Keep your nose clean

The Labour Government is about to embark in its second term on a radical and repressive programme of legal reform. If the proposals contained in the White Paper Criminal Justice: The Way Ahead are implemented, the Government will have succeeded in dismantling some of the fundamental safeguards which exist to protect defendants in the criminal justice system. Labour’s view seems to be that civil liberties for those accused of crime are unimportant – if you keep your nose clean you don’t need to worry. This is a posture first struck by the Home Secretaries of the Thatcher years. Anyone who thinks that they voted for a party that cares about civil rights is in for a shock.

A large number of proposals in the White Paper are only sketched out. The Government is awaiting the publication of a report by Sir Robin Auld, showing the results of his comprehensive review of the criminal courts, before flesh is put on the bones of the recommendations. As so often with New Labour, presentation seems to be thought as important as content. The White Paper is full of impressive diagrams, charts and text boxes and is marbled with jargon such as ‘justice gap’, ‘joined-up government’ and an exhortation to the police and the Crown Prosecution Service to ‘refocus on their core business’. There’s even a nod in the direction of the New Age in the perception of a need for ‘holistic solutions’ to achieve ‘a society at one with itself’. Throughout the document, there are abbreviations, acronyms and catchphrases; it reads like a management consultancy project summary.

It is in Part 3 of the White Paper, entitled ‘Modernising the Criminal Justice System’, that the Government’s intentions are most clearly set out. Part 3 begins with an appraisal of the Crown Prosecution Service, the body that brings prosecutions on behalf of the state, which has recently also been the subject of a review by Sir Iain Glidewell. Before the mid-1980s, criminal investigation was the domain solely of the police service, whose actions were not subject to any external review. It is now accepted that the ‘core business’ of significant elements of the police throughout the 1950s, 1960s and 1970s was the obtaining of wrongful convictions through the planting or suppression of evidence and the abuse of suspects. Following the recommendations of the Royal Commission on Criminal Procedure, the 1985 Prosecution of Offenders Act established the CPS in order to separate responsibilities for the investigation and prosecution of crimes.

The Way Ahead seeks to abolish a ‘justice gap’, as it is described, between the CPS and enforcement officers – although this gap is one that should at all costs be preserved. This separation of powers enables CPS lawyers to evaluate the viability of a proposed prosecution objectively, without fear of undue pressure from the police. The Glidewell Review recommended that the police and CPS develop joint units, to be known as Criminal Justice Units, to ‘maximise efficiency and effectiveness’. The White Paper approves of this arrangement, which has already been implemented in some parts of the country, and lists the advantages it will bring. They include: ‘Less time spent transporting files between offices’ and ‘cost savings – reducing duplication and overheads’. ‘In some areas,’ according to the White Paper, ‘this means CPS and police sharing office accommodation for the first time.’ The CPS is also to explore with the police ways to ‘develop a nationally consistent approach to the provision of earlier and better pre-charge assistance to the police (including out of hours)’. It’s difficult to see how proposals such as these do not effectively reunite investigatory and prosecutorial functions. This, we’re told, will help to ‘increase the number of prosecutions and reduce the number of cases that fail’. The Guildford Four, Judith Ward and the numerous other recipients of West Midlands Serious Crime Squad-style justice are among those who benefited from the attentions of an all-powerful police force able to bring prosecutions without hindrance from a truly independent agency empowered to check on the legality of their case. In the light of these new proposals we can surely look forward to other such cases.

The Way Ahead needs to be read in conjunction with Labour’s recent election manifesto. In one area, that of jury reform, the manifesto speaks out where the White Paper remains largely silent, reiterating the intention stated during Labour’s first term – and one shared with several previous Conservative administrations – to remove the ‘widely abused right’ of defendants to ‘dictate’ whether or not they should be tried ‘in the Crown Court’, a coy circumlocution this for the more embarrassing ‘by a jury’. Put simply, Labour wishes to end the right to jury trial for a number of offences. It is a fact that juries, free from the prejudices of professional lawyers, acquit defendants more frequently than do magistrates. Moreover, in a jury trial questions of law are decided by a judge while the factual issues are decided by the defendant’s peers. This will seem to many an eminently sensible arrangement that is fair on the whole and works well. It must be curtailed, Labour says.

There is also a call for panels of experts rather than ordinary jurors to sit in cases involving offences such as serious fraud. The Labour view is that experts are needed to decide the factual issues in these cases: the judgment of the layperson is not to be trusted. There can be no doubt of the complexity of fact and law that arises in such trials, but Labour’s proposals should be treated with caution. There is a risk that the reform would create a panel of expert witnesses for the prosecution rather than jury members objectively trying the facts. At the very least, any possibility of the appointment of experts drawn directly from the specific field – banking for instance – against which the fraud was committed should be excluded.

In the next section of Labour’s manifesto we are instructed that the rules of evidence ‘fail to trust the good sense of judges and jurors’. The startling arrogance of this statement, which appears just after a proposal that clearly demonstrates the Government’s concerns about the ability of jurors to convict enough defendants or even, in some cases, to understand the evidence before them, is matched only by its dishonesty: many of our ‘rules of evidence’ are the product of judge-made law.

The manifesto goes on to outline a recommendation that, if implemented, would have a profound effect on the outcome of many criminal trials: ‘we see a strong case for a new presumption that would allow evidence of previous convictions where relevant.’ The White Paper also makes this proposal, adding that evidence of previous convictions would be allowed ‘where relevant, providing their prejudicial effect does not outweigh their probative value’. If the formation of Criminal Justice Units will unravel the work of decades, then these proposals could reverse a full century of evidential practice. Their implementation would create a presumption of the defendant’s guilt in the mind of a jury (presuming juries still exist). Although the test of ‘relevance’ is left indeterminate, and the White Paper engages in some nitpicking over the ‘probative’ (towards proving a crime) as against the ‘prejudicial’ (towards making you think a defendant is guilty), the result would be to make a fair trial for a defendant with previous convictions almost impossible.

The current position regarding previous convictions is governed by the Criminal Evidence Act of 1898, which allows them to be disclosed to a jury in a criminal trial in three situations: where the defence challenges the character of a prosecution witness; where the defendant claims he is of good character; or where the defendant gives evidence against a fellow accused. Whether or not these three situations pertain, and the extent to which the previous convictions should be disclosed, are matters for the trial judge to decide. The 1898 Act was predicated on the sensible belief that if they are introduced, it is likely that the accused’s defence will be compromised. To allow them to be disclosed is to create in the minds of magistrates and jurors an unavoidable feeling that the defendant is less believable as a witness, and the trial will inevitably turn on what is perceived as his general moral conduct.

The Law Commission (Consultation Paper No. 141, 1996) has identified two types of prejudice capable of affecting juries or magistrates: ‘reasoning prejudice’ and ‘moral prejudice’. In a case of reasoning prejudice, the jury may reach its verdict in a reasoned way but place too much emphasis on the evidence of a defendant’s propensity to commit crime. By moral prejudice the Law Commission was referring to the jury’s temptation to convict someone not by reason of the evidence put before them but out of moral repugnance. The conclusions reached by the Law Commission have been validated by case law. In R v. Bills (1995), the jury convicted a defendant of an offence under Section 20 of the Offences against the Person Act 1868. While waiting to leave the court before sentencing, they heard the prosecution tell the judge of his several convictions for violent conduct. The jury then applied to change their mind and bring in a verdict of guilty on a more serious offence (under Section 18 of the Act). Incredibly, the judge acceded to the request, only to have his verdict quashed by the Court of Appeal on the grounds that the unfortunate airing of the defendant’s previous convictions had prejudiced the jury’s decision. Another byproduct of the suggested reform will be to increase the risk that the police will arrest the usual suspects on the basis of their criminal records, rather than on the evidence available in a particular case.

It’s not as if the previously criminal can go unchecked throughout the trial process without any reference being made to past misdemeanours. Only last year, the House of Lords (R v. Z) extended the admissibility of evidence of previous conduct, including offences for which the defendant was acquitted. This type of evidence – known as ‘similar fact’ – is admissible when the modus operandi of a defendant is so similar in a number of cases that to exclude it on the basis that it did not form part of the direct evidence in the matter currently being tried, would itself cause injustice. But this is not enough for the Government, which wishes to legislate ‘if there is any remaining doubt over the principle established’. Legislating to allow evidence of previous convictions to be put before juries and threatening to legislate in order to bind the hands of judges are both demonstrations of the Government’s desire to limit the discretionary powers of the judiciary – a desire made even clearer by the terms in which the White Paper calls for codification of the criminal law. This would apparently ‘demystify’ the law and the criminal justice system, whose ‘rules and procedures are complex, often highly technical and sometimes perceived as archaic’. At the moment, the criminal law is derived from numerous sources – the common law, legislation and certain presumptions, conventions and precedents. The Government recommends that a ‘core criminal code’ replace these disparate elements, and that the substantive law and rules of evidence, procedure and sentencing be encapsulated in book form. (A code was first proposed by the Labour Government in 1970, so the White Paper’s comment that its production ‘would be a long-term commitment’ is certainly not an understatement.)

The Way Ahead also proposes that the operation of the test for excluding evidence contained within Section 78 of the Police and Criminal Evidence Act 1984 be, as it is euphemistically put, ‘reviewed’. This section of the Act gives the court discretion to exclude evidence where its admission would have a manifestly adverse effect on the fairness of the proceedings. Since its introduction, Section 78 – together with Section 76, which covers similar ground – has been a most valuable instrument in protecting the defendant from wrongful conviction, since it makes illegally obtained evidence and brutally extracted confessions inadmissible. Nor is interference by the state necessarily at an end once a defendant has been acquitted: the Government reaffirms its commitment to abolish the rule against double jeopardy, which prevents the bringing of a further prosecution against an acquitted defendant for the same crime.

In the same vein, the White Paper recommends that the prosecution should have a right of appeal if a case has been dropped before its completion because of a ruling by the judge on the admissibility of evidence. The Way Ahead fails to mention that when prosecutions are terminated in this way, it is usually because there is insufficient evidence with which even to formulate the bare bones of a prosecution case, or that the evidence has been excluded (often by way of Section 78) because it has been obtained by the police either illegally or in breach of their code of practice.

A number of the White Paper’s proposals have come about as a direct result of recommendations made by the MacPherson Report on the Stephen Lawrence case. The most significant relates to the removal of the rule against double jeopardy. The Lawrence affair proved the value of robust independent defence lawyers, prepared to operate under immense political and media pressure to ensure that the procedural safeguards of defendants were not blatantly disregarded in the desire to achieve a conviction. Since April, however, the right of defendants to be represented by the lawyer of their choice has been fettered by the introduction of the Criminal Defence Service.

This has been a source of much controversy. Solicitor’s firms practising criminal law must now enter into contracts giving them accreditation to represent defendants in criminal proceedings at an agreed level of funding, and with the requirement that minimum performance levels are achieved. Furthermore, the terms of the agreements specify that the firms themselves must act as advocates at the magistrates’ courts in a significant percentage of their criminal defence cases. This will have disastrous consequences for junior criminal barristers. It is precisely this type of work, given to them by solicitors, which allows them to gain experience, and keeps them in employment. When the second stage of the recommendation is implemented, whereby defence lawyers are to be employed directly by the state (a mirror image of the CPS), the days of the independent criminal bar as we know it will be numbered. Wherever defendants turn they will be denied choice: there is a real danger that the criminal justice system will become the poodle of the government of the day.

The White Paper steadfastly refuses to accord any protection to the accused, but raises the status of the victim, giving a further indication of the Government’s priorities. The Victim’s Charter, which already guarantees certain rights – to be treated with dignity and respect, to be given ‘support’ (what type of support is not specified), to protection, to give and receive information, to compensation or reparation and to a transparent criminal justice process – is being revised and put on a statutory footing, and a Victim’s Ombudsman is due to be appointed to ‘champion victims’ interests’, working with the Government to ‘introduce changes to services which will benefit victims’. Most significant is the introduction, as from October this year, of victims’ personal statements; these will be given to the police and will relate how a particular crime affected their lives. These statements will be used throughout the criminal justice process, playing a part, so the White Paper says, in determining whether a case should be continued and in the success or otherwise of bail applications. This is an extraordinary acknowledgment that, in the new order of things, those accused of crimes are now guilty until proven innocent; the victim’s account of a crime is accepted without the defendant even having been through the trial process and the evidence tested.

These proposals bring vengeance justice a step nearer. They imply that a victim is the ‘owner’ of a criminal act, that a crime is committed not against the whole of society but against an individual by a personal adversary. It used to be recognised that there are more complex things at stake in the commission of crimes than the simple relationship between victim and perpetrator. Introducing this stand-off between the two diminishes the community’s ability to impose a sense of proportion on the criminal act in question. The theft of a handbag, which to the victim may assume the significance of the Great Train Robbery, should be treated by the criminal justice system merely as the theft of a handbag. Most divisive of all, victim statements are to be used as a determinant in compensation payments. Labour proposes to bring the mentality of the exaggerated insurance claim into the criminal justice system.

There are currently two methods, without resorting to the civil courts, by which victims of crime can claim financial reparation. The first is by application to the Criminal Injuries Compensation Board, a method available to victims of crime whether an offender has been convicted or not. Although the amounts available under the scheme are far smaller than those awarded in the civil courts, the sum paid out by the Board in 2000 was greater than the amounts paid out by all the similar schemes in the rest of Europe added together. Alternatively, the defendant, if convicted, may be liable to pay compensation to a victim. The victim statements may be used as a factor in gauging the amount that should be made payable. One option discussed in the White Paper is a requirement that judges consider including in every community sentence an element of reparation to the victim. This change in the perspective from which the criminal act is viewed, from one in which it is regarded as a transgression against the whole community to one in which subjective notions of rights and personal feelings take precedence, promotes the very attitudes that give rise to offending behaviour.

Any measures brought in by the Government must of course now comply with the Human Rights Act. But this does nothing to diminish the fact that Labour’s proposals dismantle various forms of protection for persons accused of committing crime. The promotion of legislation such as the Human Rights Act as the ultimate cure-all for injustice seems to have lulled us into a false sense of security. In certain circumstances it can act as a convenient smokescreen behind which safeguards weaker than those currently prescribed under English law can be introduced.