in respect of the pre-trial process concerns the disclosure to the defence of material gathered by the prosecution. The Law Society considers this the most important issue raised in the Bill. Disclosure is the procedure by which the prosecution allows the defence to see any material that the police have collated in the course of their investigation into a crime, but on which the prosecution does not intend to rely in presenting its case in court. This ‘unused material’ may well be evidence which could assist a defendant in proving his innocence. It might be a statement taken from someone at the scene of a crime which, in contradiction to another eyewitness, asserts that a defendant was not present, or a report by a forensic scientist that suggests that fibres found on a dead body do not match those taken from a defendant’s clothes. It was the failure to disclose such material which led to the wrongful conviction of Judith Ward and the Birmingham Six, among others, and those scandals led to a liberalisation of the disclosure process. Governed at the time by the common law, the regime was altered in the early 1990s by the judiciary, without any need for legislation.

Despite (or perhaps because of) these miscarriages of justice, the Conservative Government then claimed that the rules for disclosure had become so relaxed that virtually any scrap of paper gathered in the course of an investigation now satisfied the common law test of relevance. In 1996, the Criminal Procedure and Investigation Act introduced a statutory disclosure scheme, which is still in operation. It forces defendants to reveal their case to the prosecution in a ‘defence case statement’ before complete disclosure is made to them. Worse, the existence of relevant material unused by the prosecution is revealed to the defence only in the form of an entry in a schedule. This list is released to the defence only after two obfuscating stages. First, any material unused by the prosecution is entered on the schedule by a designated police officer. There are no independent checks as to the propriety of this compilation. If the officer chooses not to enter an item then no one, apart from him, will know of its existence. Second, the prosecution lawyer in the case examines the schedule rather than the actual documents it lists and then chooses which items from it should be shown to the defence. If, and only if, in his opinion a document undermines the prosecution case will it be disclosed.

Secondary disclosure may take place on submission of a defence statement setting out in general terms the nature of the accused’s defence, the matters on which he wishes to take issue with the prosecution, and the reasons why. The prosecutor goes back to the schedule in the light of this, and considers whether there’s anything in it that assists the defence case. Prosecutors have struggled with the distinction between what constitutes undermining the prosecution case and what assisting the defence case, so, obligingly, the new Bill lays down a single test for prosecutors to apply both before and after receiving the defence case statement. They must consider whether there is any material that ‘might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused’.

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[*] Demos, 188 pp., £8.99, January 2001, 1 84275 024 0.