Swedish Practices

On the day Simon Hayward was released from a Swedish prison and returned to England, the Independent reported that a senior official in the Swedish Justice Department had declared himself against punishing convicts who attempt to escape from prison, because it is ‘a natural reaction’: ‘If you were in a prison,’ he asked a seminar, ‘wouldn’t you start thinking of how to get out?’

The absurd reasonableness of this approach to prisoner care is in a way typical of what the world has come to expect from Sweden’s judicial system, and until quite recently it would have been met, at least among the liberal-minded, with a kind of sniggering admiration for a society which dared radically to question the orthodoxies of crime and punishment. In Sweden, the physical punishment of children is now an offence, and children can take their parents to court if necessary. Swedish prisoners are guaranteed half-remission preceded by a gradual, and usually very successful, reintegration into the community; prison cells looking like hotel rooms; conjugal visits not only allowed but encouraged; regular and unsupervised furlough.

In the last few years, however, the progressiveness of the system has shown a more questionable aspect. Roughly speaking, it is what happens before a conviction – the conduct of pre-trial investigations, the role of the public prosecutor, the admissibility of circumstantial and hearsay evidence – which has recently caused concern. At times the criticism has been fierce – ‘uncivilised’, ‘barbaric’, ‘medieval’, ‘fascistic’ – and, to the intense embarrassment of this the ‘moral superpower’, the European Court of Human Rights has found Sweden in breach of its Convention on no less than seven occasions.

The law in Sweden is, both in theory and in practice, an instrument of the state. There is no such thing as an independent judiciary: not only public prosecutors but judges too are civil servants, trained specifically for their (not particularly prestigious) jobs. Juries are made up of ‘lay assessors’, who are in reality political appointees, usually local councillors, nominated by the political parties, in direct proportion to the current state of parliament. At the head of the judiciary is the Minister of Justice, an office which has had its share of controversy in the last few years. There also seems to be a deeply-rooted unwillingness to regard justice as anything but profoundly political: with its administrators subject to the same practical political contingencies as every other servant of the people. As an added feature, Sweden’s legal and political culture is non-adversarial to the point of nod-and-wink informality, which in turn has meant an increasing tendency for the borderlines between areas of competence to become blurred, and even for matters of basic justice to become open to negotiation and compromise.

At the centre of this scheme of democratic justice stands the much-abused figure of the public prosecutor. His role has been criticised primarily on two counts: first, he is the nominal head of the pre-trial investigation working in close, day-to-day contact with the Police. As the bungled investigation into the murder of Olof Palme has shown, this has meant – at best – a constant and debilitating friction between prestige-ridden, conviction-hungry policemen and cautious, vacillating prosecutors; at worst, weak and pliable prosecutors under the control of unscrupulous police investigators. Secondly, it is the public prosecutor’s job to collect all the evidence, on behalf of both the prosecution and the defence, and the impartiality with which he is supposed to do this is clearly laid down in law. The result is a staggering conviction rate.

The problems begin when a case takes on political (in the broadest sense) overtones and the public prosecutor is under pressure – not least from the media, since there is no sub judice law in Sweden – to satisfy what he perceives to be the general climate of opinion. Both Simon Hayward, convicted of drug smuggling, and Christer Pettersson, who was initially convicted of the Palme murder, are notorious examples of a state of affairs where the accused appears to have had a guilty scenario written for him, against which the validity of any evidence is then measured, and the prosecutor’s job becomes one of drawing that scenario to its logical conclusion. That end can justify some extraordinary means, including months of solitary confinement to break the accused down; the misuse of police interviews, which are hardly ever recorded verbatim but usually written up as précis afterwards; the non-investigation of evidence which suggests the innocence of the accused; the introduction of extremely dubious circumstantial and hearsay evidence; the almost unlimited use of press conferences during trials to further the prosecution’s case.

It was, furthermore, one of Simon Hayward’s many misfortunes to have been arrested at a time when the system was – as it still is – in a state of profound crisis resulting from the mishandled Palme investigation. The abuses of the system have continued, indeed seem to be increasing horrifically with every day that passes. Hayward’s case was, as he says, a foregone conclusion because simply by being who he was, and regardless of his possible innocence, he presented an irresistible scenario for a conviction. When his chief tormentor – a particularly unlovable Police Inspector – was asked by the press whether it was not an indication of Hayward’s innocence that he had not confessed despite long periods in solitary confinement, he replied: ‘No, Hayward cannot let England down. If he was to confess he would be failing his family, the British Queen, Margaret Thatcher, the Queen’s Guards, the majors, the brigadiers – yes, the whole British Empire.’ For a manipulative police inspector, a public prosecutor on the make, and a national press eager for evidence of British – if not downright Thatcherite – perfidy, the case of the drug-smuggling Guards officer could not have been more cut and dried.

In early 1987, in Ibiza, Captain Hayward was asked by his brother Christopher – one of many expatriate ex-hippies on the island – to deliver his Jaguar car for sale in Sweden. Out of sympathy with his brother’s financial position, and happy at the prospect of a few days’ skiing, Simon Hayward agreed. When he was stopped by the police just outside Linköping a couple of days later, 50.5 kilos of cannabis were discovered concealed in the car. Protesting his innocence, Hayward was arrested and eventually charged. Meanwhile a number of people, including Christopher Hayward, left Ibiza in a hurry and have not been seen since. In August 1987 Captain Hayward was sentenced to five years in prison.

Did he or did he not know that the drugs were in the car? The prosecution had a number of reasons for saying that he did. First of all, there were some seemingly incriminating circumstances, such as Hayward’s purchase of a screwdriver suitable for dismantling the bottom of the car, and his choice of route through Europe. Then, controversially, two Scotland Yard officers from the National Drugs Intelligence Unit received information from an unnamed source that Hayward had indeed had ‘full knowledge’ of the drugs. Although unsubstantiated, the information was passed on to the prosecutor, who relied heavily on it during the trial. Thirdly, and perhaps most damagingly, there was the testimony of a certain Forbes Cay-Mitchell, a Scotsman involved in the drugs ring and arrested at the same time as Hayward. Mitchell claimed that Hayward knew perfectly well that the drugs were in the car and that his reasons for getting involved were the money – reportedly £20,000 – plus the excitement. Hayward points to several inconsistencies and contradictions in Mitchell’s testimony and suggests that he has made it all up in order to conceal the true extent of his own involvement, as well as that of a mysterious character known as Dook who may or may not be the mastermind behind the drugs ring. The NDIU report he dismisses – supported to some extent by the then Assistant Commissioner Colin Hewett – as hearsay evidence which cannot have any relevance as long as it remains unsubstantiated. As for the incriminating circumstances, Hayward points out that each one of them can be furnished with an explanation. With or without his brother’s knowledge he was, he says, set up – the innocent victim of a ‘dummy run’.

Simon Hayward has been forced into making that most serious of mistakes: trying to prove his innocence. Despite the vigour with which he has proceeded, the question remains unresolved: did he or did he not know? It has been said that, apart from himself, only Christopher Hayward knows the true answer. The problem is that if and when Christopher appears, will he be believed? His exoneration of Simon would be met with a certain amount of scepticism. Ultimately, and perhaps tragically, it seems that Simon Hayward will only be truly believed – by the courts and by public opinion – if and when he confesses his guilt.

For the time being at least, this case depends not so much on proven fact as on which set of circumstances one finds more believable. On a first reading of his lengthy plaidoyer, it is possible to think that Simon Hayward makes a convincing case for his innocence. On a rereading of the relevant sections, however, particularly his account of the events leading up to his arrest, doubts begin to creep in. One gets the impression – and it is, admittedly, no more – that this is not so much the full story as a neat arrangement of selected facts. One begins to sense gaps, echoing hollows beneath the surface of the narrative, a slightly false ring to some explanations, a certain tension in the voice. The account of his Army career is one such instance. Another is, crucially, his description of what happened on Ibiza prior to his departure with the car: the signs that something very dodgy was going on were all there and for an army officer with some experience in intelligence to claim that naiveté prevented him from reading them does not wash. As Simon Hayward seems well aware, this is the weakest part of his story and it is difficult to see what he can do to improve it.

By contrast, Hayward is completely believable in his claim that he did not get a fair hearing. As with the July verdict against Christer Pettersson, the question of guilt or innocence recedes into the background when set against the flimsiness of the evidence, the machinations of the police and prosecution, and the officiousness of the press. Hayward may be guilty as sin but that can in no way justify the treatment he received before charges were ever brought – particularly the months of solitary confinement – and as far as Sweden’s human rights record is concerned it is even more disturbing that such an obvious fact should have to be pointed out so frequently. One can detect behind this worrying tendency to stage trials-by-scenario no small amount of political wishful thinking: here, the image of the crafty, privileged, upper-class SAS officer and Queen’s bodyguard who has friends in high places lives up to expectations about Britain in the late Eighties which are surprisingly strong not only in Sweden but in Europe as a whole.