In October of this year I was invited to address the annual conference of the Criminal Law Solicitors Association (CLSA) in Birmingham. Below is an extract from my speech with my thoughts and observations of life at the coal-face of the criminal justice system.
Guilty until Proved Innocent
When I was first asked to speak to the annual conference of the CLSA and was told that this was the title it struck me that this represents a collective sigh of despair on the part of those who defend people accused of crime and who find so regularly that the odds seem unfairly stacked against our clients.
The Magistrates’ Court
I remain in awe of those of you who do criminal work in the Magistrates’ Court which remains in my view “the bear-pit of British Justice”. My earliest experience in the late 1970s was gained in the Magistrates’ Court as that is where young barristers in London learned their trade.
My eternal dread was of an early finish in my morning case only to be told by my clerks when I rang in that there was a 2pm fight at Tower Bridge MC – no papers, the client will meet you at court at 1.30pm. If you were lucky the Sergeant prosecuting would give you a brief outline of the case against your client – there was no such thing as witness statements – and taking instructions on the allegations consisted of doing so over the rail of the dock with the increasingly impatient bench looking on.
The recent case of Hottak v DPP suggests that not much had really changed in the last 40 years.
So I thought I would review a few of the things that have happened that seem to me to have brought us to the present state. This is not an exhaustive review and I am sure to miss things out that you could add to the charge sheet but for now these will do.
The 1970s were certainly an interesting time to embark on a legal career especially one where I knew from the start I wanted to be on the side of the under-dog. I had barely started at law school before the IRA bombings in Guildford in October 1974 killing five people and leaving sixty-five others inured many of them seriously. This was then followed some six weeks later with the Birmingham pub bombings leaving a further twenty-one dead and one hundred and eighty-two injured.
We are all shaped by the times in which we develop and what is happening around us. For a young lawyer starting out those cases and the conduct of the police involved in them were significant features.
Two of the worst crimes ever committed in this country were then turned from tragedy into outrages by the conduct of the police. In all, 26 dead and nearly 250 injured and entitled to justice. And what happened?
Ten innocent people arrested, six in Birmingham, four in Guildford, beaten up, tortured, denied access to solicitors who could have protected their interests, making false, worthless confessions and between them spending around 162 years in prison for offences there were entirely innocent off.
Meanwhile those who had actually committed these atrocities remained free and unpunished. What sort of justice was that to those ten innocent people and how exactly did that provide justice to the families of all those killed and injured?
And just to prove that gross incompetence was not the sole preserve of the police the British judiciary hardly did themselves proud. At the trial of the Guildford 4 the trial judge then Donaldson J, later to be elevated to Master of the Rolls, bemoaned the fact these four entirely innocent defendants had not been charged with treason which even then still carried the death penalty.
Lord Denning’s “appalling vista”
And many of you will recall that when the Birmingham 6 commenced civil proceedings for the injuries they had received at the hands of the police, Lord Denning considered the prospects that the men might be right, and speaking without the slightest sense of irony he pondered:
“If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, that the confessions were involuntary and were improperly admitted in evidence: and that the convictions were erroneous. That would mean that the Home Secretary would have either to recommend they be pardoned or he would have to remit the case to the Court of Appeal. This is such an appalling vista that every sensible person in the land would say: It cannot be right that these actions should go any further.”
And just to add the final insult to injury Denning concluded his judgment by declaring that this case showed what a civilised country we are because the men had been given legal aid to pursue their claims.
Meanwhile the conviction, also in 1974 of a troubled young woman named Judith Ward, who seems to have been a fantasist with a penchant for claiming to be a member of an IRA active service unit, for killing twelve people on a coach on the M62 in February 1974 rather slipped under the radar at the time. It was not until her successful appeal, 18 years later in June 1992 that the extent of the failure on the part of the prosecution to make proper disclosure of unused material was revealed.
I start with those cases not just because they did to some extent frame the milieu in which I was schooled as young lawyer but also because they led to some significant developments in English law.
Change is needed
Shock and outrage at the treatment of the Birmingham 6 and Guildford 4 together with the wider behaviour of the infamous West Midlands Police Serious Crime Squad was undoubtedly instrumental in forcing government to accept that a radical overhaul of the way the police treated suspects in custody was long overdue. The case of Judith Ward was one of a number of such cases that put pressure on government to change the law on disclosure about which more later.
One good deed – PACE 1984
The Police & Criminal Evidence Act [PACE] 1984 came as a terrible shock to many police officers. It came into force in 1986 and it took several years and a number of seminal decisions in the Court of Appeal before the police finally got the message. Access to a solicitor meant exactly that. It meant an end to the practice known as “verballing” at least in formal taped interviews. And there can be no doubt that PACE revolutionised practice in police stations.
Goodbye pocketbook verbals
I started my career just before the end of notebook interviews. Some of you may also remember them. In those cases a police officer would claim that his note, covering a whole two pages of a small pocket notebook and which had taken him all of five minutes to read out, accurately represented every word that had been said in the course of an interview that had apparently taken two hours.
And goodbye contemporaneous notes
Before PACE was enacted there was a change in the practice of recording interviews with suspects and the old pocket books were replaced by what were called “contemporaneous notes”. Like the old pocket book entries these purported to record every word spoken in the course of the interview. Invariably the notes were beautifully written giving every indication that the author had had plenty of time to write them down.
Invariably the interview consisted of about ten pages. The police version was always the same. After a long period of stout resistance to police interrogation during which the Defendant had stoically denied the offence suddenly on about page 8 he had been overcome with his wickedness, had broken down and confessed all. His confession was expressed in one of the various terms available in the Hendon Police College Book of Verbals containing such gems as “It’s a fair cop guv” or “I can’t tell I lie, it was me what done it.”
The defence too was always the same. I remember many cases in which the suggestion was put along the following lines: “Officer I suggest that at the end of the interview you showed my client the notes for him to sign. But when you did so only the first page was visible. Of the other pages, only the foot of the page where he was to sign was visible to him. Page 8 was blank at the time he signed it. After he had signed you filled in the relevant page and made up the alleged confession.”
Juries became more and more cynical about the evidence of police officers and I remember prosecutors in London where I worked at the time who would despair of getting a conviction if the only evidence came from police officers claiming they had obtained a confesison.
So PACE changed a huge amount and very much for the better.
What have the Romans ever done for us?
But that was 1984, now 32 years ago and at the risk of provoking a response rather like that in the film “The Life of Brain” when Reg ask the question “what have the Romans ever done for us?” it is very hard to think of a single provision in an Act of Parliament much less an entire Act which was designed to help the plight of those who face the full might of the state when they are arrested and charged with a crime.
A litany of attempts to bump up conviction rates
In the meantime we have had measure after measure clearly designed to make life more difficult for those accused of crime – in short designed to bump up the conviction rates. Whilst that might be a laudable aim, it is a sad fact evidently lost on government ministers that you can’t increase conviction rates just of the guilty, it means sacrificing the innocent as well and bit by bit the old adage that it is better that a hundred guilty men go free than that one innocent man should be condemned gets turned on its head.
And so we have had
- the end of the requirement for a warning about the dangers of convicting in the absence of evidence to corroborate a complaint of a sexual offence, Criminal Justice & Public Order Act [CJ&POA] 1994, s.32. This may not have been greatly mourned at the time but at that time there were few if any prosecutions for sexual offences going back decades. Now we are in the grip of a moral panic about the extent of sexual offending with no limit on the age of allegations being prosecuted the decision to abolish the requirement for at least a warning about the lack of any corroboration for the evidence of the complainant looks more short-sighted than ever.
- adverse inferences from exercising what is still called the “right to silence”, CJ&POA 1994, S.34 [interviews] and s.35 [evidence]. I don’t want to overegg this because I am personally in some doubt as to whether juries take much notice of invitations to draw adverse inferences although I suspect the impact in the Magistrates’ Court is almost certainly greater. On the other hand I am sure there are cases in which the jury will have been influenced by the fact that the defendant was silent in interview or didn’t give evidence and will have held their silence against them and that should worry us all.
The right to silence
The right of silence, the right not to incriminate yourself remains in my view, a key pillar of any society that purports to have fair trials and to follow the rule of law. If the prosecution cannot prove a case against someone without getting a confession then my view is the prosecution should not go ahead. I don’t believe that way leads to the end of civilisation. The Americans thought the right not to incriminate yourself was so important it is enshrined in their Constitution, drafted in the 1780s, and I do not think there is any evidence their criminal justice system functions any less well on that account. All this courtesy of one Michael Howard, universally regarded, for a time at least, as one of the worst Home Secretaries of modern times.
- Defence statements also attracting adverse inferences, Criminal Procedure & Investigations Act [CPIA] 1996, whether you don’t give one or more likely, give one which doesn’t contain some details later relied on by the defendant in court.
Those of you who were in practice when this provision came into force will no doubt recall the visceral objection this provoked amongst the defence community. It seemed then and to me still does to fly in the face of an adversarial system. Although of course therein lies another issue. There are those, particularly amongst the higher judiciary, who think we ought to move more towards an inquisitorial system in which there is greater openness between the parties. There are obviously senior judges who think you can run criminal cases on pretty much the same lines as a High Court civil action, forgetting of course that one party to criminal cases has no interest in helping things to run smoothly, exemplified most obviously in the Criminal Procedure Rules.
The reality in criminal trials is that it is very rare for the Crown to be taken by surprise by the defence that is run at trial. For all the judicial fulminations there is still no actual duty to serve a defence statement if your client declines to do so and frankly more often than not all that serving a Defence Statement achieves is to provide the Crown with a document on which to cross-examine your client, especially where the Defence Statement varies from what if anything was said in interview.
The Defence Statement and the requirement to serve one was sold to us as a sort of quid pro quo for greater disclosure, the idea being that if the defence set out their case the disclosure of relevant material will follow.
Disclosing unused material – or not
Disclosure remains a serious problem. At the time the CPIA became law the argument was that there had been serious miscarriages of justice because of a failure on the part of the prosecution to disclose material that might help the defence. Many of us thought the whole point of the CPIA was to try to deal with this problem.
But what the CPIA did was to replace a system in which it was the police who decided what should be disclosed to the defence with a system in which it was for the police to decide what should be disclosed to the defence. In other words no real change at all.
For all that we get lengthy schedules of disclosure there remain too many cases in which information is not disclosed that the prosecution should know full well ought to be disclosed because it easily meets any test for disclosure. Leaving disclosure in the hand of one party to the proceedings is obviously not the right solution. There were concerns raised by the police at the time about “handing the keys to the warehouse” to the defence but frankly it is the defence and only the defence who are in a position to know what material the prosecution has which might assist the defence case. Until that concern is addressed the problems will persist
Restrictions on proper cross-examination
- s.41 Youth Justice & Criminal Evidence Act 1998 limitations on legitimate questioning in sex cases.
You don’t have to be a fan of Donald Trump’s approach to sexual behaviour to realise what problems this was likely to throw up. In fact as you will no doubt recall from R v. A (No.2) s. 41 was initially interpreted so strictly that it prevented a man who claimed he had been in a relationship with a woman for some time from referring to the occasions when they had undoubtedly had consensual sex in order to explain his belief that she was consenting at the time of the alleged offence. The House of Lords declared the section incompatible with the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights and said the section would have to be “read down” in order to avoid gross unfairness. That section of course has caused plenty of controversy as the recent re-trial of Ched Evans shows.
I am not for one second suggesting we should return to the days when apparently some defence advocates thought a good way of winning the case was to humiliate the woman complainant with questions about what underwear she was wearing at the time. Equally however we cannot allow what has to be a careful compromise between the rights of both parties to become so one-sided that properly admissible evidence is excluded on the specious grounds that this only adds to the suffering of the complainant and merely compounds the suffering caused by the alleged offence. Allegations cannot and should not be accepted at face value. They must be tested in court by thorough and appropriate questioning.
- Bad character, Criminal Justice Act [CJA] 2003. For as long as any of us can remember the bad character of a defendant had always been kept out save for certain exceptions because everyone accepted that the prejudicial effect of a jury trying a case knowing that the defendant had form for the offence charged made his chances of acquitted disappearingly small. So when David Blunkett got his chance to put Tony Blair’s famous claim that Labour was going to be “tough on crime and tough on the causes of crime” into effect what better way to bump up the conviction rate that allow the prosecution to tell the jury “he’s done it before”? That New Labour mantra when first touted suggested the Labour party was actively interested in seeking out the causes of crime and criminality but it rapidly morphed into being “tough on crime and tough on those accused of crime” and could just as well have been a policy Michael Howard would have been proud to call his own.
- Hearsay, CJA 2003 – the same rationale applies. For centuries it was one of the corner stones of English law that hearsay evidence with all the risks about unreliability was not allowed save for a very few exceptional circumstances. Again hearsay evidence is something the Americans prohibited in their Constitution. Now, in this country, the law allows the police to tell the witnesses they don’t have to come to court if they claim they are scared of the defendant or his mates. Hearsay evidence may be very convenient to the police and prosecution but it’s widespread use is not compatible with an adversarial system. Its increased use however is all part of the drift towards a more inquisitorial system in which everything vaguely relevant gets thrown in, the judges think it best to leave it to the and the jury are then asked to sort it out.
Cross-examining in a vacuum
- Section 28 YJ&CEA 1999 allows for cross-examination of complainants in certain cases, most usually those involving sexual allegations to be conducted in advance of the trial and after your homework has been “marked” by the judge.
- This is not something I have personally be required to do but as I am sure you will know some judges see this as a chance to emasculate a half decent cross-examination in the full knowledge the Court of Appeal will back them up. This is a provision that only someone with no experience of trials could have dreamed up. Trials are dynamic processes. How the evidence finishes up at the end of the case is often quite different to how it looked at the start. Questioning a witness in an evidential vacuum in advance of the trial is a travesty that our forebears would have regarded with horror. It is all part of the new cuddly idea that witnesses in sexual allegations can’t be making it up and have to be believed for fear of doing them even more damage. It has no place in an adversarial system where allegations must be challenged robustly.
No advocate who wants to win the case can risk turning the jury against him or her. Of course questioning has to be sensitive. You can’t cross-examine a five year old making an allegation against her step-Dad like you can an armed robber. On the other hand we don’t need witnesses being molly-coddled in the way envisaged by s.28.
- And all designed to bump up conviction rates with never a care as to whether this means bumping up the rate of wrongful convictions.
Police officers on juries
- Police officers on juries – what is that all about? How can that possibly be fair?
It may be summary but there’s not much justice
- Hottak v DPP – Divisional Court upholding the finest traditions of British justice – no wonder they call it summary justice. Well it may be summary but there is precious little justice involved. Such judgments bring the criminal justice system into disrepute.
The threat to jury trial
- The threat to the existence of jury trial. Under attack at the moment as part of a periodic assault by some radical feminists who argue that sexual offences are unsuitable to be tried by ordinary members of the public with their prejudices and pre-conceived ideas and that they should be tried by a panel of so-called “experts”. And whilst we’re at it, lets reduce that pesky burden of proof to the civil standard.
- On the other hand there are those who would love to do away with jury trials in all cases and who use every instance of jury misconduct particularly in relation to the internet or social media to say “oh well look its perfectly clear we cant have jury trials in the internet age because you can’t stop juries from going on the net.”
Dealing with the internet like grown-ups – a proposal
- There is a solution beyond blindly hoping for the best on the one hand or threatening jurors on the other hand. In the USA because of the First Amendment right to free speech, pre-trial publicity is far more extensive than in the UK. So they ask potential jurors what they know about a case and what they have heard and they then ask them whether, given what they already know about the case do they feel able to comply with the juror’s oath to try the case according to what they heard in court? Of course their answer isn’t the end of the matter. The judge and counsel have to assess the answers given and either side can challenge the juror.
- I have no doubt such a suggestion would be met with incredulity by the Ministry of Justice. It will mean that jury selection takes a little longer. It will require a few more jurors to attend court. But not in most cases where there has been little publicity anyway. And what are we doing here? We are selecting an impartial jury and surely that is sufficiently important to make it worth any extra time and expense. It would mean we are approaching this 21st century problem like mature adults. It would finally put to bed the fiction so beloved of the senior judiciary that jurors always follow the directions of the judge and this includes warnings not to do research on the internet, when we all know from experience that such warnings do not always work.
Changing the law on loss of control
Amendment to the rules on loss of control (the old defence of provocation) in the 2009 Coroners & Justice Act 2009 taking sexual infidelity out of the equation. No one condones domestic violence. When it results in the death of a woman it is particularly shocking. But equally every one knows than that nothing is more likely to provoke a spontaneous outbreak of anger and violence than suggestions of sexual infidelity. Denying an accused a defence based on that simple fact of life is unjust.
I have been pretty rude about some politicians on the right like Michael Howard and David Blunkett so to equal things up let me remind you that amendment was the parting shot of the government career of one Harriet Harman who was once a legal officer at the National Council for Civil Liberties NCCL, the forerunner of Liberty.
Criminal Legal aid
You have already heard from Lord Bach. Now in charge of a review into how LASPO is working. That would be the same Lord Bach who as a Labour minister under Blair/Brown was the architect of BVT would it? The man who set us on the way to competitive tendering, Eddie Stobart Law and helped push through previous cuts to the paltry rates of pay for criminal solicitors and advocates including an entirely spiteful 13.5% cut to criminal legal aid rates just as they departed office in 2010. Hmm.
A modern parable about legal aid and those fat cats
The £194 case
Four of my colleagues in chambers were recently involved in a case in the crown court. The accused was charged with theft from his employer to the value of over £1,500, not an insignificant sum if he had been convicted. As was his right he had elected trial by jury. The first hearing was in July 2014. In September that year a PCMH was held. The case was then listed for a three-day trial in December 2014.
The barrister prepared the case for the trial. On the day of trial there was no court available to deal with the case so it was adjourned. After defence representations that the prosecution case was hopeless and that there was no realistic prospect of a conviction the judge, who seems to have been sympathetic to this submission, told the CPS to review the case. It appears that they did not do so. That is not uncommon.
In April 2015 the case was listed for a mention and a new trial date was identified in May 2015. Since the original advocate was not available the case was passed to a second barrister. He prepared the case fully for trial. On the afternoon before the trial was due to begin the court pulled the case from the list and it was adjourned. Six months later in November the case was again listed for trial. The second barrister prepared the case again for trial and this time it was adjourned on the day of trial.
A third barrister was briefed for another mention hearing and the case was listed again for trial in January 2016. As none of the previous barristers was available a fourth barrister was brought in to take over the case. That barrister had a conference with the client and prepared the case for trial, the fourth occasion on which it had been prepared for trial. On the afternoon before the trial was due to begin the court decided the trial could not go ahead and the hearing became a mention instead of a trial.
Finally the case came on in June 2016, nearly two years after it had first been listed. This was the fifth time the case had been listed for trial and the fifth time counsel had prepared the case for a trial. Remarkably after all this time it seems that finally the CPS had got the measure of the case and the prospects of a conviction and they offered no evidence and the defendant was formally acquitted.
So after many hours of hard work by four different barristers preparing the case for trial on five separate occasions how much money do you think was wasted in paying the defence barristers on this utterly pointless venture? The answer? £194! Yes one hundred and ninety four pounds all in, to cover the fees of all four barristers. Out of that the four barristers had to pay their travel costs, in this case typically more than £20 on each occasion and 20% of their share of the £194 fees to Chambers to cover the costs of the staff and general administration of Chambers. If you work out the hours of work done, the days in court and the time for travelling to court it means the lawyers were working for a few pounds an hour. Once travel costs are taken into consideration the barristers were actually losing money by doing this case at all. If Mike Ashley paid these rates there would be an outcry.
Punishing lawyers for doing legal aid
The justification for such derisory fees is said to be to ensure that defence lawyers don’t allow their clients to “play the system” by electing trial in the crown court to spin things out only to plead guilty at the last moment. It is suggested that threatening to pay so little will act as an incentive to the lawyers to ensure the case is dealt with “expeditiously” and that those who are guilty own up at the earliest stage. Except that this man was innocent, a fact finally recognised by the CPS only after two years and five listings for trial. The CPS lawyers don’t care. They are employed and their wages, poor though they, are not dependent on the result of the case. So what has happened is that the defence lawyers get penalised because the prosecution case was so weak that the defendant rightly decided he would fight the case until the prosecution saw sense and gave in.
I’m not suggesting that such fees are representative of the scheme as a whole. Thankfully that is not the case but there is no justification for such pathetically low fees in any circumstances. Nor is it likely that any one barrister will find themselves in this situation every other week but I suspect most junior barristers will have had to put up with this at some point in the last few years.
I can’t imagine any other profession putting up with this. This is little short of scandalous. It shows how pathetic the leadership of the Bar who purport to represent barristers has been over the years that they have been prepared to tolerate this state of affairs. But it is the Ministry of Justice that is principally to blame. The current fees scheme has not been revised for almost ten years and all we have had in that time have been further rounds of cuts to already low rates of pay.
As long ago as October 2015 the Bar Council submitted proposals to the Ministry of Justice [MoJ] which involves no new money but claims to have achieved a greater degree of fairness in the fees structure but shuffling various sums of money from one place to another. Very laudable I am sure but a poor substitute for a proper revision including a decent pay rise. Nonetheless the MoJ are now sitting on a revised RAGFS scheme and there has been no indication of any progress.
The ongoing scandal that it LASPO
Of course the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) is a scandal. Whole areas of law including parts of housing, debt, employment, immigration, and welfare benefits taken out of scope of the LA scheme. At least eleven law centres have had to close, making it even more difficult for the poorest to get justice, and providers of social welfare law have declined in numbers as without legal aid both law centres and solicitors firms have been deprived of a large amount of income. Tens of thousands of citizens, including many of the most vulnerable denied access to justice on that account. Lord Back’s review shouldn’t take long to work that out and what needs to be done to remedy the problem. But as we all know giving the public access to justice is all fine and well but not much good if they can’t find lawyers prepared to do the work because the rates of pay are scandalously low.