[A-List] UK state: people's courts

["Michael Keaney" <michael.keaney@xxxxxx>]

Yesterday I mentioned what David Blunkett was doing to the criminal justice
system in England and Wales. Today it is reported in the Herald that
Scottish First Minister has decided to "get tough" with the judiciary,
demanding tougher sentencing. To get a better idea of what Blunkett is
doing, and thereby polluting the rest of the UK with, this article offers a
good enough summary to provoke alarm among those who thought that it was
just the US Patriot Act that was an affront to "democracy".

-----

Feasting on Power
John Upton continues his survey of the criminal justice system under David
Blunkett
London Review of Books, vol. 25, no.13
10 July 2003

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 i
ncrease 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.

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