Feasting on Power

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’.

Things have not been made so simple for the defence, and for this reason the provisions of clauses 32-38 of the Bill are worth examining. They demonstrate the panoply of requirements that the defence will have to fulfil under the new regime in order to avoid censure. The Bill defines the defence statement as one

– Setting out the nature of the accused’s defence, including any particular defences on which he intends to rely,

– Indicating the matters of fact on which he takes issue with the prosecution,
– Setting out, in the case of each such matter, why he takes issue with the prosecution and
– Indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.

If the accused fails to give a defence statement, fails to do so at the right time or

– Puts forward a defence which was not mentioned in his defence statement, or is different from any defence set out in that statement,
– Relies on a matter which, in breach of the requirements . . . was not mentioned in his defence statement,
– Adduces evidence in support of an alibi without having given particulars of the alibi in his defence statement, or
– Calls a witness to give evidence in support of an alibi without having complied with the alibi disclosure requirements in giving his defence statement

then the court or the prosecutor can comment on the defendant’s action and inferences can be drawn from it when the court or jury reaches its verdict. The defence is also obliged to provide the court and prosecutor with an updated defence statement in certain circumstances.

The justification for making the defence jump through these hoops is the claim that the late or incomplete submission of case statements by defendants is a major cause of pre-trial delays. It’s true that criminal defendants often have mental health problems and frequently lead chaotic lives. It’s also true that their representatives work within a woefully underfunded system. But there is absolutely no evidence to support the assertion that it is only defendants and their representatives who clog up the disclosure process.

This wouldn’t be quite so objectionable if the prosecuting authorities were anywhere near putting their own house in order. In the clamour to damn the accused, there is no mention of the continuing failure of the police and other prosecuting authorities correctly to implement the statutory regime seven years after its enactment. No mention is made of the additional guidelines that have had to be issued by the Attorney General to try to correct inappropriate practices which have grown up – many to do with the schedule – and there have been no concerted attempts to deal with the delays caused by the police.

In the main, laziness and ineptitude are the reasons the disclosure rules aren’t followed, but in some cases the police deliberately fail to reveal relevant unused material, or even properly to investigate a crime in a way that would allow them to follow these rules. There is, for example, the case of the CID man who refused to let an officer dust for fingerprints at the scene of a murder because he already ‘had a hunch’ as to the identity of the perpetrator and therefore didn’t want to know about the existence of other people’s fingerprints (which he would have to disclose to the defence).

All of this is compounded by the failure of prosecutors to scrutinise disclosure schedules on time and in enough detail. Blaming this on a lack of resources often disguises more fundamental problems of competence. Lawyers will skip over items listed imprecisely on the schedule rather than question the disclosure officer, and prosecutors will often be responsible for the vital task of disclosure on cases with which they have had no prior involvement. Nowhere in the Bill are there attempts to regulate these misdemeanours on the prosecution side.

In a smaller, more sinister development, the Bill requires the accused to give the court advance notice of whether he intends to give or call any evidence at trial. If so, he must provide the prosecution with the name, address and date of birth of any proposed defence witness. If he doesn’t, penalties will apply. It is explicitly stated in the Home Office Consultation Document outlining this reform that it will enable the police to track down and interview defence witnesses before a trial starts. This will facilitate the nobbling of witnesses by bent or over-zealous coppers, while compelling the defendant to assist in his own prosecution. The Government seems to believe that criminal proceedings are analogous to those in the civil courts, that prosecution and defence are equally balanced. But criminal prosecutions are not a joust between two equally armed contestants. On the contrary.

For all Blunkett’s talk about community and active democracy, the most momentous change the Bill proposes is the withdrawal for the very first time of the right to a jury trial in three circumstances: if a defendant opts for trial by judge alone; where there has been jury tampering; and in serious and complex fraud cases. The thinking behind this proposal is unsupported by any research into the benefits or otherwise of jury trial (research has always been hampered by the Contempt of Court Act, which prevents questions being asked of jurors once a trial has ended). Nor has the Government seen fit to consult those most intimately acquainted with the functioning of juries – lawyers and judges.

The arguments as to whether jury trials are a suitable way of trying long and complex fraud cases centre on three issues: the length of the trials; the ability of jurors to understand the details of the fraud; and the historical right of defendants to jury trial and its constitutional significance. The arguments in favour of abolition, as summarised by Auld in his report and adopted by the Government, are as follows:

1. The length of jury trials in such cases constitutes an unreasonable intrusion on a juror’s personal and working life, going beyond the normal requirement of two weeks’ service.

2. This in turn makes juries less representative of the community, because the court frequently excuses many who would be able to make only short-term arrangements to serve.

3. The length of trials is a great strain on everyone involved – accused, witnesses and jurors.

4. With their legal and forensic experience, judges would be much better equipped to deal justly and expeditiously with such cases.

5. Long jury trials are very costly and, because resources are limited, delay the disposal of other cases.

In answer to which one might say that trials conducted by a judge alone might not be any shorter. As with judge-only civil trials, the rules of evidence and procedure would have to be followed scrupulously and the final judgment would have to make it plain that the judge had approached the law, the evidence and the decision-making process in the correct way. This would entail a full rehearsal of the law, the evidential submissions and the salient facts.

A high-profile case frequently used as an example by abolitionists is that of the Maxwell pension fund fraud, in which Kevin and Ian Maxwell were acquitted after an eight-month jury trial. This is held to be a paradigm of how juries may be bamboozled and frustrated. It is less often noted that a number of the issues under criminal investigation were subsequently fully explored in a civil case before a High Court judge experienced in commercial fraud. It lasted nine months.

Besides which, trying to assess how long trials are likely to last is notoriously difficult. When an investigation has produced large quantities of documents, not all strictly relevant, the generous use of a photocopier can turn a relatively simple case into a process of some length. Prosecutors often serve vast amounts of material on the court and the defence at the pre-trial stage. Were judge-only trials an option in cases deemed to be above a certain threshold of complexity, the incentive for prosecutors to generate more paper would increase, if only to convince the judge that the case was suitable for judge-only rather than jury trial.

On the second issue – whether jurors understand difficult fraud cases – the argument for abolition runs as follows:

1. In order to be regarded as the defendants’ peers, jurors should be experienced in the commercial field in which the offence occurred.

2. The volume of evidence and complexity of the issues may be too difficult for a jury to understand or analyse, and thus to determine whether there has been dishonesty.

3. There would be greater openness with a judge alone, and a reasoned decision, instead of an inscrutable verdict, would follow.

Yet far from being a disadvantage, a certain unfamiliarity with the technical language of the boardroom and the trading floor helps to keep legal proceedings honest and comprehensible, by obliging lawyers and judges to observe the standards of the general public. With a jury, lawyers also need to explain the rules by which the courts operate: a system that had no need to explain itself to those outside the profession would soon lose the confidence of the public. There is an associated danger that offences tried by judge alone would come to be regarded as less than criminal and rather more like those usually dealt with by a regulatory or professional tribunal.

A panel of jurors provides a range of experience and insight that no judge on his own can match. Fraud cases will frequently turn on a defendant’s beliefs or judgments at the time of his actions and it could be argued that a jury is better equipped than an Oxbridge-educated white male, however venerable, to make an accurate assessment of such circumstances.

The Government seems to think juries are so cerebrally challenged that they constantly acquit when they should be convicting, but a Bar Council analysis of Serious Fraud Office prosecutions shows that the conviction rate of individual defendants has increased from 63.6 per cent in 1988-91 to 86 per cent in 1999-2002. It is difficult to know, without research, whether or not juries struggle intellectually. Anecdotal evidence from barristers and judges suggests that they don’t. Government prosecutors, on the other hand, dealing even with elementary fraud cases, often have difficulty with the legal concepts and the facts put before them. Surely, it would be better to improve the calibre of the lawyers who prepare the cases rather than blame the jurors who fail, if indeed they do, to grasp them. Equally, if barristers improved their presentation and indulged in fewer patrician airs and graces, the intelligibility of trials would be much increased.

On the third and final issue – the constitutional right to trial by jury – the anti-abolitionists tend to take the historical high ground. The Bar Council, for example, has said that ‘the strength of the case for retaining juries in all serious trials lies not only in the experience of the judges and advocates, but also in legal and constitutional history. For centuries jurists have regarded trial by jury as the fairest form of trial.’ Invariably, the argument continues with a reference to Clause 39 of Magna Carta, which states: ‘No free man shall be seized or imprisoned or stripped of his rights or possessions or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.’

These words have given succour to many old school libertarians arguing from a historical perspective, and are echoed in a famous passage from Lord Devlin, which for full effect should be read while ‘Land of Hope and Glory’ plays on the gramophone:

Each jury is a little Parliament. The jury sense is the Parliamentary sense. I cannot see the one dying and the other surviving. The first object of any tyrant in Whitehall would be to make Parliament utterly subservient to his will; and the next to overthrow or diminish trial by jury, for no tyrant could afford to leave a subject’s freedom in the hands of 12 of his countrymen. So that trial by jury is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.

Unfortunately for those who seek the endorsements of Runnymede, the jury Magna Carta referred to wasn’t anything like what we now understand by the term. William Holdsworth, in his History of English Law, commented: ‘A trial by a royal judge and a body of recognitors who found the facts was exactly what the barons did not want. What they did want was first a tribunal of the old type in which all the suitors were judges of both law and fact, and secondly a tribunal in which they would not be judged by their inferiors.’ More recently, in the Criminal Law Review (1991), Penny Darbyshire has argued that defenders of the jury system are mistaken in portraying a ‘right’ to jury trial as central to the criminal justice system and a fundamental guarantee of due process and civil liberties.

If the jury is such a ‘palladium’ of English justice why is it reserved for such a small number of cases, most defendants being treated to the cheaper, less flamboyant ‘trivial’ justice of the magistrates’ court? If the jury is such a guardian of our liberties and of justice, are we implying that magistrates dispense some lesser form of justice? Are we implying that, since we invest so much cash and rhetoric in the jury system, that it is more likely to do justice and get the verdict right, whatever that means, than the magistrates? If so, why do we, in this, the fairest of legal systems, allow most of our defendants to be processed by magistrates’ courts?

She goes on to question the possibility of a constitutional right existing in a country without formal constitutional arrangements, and asks whether a ‘right’ to jury trial exists jurisprudentially if a defendant has no choice in the matter, because of the seriousness of his offence, other than to be tried by judge and jury.

These are challenging arguments, but Darbyshire neglects to allow that many defendants and lawyers believe jury trials to be fairer and that, in contrast, magistrates merely do what is expected of them by the prosecution. Under Blunkett’s reforms, magistrates are to be given increased sentencing powers, but the fact that they will still not preside over the more serious cases need not be interpreted as a criticism of their ability to dispense justice. Rather, it can be seen as a recognition by society that crimes of a certain gravity are deserving of scrutiny by representatives of the community at large. The jury is a symbol, as well as a fact, of this participatory democracy. Society as a whole suffers from crime and it is highly desirable that society as a whole should be represented within the system that determines guilt or innocence.

Appeals to history are destined to fall on deaf ears. A Government which is prepared to abolish the 1400-year-old office of Lord Chancellor is unlikely to flinch at the dismemberment of such a troublesome institution as the jury. A more relevant justification for its continued existence is to be found by reference to the one present-day example of judge-only criminal trials in the United Kingdom, the so-called Diplock Courts in Northern Ireland. In their study of those courts, John Jackson and Sean Doran suggest that the arrangement leads to an ‘adversarial deficit’ – the judge’s increased inquisitorial role changes the nature of the proceedings. Pressure is placed on defendants to refrain from contesting the prosecution case on its merits, as would be the case in a jury trial. The authors conclude that the outcome of a jury trial will not always be more favourable to the defendant, but that the defendant loses certain protections in a judge-only trial. As Dato Param Cumaraswamy, the UN Rapporteur on the Independence of the Judiciary, has warned:

Trial by jury is embedded in the criminal justice system of England and Wales. It is today in essence part of its independent judicial process. Any attempt to dilute it selectively under the umbrella of reform will see the beginning of the end of jury trials. What is done once, if it be allowed, may be done again in less serious cases and thus a very important additional safeguard to judicial independence in England and Wales will be eroded.

It is not only those accused of serious fraud who will feel the impact of the new Bill. Major evidential reforms are proposed which will disadvantage any defendant, chief among them that a defendant’s previous convictions are to be revealed to a jury at the beginning of a trial as a matter of course, rather than introduced into the proceedings only in certain limited circumstances, as at present. This ignores the fact that any case relying on previous convictions is likely to be weak; it will make investigation a matter of arresting the usual suspects, and lead juries to convict where there is scant evidence, on the basis that the defendant’s previous history makes him or her more likely to be guilty. Other changes include the abolition of the rule against hearsay evidence. In addition to which, the prosecution is to have a much wider right of appeal if a judge terminates a case by ruling on the strength or admissibility of evidence – ruling, in effect, that the prosecution cannot proceed.

If by some miracle a defendant does succeed in securing an acquittal, his troubles are by no means over. One of the criticisms levelled at New Labour is that its policies are responses to media events. The killing of Stephen Lawrence was one such event and it would not be unfair to call that section of the Bill dealing with the removal of the rule against double jeopardy the ‘Lawrence law’, so strong is the link between his murder and its existence. Double jeopardy is the principle that a person may not be tried twice for the same offence, whether he was originally acquitted or convicted. It guarantees finality in proceedings and ensures that the state cannot continually harass those it suspects but has failed to convict of committing a crime.

The Macpherson Report into the conduct of the investigation of the Lawrence murder brought about a change in Government thinking. Recommendation 38 was that ‘consideration should be given to the Court of Appeal being given power to permit prosecution after acquittal where fresh and viable evidence is presented.’ Clause 69 of the Bill provides that the cases which may be retried are those in which a person has been accused of a ‘qualifying offence’ – these are to include murder, rape, directing terrorist organisations and hijacking Channel Tunnel trains. The prosecutor will be able to apply to the Court of Appeal for an order quashing a person’s acquittal and ordering him to be retried if there is new and compelling evidence that he is guilty and that it is in the public interest for the prosecution to proceed.

There are strong reasons why the rule against double jeopardy should not be done away with. Its abolition would provide an effective means for the state and the media to continue hounding the acquitted and it is not impossible that policemen, who frequently see their investigation as a personal battle between themselves and the criminal they are pursuing, would misuse the abolition of the rule to continue a vendetta. Even without any malice on the part of the police, the human rights organisation Liberty has commented, ‘police and prosecutors, knowing they can have a second bash, won’t have to tackle the real problems of incompetent investigation in the first place.’

Such fears are well founded. While Macpherson is reported to have said that the youths acquitted of the Lawrence murder would not stand trial again even if the double jeopardy rule were removed, the fact that the Government means to ensure that its application is retrospective makes it difficult to shake off the feeling that a clause in a major Bill is intended to pursue suspects in a specific case. Sir John Stevens, the Commissioner of the Metropolitan Police, confirmed in an interview with the Independent that ‘we will be reviewing cases. There would be Damilola and there would obviously be Lawrence, and we would also be looking at other cases. It will be our public duty to do that. The public expects us to do that within the new legislation.’

One can only stand dumbfounded at the extent of these proposals – and others I haven’t taken up. For every reform that takes away a safeguard, the Government should reflect on its own contribution to the abuse of the system. Instead of passing the buck, Blunkett should take some responsibility for the situations he is trying to redress. Police misuse of the disclosure process should be stopped and the culprits prosecuted; research should be conducted into the efficacy of jury trial; criminal defence should be properly funded, not squeezed ruthlessly out of business by lack of public money; prosecutors should display a modicum of competence in discharging their duties – the list is endless. A Bill to rectify the current flaws in the investigation and prosecution of crime might even surpass Blunkett’s behemoth in the number of its clauses.

‘Will even full implementation of this raft of proposals significantly increase the proportion of offences that are solved or reduce the level of crime?’ Michael Zander has asked plaintively of the Bill. ‘It is unlikely.’ It is equally unlikely that New Labour will give a damn what anyone thinks. In its determination to shift power radically towards the executive, the Bill breaks several taboos. If we are content to do away with juries and other guarantees of fair trial, why should we not reconsider the general presumption of innocence, say, in relation to certain categories of crime? The Bill has been openly opposed by the senior judiciary and in part inspired the rift between Blunkett and Lord Irvine, which led to the latter’s departure from the Cabinet, Blunkett insisting that his programme was being continually undermined by the Lord Chancellor. The overnight abolition – without consulting Parliament – of the ancient office did not prevent the newspapers being full of odious pictures of a bewigged Lord Falconer sitting in that capacity in the House of Lords. Hogarth could not have managed a more apposite image. His rubicund features were the personification of a Government that has feasted on power in the absence of an effective opposition and grown dangerously arrogant.