Whose Justice?

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.

It is, however, a process which has its problems, because there is no necessary unanimity about what justice requires. If the public has ears, eyes and a voice, they are those of the press, and the press has a variegated record on miscarriages of justice. At its best it has journalists like Paul Foot who have doggedly reinvestigated cases nobody else would listen to. At its worst the press can be a source of prejudice that, as the case of the Taylor sisters powerfully demonstrates, actually promotes miscarriages of justice. Between these poles its activity, both up-market and down-market, is often debatable. For example, in my view it now has a good deal to answer for in relation to the 1991 Criminal Justice Act, an intelligent piece of legislation attempting a principled assault on serious problems of oversentencing and overcrowding, which the mass media have undermined by a campaign of selective reporting and occasional misrepresentation about the scale of unit fines and the relevance of previous convictions. The unit fine system, based on a principle of self-evident fairness, had been piloted and worked well, but when it was passed into law the financial limits were clumsily altered. Contrary to almost universal belief, it has not resulted in four-figure fines for dropping sweet-papers. It deserves revision but not abandonment. As to previous convictions, it has been a fundamental principle for generations that a defendant is sentenced for his or her offence, not for his or her record; which does not mean for a moment, if you think about it, that record is always irrelevant to sentence. The 1991 Criminal Justice Act, by putting the principle and its exceptions in writing, has revealed much what the legislators must have feared – that there is not only wide-spread ignorance of the principle but a great deal of hostility to it. The resignation of a minuscule number of magistrates in protest at the Act was inflated by media coverage at all levels into a bogus crisis, and the already complicated legislation is now being put into reverse, returning the problem of over sentencing to those who have created it.

For the Home Office, too, sentencing is an unremitting low-level headache, and the Royal Commission has had its ear heavily bent on one aspect of it – plea bargaining. In theory, in our system of criminal justice, nobody is penalised for having pleaded not guilty before being convicted; instead there is usually a significant discount on sentence for pleading guilty, which is admittedly not very different. There are therefore obvious objections of principle to this system, but there are also arguments of principle as well as of practicality in its favour, starting with the simple proposition that an offender who owns up is less deserving of retribution than one who doesn’t. One major objection, however, is that the system’s mere existence places a measure of pressure on defendants who have a decent defence and may be innocent. But its attractions as a management tool are enormous, because it can simultaneously reduce the prison population by cutting down sentences on a large scale while reducing the backlog and cost of trials by producing many more pleas of guilty. It will achieve this only if the inducements are substantial – good enough, in fact, to persuade defendants with a tenable defence to throw in the sponge before the seconds leave the ring. Among the guilty acknowledging their guilt would inevitably be innocent people persuaded that the risk of a far heavier sentence than they could obtain on a plea of guilty was not worth running.

Lord Runciman’s commission acknowledges this openly, but it wants to lift part of the block imposed two decades ago by the Court of Appeal on the old system of horse-trading and to allow the judge to tell counsel, on the record but in private, what is the worst that will happen if there is a plea of guilty. This is described as a ‘sentencing canvass’, but it includes the ever-present possibility of an offer which can’t be refused. In the ordinary way a defendant who wants to know the odds asks his or her counsel, whose job it is to know the tariff. Why then go behind the tipster and get it from the horse’s mouth? Is the reason that, with the judge involved, the genuineness of the carrot can be established, and its contrast with the stick be made obvious? I put it in this way because barristers of my generation regularly saw this happening until the Court of Appeal stopped it, and pretty unseemly it sometimes was. One particularly undesirable out-come was that people who were charged with quite serious crimes could sometimes, where the evidence was weak, induce the court to let them off very lightly indeed in return for an admission of guilt. Many lawyers still think that if the case is fraught with difficulties the right course is to let a jury hear it out and decide whether it is proved at all. Part of the logic of plea-bargaining and sentence-canvassing alike is that punishment becomes proportionate not to the gravity of the crime but to the strength of the case, a principle which, if it is to be defended, needs first to be articulated.

Another of the inarticulate premises of this kind of proposal, in some quarters at any rate, is a distrust of the jury system. You do not have always to agree with the verdicts juries return in order to disagree profoundly with this distrust. The jury system has the obvious if abstract commendation that it is an injection of democracy into an otherwise arcane and élitist process; but it is far more than this. In the overwhelming majority of cases the collective sense of twelve lay people not only steers them to a discernibly realistic conclusion; it also provides the mutuality and moral confidence which make possible both the tough decisions and the humane solutions that might well make a solitary arbiter hesitate and draw back. Even so there remain things which the courts have learned by bitter experience and of which juries need to be told because they are not readily apparent either to conventional wisdom or to common sense and experience. High among them is the fact that there are people who are driven by a variety of circumstances to confess to things they have not done. We still know far too little about false confession syndromes, and what we do know comes from psychologists and not lawyers; but cases like Judith Ward’s and Stefan Kiszko’s are a memento mori which the Royal Commission does not in my view take seriously enough. It simply recommends a powerful warning from the judge that a confession may be untrue, and why it may be. The Law Commission, however, had already pointed out (and the Runciman Commission quotes it) that to tell a jury why it is dangerous to convict on an uncorroborated confession and then to tell them that they can nevertheless do so, is irrational. How can a conviction dangerously arrived at be safe? The Royal Commission is right to be deterred from insisting on corroboration by the Scottish experience that this leads to a systematic dilution of the standard of corroborative evidence. But there is another solution, to which the commission devotes no space, and that is to make a confession admissible only if it corroborates other evidence independently capable of establishing guilt. The pain of such forensic self-denial is acute when the investigators have in their hands a complete admission of guilt, but it has to be set against the system’s and the individual’s agony if years later the confession turns out to be false or untrustworthy.

Beneath these and other problems of the criminal justice system, and beyond the Royal Commission’s response to them, lies one of the most troublesome aspects of human psychology – the desire for certitude. I do not mean by this the search for truth, but the desire for the truth to be what the seeker supposes. The exertion of pressure to confess is not unnatural, when an investigation has assembled a body of data and now has a suspect to whom to try to relate it. To resist the temptation to apply such pressure requires both probity and regulation. And it is not only investigating police officers who are prey to it. One of the features of recent miscarriage of justice cases has been the abuse of scientific procedures to prove a point rather than to test it. The Royal Commission devotes a chapter to forensic science and expert evidence, and it sees the problem: an adversarial process of proof (the jury’s task, it has been said, is simply to answer the question ‘Howzat?’) has co-opted a quite alien intellectual process of inquiry and examination. Anybody who has seen a competent and intellectually honest scientist first led by counsel to recount as much of his or her findings as will help that side’s case, and then attacked by cross-examining counsel for failing to offer certainties of a kind in which scientific method does not deal, will instantly understand why some scientists refuse to go near a court of law and why others, willingly or unwillingly, find themselves repeatedly appearing in the witness-box not as inquirers after fact but as advocates for a point of view.

I do not know the solution to this problem; nor does the Royal Commission, beyond proposing that experts should have a chance at the end of their testimony to tell the judge, and if appropriate the jury, anything material which counsel have either deliberately or through ignorance left unasked. I suspect that many experts – those who are not professional expert witnesses – would like to tell the court that to try to capture as certainties the products of an intellectual method that thrives on doubt is a crime in itself. Few expert witnesses experience the luxury enjoyed by Richard Hoggart in the Lady Chatterley trial of being able to defend a considered critical evaluation against a hail of middle-class morality. But it is too late to protest: scientists are now regular foot-soldiers in the army of the law, and the conscripts among them are becoming outnumbered by the volunteers as the gap between a day’s expert witness fee and a week’s academic or professional salary grows. Excluding experts is certainly not the solution.

The Royal Commission rightly welcomes the increased acceptance by the courts of expert evidence about the mental and psychological capacities of defendants who have confessed. Although this is in my view the principal area in which the adversarial system gets a deservedly bad name, I agree with the Royal Commission’s view that a change to an inquisitorial system would create worse injustices than it would eliminate:

Our reason for not recommending a change to an inquisitorial system as such is not simply fear of the consequences of an unsuccessful cultural transplant. It is also that we ourselves doubt whether the fusion of the functions of investigation and prosecution, and the direct involvement of judges in both, are more likely to serve the interests of justice than a system in which the roles of police, prosecutors and judges are as far as possible kept separate and the judge who is responsible for the conduct of the trial is the arbiter of law but not of fact.

This approaches a fundamental tension in our system: given the universal obligation on the state as prosecutor to prove the individual’s guilt, it first rests on the state as investigator to satisfy itself that such proof exists; but having so satisfied itself, it must be made to furnish the accused with the means of casting doubt on that proof. I think it is right to say that every one of the major miscarriages of justice of the last few years has come from the single-minded pursuit by investigators of a hypothesis of individual guilt to the exclusion of all pointers away from it. The Royal Commission puts it crisply as ‘the danger that the police may jump too quickly to the conclusion that they have arrested the offender’, but it is rather more than that. To involve magistrates or judges in the investigative process would carry the real risk of making them party to the case for the prosecution wherever the balance of evidence came to favour the laying of charges.

The experience of all barristers, I think, is that presenting one side of a case persuades them of its correctness considerably more often than they can persuade a court of it. To become parti pris in this way is a normal aspect of human psychology, but it warns against the equation of professionalism with objectivity, whether in law or in science. Although they have not escaped without blame, prosecuting solicitors and counsel have since 1981 had to follow guidelines laid down by the Attorney General which, with exceptions more favoured by the Royal Commission than by some judges, afford the defence a sight of all relevant material gathered but not used by the prosecution. The guidelines are necessary precisely in order to govern the otherwise inexorable temptation, to which lawyers are no more immune than anyone else, to keep the bad parts of a case out of sight. While police procedure as a rule involves initially garnering everything capable of having a bearing on the crime, whomever it implicates or exculpates, it is at two key points of the subsequent investigation, and before the evidence comes into the hands of the lawyers, that the critical pressure to distort or suppress arises: the scientific evaluation of data and the interviewing of the suspect. It is not merely an intellectual or subjective pressure; it is fed by a culture which values the esteem of peers and superiors, and in major cases by a shared sense of outrage which the investigators may experience acutely. If what then reaches the prosecuting lawyers has been distorted at the investigative stage, the damage is largely done – disclosure can remedy little or nothing.

This is why the problems of scientific evidence and confessions lie at the core of the Royal Commission’s remit. The first it addresses in detail, and I do not criticise it for failing to solve the intractable questions of scientific proof that I have touched on. It calls for an equality of arms between prosecution and defence in terms of laboratory and research resources; and it is perhaps then for the judges to do what can be done to discourage experts from becoming advocates in the witness-box. The Royal Commission suggests that judges should be more vigilant in stopping bullying or hectoring cross-examinations, which I believe play a part in driving expert witnesses into scientifically untenable positions. With the growth of forensic sciences, however, there may now be a need for experts’ own professional bodies, in consultation with the Bar Council and Law Society, to develop standards and codes of conduct for the giving of evidence, to support those of their members who stand by them and to discipline those who don’t. This is a field in which the legal system cannot do everything.

As to confessions, the Court of Appeal in recent times has had to overturn convictions based on confessions made in audibly oppressive interviews conducted in the presence of a defence solicitor, or interviews conducted in breach of the Codes made under the Police and Criminal Evidence Act but nevertheless allowed in evidence by the trial judge, or simply admitting crimes to which no objective evidence satisfactorily linked the suspect. The Royal Commission calls for better training for solicitors, and for the videotaping of interviews. But the majority of the Commissioners take a stance on breaches of fair procedure that has provoked an important dissent from Professor Michael Zander, supported by Yve Newbold. The majority view is that in cases in which the pre-trial procedures have been improperly conducted, it is only where the Court of Appeal thinks the eventual conviction unsafe that an appeal should be allowed. This means that the Court of Appeal, which has seen and heard none of the witnesses, must form its own view of the defendant’s guilt. Zander takes the more fundamental view that it is unsafe for a system of justice to tolerate seriously tainted evidence of any description, even if, shorn of it, the prosecution case might still have stood up. He proposes that the reception of such evidence – for example, a confession obtained by oppression – should be grounds for quashing a conviction even where there was other evidence capable of establishing guilt. The majority call Zander’s view illogical. They argue, justifiably, that even though Zander is dealing with appeals following trials where seriously tainted evidence has been admitted, it ought logically to follow from his argument that the trial judge likewise must halt a trial where tainted evidence is tendered – even if the judge is prepared to exclude it, and even if there is enough untainted evidence to make a case. It may be said that this is unacceptable (which the majority also call it), but it is not illogical. Zander puts it like this:

The moral foundation of the criminal justice system requires that if the prosecution has employed foul means the defendant must go free even though he is plainly guilty. Where the integrity of the process is fatally flawed, the conviction should be quashed as an expression of the system’s repugnance at the methods used by those acting for the prosecution ... At the heart of the criminal justice system there is a fundamental principle that the process itself must have integrity ... The integrity of the criminal justice system is a higher objective than the conviction of any individual.

This may strike the reader as being more lofty than realistic, and it certainly chimes poorly with the longstanding doctrine of English law that if evidence is relevant, it doesn’t matter how improperly it was obtained. Serendipitously, however, three weeks after the Commissioners signed their report and Zander and Newbold their dissent, and while both were in the press, the Law Lords handed down a landmark judgment. They held that if a defendant has been brought within the jurisdiction of the United Kingdom courts by unlawful means (for example, has been kidnapped rather than extradited), the courts have inherent power to halt the case without inquiring further into it. This is what Lord Griffiths said:

If the court is to have the power to interfere with the prosecution in the present circumstances it must be because the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law ... I have no doubt that the judiciary should accept this responsibility in the field of criminal law. The great growth of administrative law during the latter half of this century has occurred because of the recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that executive action is exercised responsibly and as Parliament intended. So it should be in the field of criminal law, and if it comes to the attention of the court that there has been a serious abuse of power it should, in my view, express its disapproval by refusing to act on it.

The House of Lords adopted the reasoning of the dissenting minority in the United States Supreme Court, which by a 6-3 majority in 1974 had opted to overlook state malpractice. Lord Bridge said:

There is, I think, no principle more basic to any proper system of law than the maintenance of the rule of law itself ... To hold that the court may turn a blind eye to executive lawlessness beyond the frontiers of its own jurisdiction is, to my mind, an insular and unacceptable view ... Since the prosecution could never have been brought if the defendant had not been illegally abducted, the whole proceeding is tainted.

If a wind of change is blowing in our constitutional jurisprudence, this is a gust of some force. Perhaps the real difference between the majority and the minority on the Royal Commission is that the minority perceive the issue of improperly obtained or presented evidence, which has lain at the heart of so many of the recent miscarriages of justice, as a constitutional issue going beyond the guilt or innocence of an accused person, while the majority view it as the curate viewed his egg – if the conviction is good in parts, the taint can be overlooked. The House of Lords, opting for the very form of reasoning dismissed by the majority of the Royal Commission as illogical, appears for the first time to be ready to strike at the root of an unconstitutionally brought prosecution without regard to the question of guilt. The esteem in which the law comes to be held in the next generation may well depend on whether such constitutionalism, rather than the Royal Commission’s legalism, is allowed to develop as the dominant logic of the law.