Ten Years On, Unfinished Business. Well, the unfinished business actually has a very strong relationship to something else that Iíve been doing this year. Whilst in a sense itís sub-judice because the report isnít out, there is one topic arising out of it which bears on the unfinished business and thatís the Lawrence Enquiry and its relationship to one of the main failings of the Criminal Justice system really since I started. And Itís a failing that Iíve highlighted before but absolutely nothing has been done about it.
And itís really where the system begins because, a jury in a court is only as good as the material thatís given to it. The bottom line is - what is the evidence that a jury or a court is looking at, if it hasnít got a jury,?
That evidence in our system primarily is culled, gleaned, assembled by the police. Now what nearly all the miscarriage cases demonstrated was a very primeval and basic instinct that has permeated prosecutions from the beginning of time. Investigators, like it or not, have got a set of preconditions which they impose on a set of circumstances.
Theyíre not alone in this whole process in doing that. Itís this whole idea that you approach in fact with a hypothesis and you then as it were make the facts fit the hypothesis. Itís a very serious and a very deep-seated reaction - they want to make things fit.
In the case of the police, itís what Iíve always called in the past targeting. They get in their minds who they think are responsible. It may be that theyíve got that from all sorts of sources, some reliable, some unreliable, often, more often than not, unreliable. But it doesnít really matter where theyíre getting it from. Theyíre targeting. In many of these cases it has led to a kind of short circuit investigation. In the old days that lead to confessions.
It is interesting to note that since all the legislation on them, the confessions seem to be far less favourable now. It canít be said that people arenít confessing as much now as they were before, so one has to be looking at how these confessions came about in the first place.
However weíre not into confessions any more. Thatís not the kind of evidence thatís being produced now. These days, there's a different kind of evidence. Nevertheless, the procedures are very much the same and thatís the root problem. I'm not suggesting it happens all the time and Iím not suggesting it happens in every single investigation, but where there is pressure, a police force on many major investigations can operate on a very old standard.
That is exactly what the Lawrence Enquiry has revealed. Without pre-empting the report which is due out in the New Year, one can say that what has been uncovered is an unhappy state of affairs. Senior officers just didnít get anywhere near the truth - although they had the material at a very early stage which would have enabled them to get near it. But they didnít operate on what they had - they operated on another set of preconditions.
As you know, the senior officers have been exposed in public. Yet those senior officers went on to say, "Weíve done everything fine! No problem." Thatís what they said to the Lawrence family. Thatís what they said to the public, even to the Inquiry. And had it not been for an inquest, had it not been for the Lawrences repeatedly saying, ĎExcuse me, Iím afraid we donít accept this " weíd still be saying it now, that there was nothing wrong.
What's more, the police claimed they had had an internal enquiry headed up by a man called Barker. Barker was the man who the Chair stopped in mid stream and said heíd heard enough from him, adding that he didnít find the evidence credible. So much for the internal review that was being used to say to the public, ĎListen, weíve got it right. No problem.í.
What some of us have been proposing is that there should be en external figure, not the DPP, not the CPS, who is not a police officer, who is in fact supervising investigations, at least providing the double check all the way through.
Now in the past Iíve been suggesting perhaps boringly because Iíve repeated it so many times the juge d'instruction system that they have in France. I donít mean the whole system but just that element of it. However, the proposal that is now before the Lawrence Enquiry is in fact for another commission. What is being suggested is that there should be a criminal investigation commission. It would be a standing commission to which people can go and say, ĎListen, this investigation isnít being done properlyí.
The second area of reform I would propose concerns forensic science. It been at the cause of many of the miscarriage of justice cases. One example is the case of Kevin Callan. He is a young lorry driver, who was living with a woman, with a seriously disabled daughter just four years old. Callan was convicted of murder.
It was suggested that the cause of death was that he had shaken the young child in such a way that she had a subdural haemotoma on underneath both sides of her head. He denied the story throughout the trial - but he was convicted largely on the evidence at trial from pathologists.
He was convicted, though he denied it all throughout. There was a rejected first appeal first attempt. However from a prison cell he alone, without lawyers, decided, ĎIím not accepting this. Iím not rightly convictedí. And he finally managed to discover what was wrong. In other words there were the wrong experts at trial. They were pathologists instead of neurosurgeons who knew how to interpret injuries of the kind.
In the end he discovered a neuro-surgeon whoíd retired living in New Zealand. He he did it through the prison library, looking up names and addresses. So he went back to the Court of Appeal. But they said "Go away. Second bite of cherry. You could have done this first time round. No appealí. In my opinion, the single judgeís refusal of his application was a travesty.
However, Callan didnít give up. He found himself a solicitor called Campbell Malone and eventually I joined him - and we got it back in front of the Court of Appeal. When we finally got back there, the prosecution caved in! They caved in because, theyíd taken further instructions from various other forensic scientists and Callan's point was right.
The subdeural haemotoma was perfectly consistent with the explanation Callan had given of a disabled child who found it very difficult to avoid knocking into furniture, falling downstairs and falling off slides. Callan has written a book about this which I recommend. Itís fairly short, called "The Kevin Callan Story".
The Callan case illustrates something that is missing from our system - a forensic science institute. Before he died, Lord Taylor was going on about this - and even the Royal Commission chaired by Lord Runciman suggested the idea. We need a forensic science institute which would feed our university forensic science departments - of which I think still we only have two.
We should have properly trained forensic scientists, properly trained lawyers and judges. But often we're not even sure which branch of forensic science are we dealing with.
You need to know which branch of forensic science youíre dealing with and then you need to know what the scientific method is and you need to know what principles to employ. We need a whole system of education - yet some law students feel it isnít part of their course.
Forensic Science the poor relation. It's very poorly served. Itís got about half a dozen independent forensic science consultants who are operating out of their garages.
And finally, disclosure.
I feel very strongly indeed about this. I feel pretty strongly about police methods and forensic science, but this is the worst of the lot because the underlying theme in all these miscarriage cases is non-disclosure. It links in with investigation, and with forensic science.
The Judith Ward case is the supreme example of what's wrong with disclosure. In that case the Court said,
ĎSubject to PII, subject to sensitivity and national security everything should go to the defenceí.
Since that time the courts and legislation have been desperate to turn the clock back again to insure that this doesnít happen.
The Criminal Procedure and Investigation Act 1996 has completely changed disclosure. We are now back in a situation in which the prosecution has essentially the discretion to decide how much weíre going to be told. And itís all done on a staged basis.
The disclosure system that we now have is pre- Judith Ward.
Earlier this year there was a case in the Court of Appeal of a man called Mattan who was executed, unfortunately, in 1952. This was a case that was referred by the Criminal Case Review Commission. Just before the appeal, one of the lawyers I was working with just happened to find a slip of paper in the files. On it he noticed that the officer in charge of the case, who is now dead, had written in faint pencil who was really responsible for the murder.
That information had never been disclosed. And even earlier this year it was not going to be disclosed - on the basis that under the new regulations it doesnít actually have to be disclosed . After all, itís part of a police report and police reports donít have to be disclosed.
I havenít seen anything coming out from the present government that indicates a desire to reverse all that. Jack Straw welcomed these proposals for disclosure under the new scheme. I would like to see them repealed and Iíd like to see the Judith Ward judgement put into statutory form.
Finally, I wish to mention the Criminal Cases Review Commission. Itís a very important body and although we all had reservations about the people appointed and how they were going to operate and the funding and so on, in my view they have, so far, acquitted themselves extremely well.
Theyíve got a very heavy case load and I think that of all the referrals back, they've so far only lost one - not that thatís necessarily a criteria of whether theyíre doing well but itís a starting point.
In my view they have the right approach. However, there are problems to address. One of the major problems that still faces an applicant is this; Youíre in a prison, you want your case reopened. So you write to someone.
Hundreds of letter go to Justice and Liberty. I personally get hundreds of letters. How do you deal with these?
You send them off to the Commission. But if you want the Commission to take your case, you have to have it assembled properly, put into some kind of manageable, digestible form with the best points up front. That usually involves engaging a solicitor but thatís the old problem - no funding.
The few solicitors whoíve been in this field for a long time basically have to do it for nothing. And thereís no guarantee that theyíll find anything that they can reopen the case with.
There's a serious risk that they could do months sometimes years unravelling a case with no payment at all. The only funding that is available is what comes under the Green Form Scheme. Thatís two hours of advice. That's not enough, it gets you nowhere at all on reopening a case. You can apply for an extension but theyíre extremely tight about extensions.
So funding for the applicant in getting legal advice is very important. It may actually save the Commission time and effort, for the lawyer will vet the case and may say to the person, ĎWell Iíve looked into this and thereís really nothing here and I donít think you stand a hope in whatever. Thereís no chance of getting this case back to the Commissioní.
There is a further stage. Supposing your case gets to the Commission. They have a problem - which is that they have no power themselves to reinvestigate a case. Now what I am putting forward was all discussed during the formation of the Commission and the idea has been rejected - I think wrongly so. The Commission has no power to reinvestigate. What theyíve been told is theyíre going to operate exactly as the PCA the Police Complaints Authority. Well everybody knows what the track record of the PCA is.
All the Commission can do is appoint another police force. However, who appoints the officer in charge of the police force investigating the police? - The officer in charge of the original investigation. That will not do.
What I and others have suggested, and I repeat now, is that if youíre going to set up a commission and youíre going to spend money and you mean business, you should give that Commission the powers similar to the Commission in Hong Kong which dealt with anti corruption measures. It should be a body that is set up that is not another police force, but a quite separate entity. Of course thereíll be some ex police officers in it and there will be some people who are not police officers. It should conduct a separate investigation for the Commission when such is required, probably not on all the cases under review.
Disclosure at the Commission level is providing a knotty problem that nobodyís thought of. They are what might be called an inquisitorial body. That's almost unknown to British law in the sense that we have an adversarial system.
They have quite rightly come to the conclusion that to re-investigate a case without appointing another police force, they will need all the material. So they've gone to the police and said "We want all your material. Everything. Absolutely everything including stuff covered by PII if there were PII hearings in the original trial. Everything."
The knock-on effect is theyíve now turned to the defence and said, ĎRight, we want all your stuff as well.í This presents problem that has not been properly confronted. The Runciman Commission is to blame for this I'm afraid, for not thinking it through. All they did was to endorse the suggestion there should be a commission but they did none of the sort of nuts and bolts of working this out and nor did Michael Howard.
The Commission and defence lawyers have now been put in this parlous state - for it would mean waiving privilege.
You may need to say to your client " Are you prepared for the Commission to have all the papers right back to the beginning? Because if you donít waive it everybody will think youíve got something to hide. "
That means that the original trial solicitor, not usually the same person, will have had to warn any potential client along the lines of " Whatever you tell me may be subject to disclosure in the long run for this reason. If we lose this case all the way up to the House of Lords or however long it takes and then you go to the Commission and ask for it to be reopened, theyíll come along to you and ask you to waive privilege and if you donít it wonít look too hot so the fact is, we may have to disclose all these filesí. No solicitor has had to do that before.
The effect of such disclosure will begin to effect the relationship that solicitors have with their clients. That relationship has enjoyed a long-standing privilege which everybodyís acknowledged. Itís central to the working of the adversarial system. No one thought about that when the Commission was set up and its providing a major stumbling block.
I am honoured to be asked to speak at an event commemorating the life and work of someone who dared to ask awkward questions at a time when it is not nearly so easy as it is now.
But I confess that I am here under false pretences.
The National Consumer Council does a lot of work on civil justice, but we have traditionally left the criminal side to others. Therefore my views tonight are purely personal ones.
I intend to gaze at the tea leaves of current civil justice reforms and try to predict a future for criminal justice. I have been closely involved in Lord Woolfís Access to Justice Review, where the objective was to make the system more responsive to the needs of the end user, the litigant.
No one could deny that there were problems with our Rolls Royce system of civil justice.
It demands an increasingly high price from those who pay for it with their money, their time, their emotional energy, and in the worst cases their sanity.
Over the years I have met people who have been so badly scarred by their experiences of trying to get justice, that they will never be able to put it behind them. It continues to preoccupy them and blight their lives and the lives of their families.
But some would say that even these people have had justice. Although it may have taken many years, every single thread of their case has been examined and cross examined before a decision was reached. They have had the benefit of years of expensive and incomprehensible law.
Some of them remind me of the remand prisoners I interviewed in the early 80s when I wrote a critique of the remand system for the Prison Reform Trust. I met people who sat in prison for months or years while they too had the benefit of our Rolls Royce justice system, while every thread of their case was painstakingly assembled so that it could be examined and cross examined.
In the end, they may or may not have had justice, but they certainly had a lot of law.
In civil justice at least, we make a big mistake by equating justice with law. It makes us focus on procedures rather than outcomes, on processes rather than on people.
It legitimises the use of incomprehensible language and procedures that make it extremely difficult for ordinary people to be active participants in making their own cases. It denies them the information they needed to make informed choices.
I suspect the same could be said of criminal justice. When I was looking at the remand system, I was struck by the paradox that a system dedicated to punishing people for not behaving responsibly, itself operated in a way that actively prevented them from taking any responsibility.
It was also a system where the needs of the lawyers, the courts and the prisons took precedence over the need to treat people justly. Reading recent speeches by the Lord Chancellor and his minister, get feeling that plus ca change.
There have been some interesting studies in the States of procedural fairness. One study I read was about people involved in tax hearings. It found that they were perfectly capable of judging the process in isolation from the outcome and saying what was and was not a fair procedure.
Before any of us goes to the wall to defend our existing rights and procedures, and as we begin to implement the Human Rights Act, we need similar research here to determine how the ordinary citizen defines fairness and justice. It may be quite different from the way lawyers define them.
So that is my first suggestion for discussion: Are justice and law the same thing? Are we sure that when we are purporting to defend justice, we are not really defending the legal system and those who earn their livelihoods by it? In the next ten years, should we be consulting citizens and users of the criminal justice system about what reforms they think are needed instead of assuming we know what is best for them?
Now I would like to look briefly at some of the developments as outlined in the Queenís Speech. We are promised an Access to Justice Bill that will be published tomorrow in draft for consultation. It appears to bring the civil and criminal justice systems closer together. There will be one Legal Services Commission to oversee funding for help to users of both systems.
This opens up interesting possibilities for new ways of dealing with criminal cases. Letís for a minute put them in a consumer context by viewing them as disputes between the accused and the State.
The government is proposing some sort of public defender system, but why canít it go further? Why couldnít we have a criminal cases legal service.?
A person accused of a crime, who does not know what to do, would first see an intake and referral team. The team would ask what the accused wanted to achieve, and discuss the alternatives for the plea, the method of resolution and the sentence.
Together they would devise an action plan for the accused, with appropriate advisers to fit the course selected. Different advisers might be specialists in particular types of resolutions. The accused would submit a proposal to the court for a way to resolve the dispute. When the accused pleaded guilty, he or she would also submit a proposal for a suggested redress or punishment.
Intake and referral would not be compulsory. People would be free to decide for themselves who they wanted help from. But it would be an option available.
In this scheme of things, along with help to make informed choices, the accused would supplement advice with a range of information. In the near future, people will be able to access the internet through their televisions and get general legal information and specific information about their own cases from their lawyers. They will also be able to track the progress of their cases through the courts. And they will be able to find out about the outcomes in similar cases to help them decide what to do.
But coordinated help and good information is only part of the solution. Another part is a court system that gives priority to the needs of the end user. New case management practices would have the objectives of reducing delay, levelling the playing field between the accused and the State, and ultimately doing justice. All proposed reforms to procedures would be tested against these objectives. There would be fast track procedures for appropriate cases: their design would be informed by the trade offs people were prepared to make between speed and thoroughness. A major national study in procedural fairness would give us that information.
Another essential element would be quality control. Concern has been expressed over many years about the variable quality of legal help provided under legal aid in both civil and criminal cases. In the future it looks as though legal aid in both sectors will become a service bought by the State in the form of contracts operated by a selected group of suppliers. But will those suppliers be selected because they have a track record of providing a good service to their customers, or for other reasons? How will performance of contracts be monitored?
A crucial factor in judging the quality of legal services is the satisfaction of the end user. Yet the civil justice system has been slow to develop appropriate measures of client satisfaction and I doubt if the criminal justice system has either. Criminal barristers have always led the resistance to any sort of accountability by barristers to their real clients, on the grounds that people who lose court cases will automatically think they got a poor service. But I believe that this is a smokescreen. People are well able to separate the quality of the service from the outcome and can be quite clear about what they want in terms of client care.
The changes I have set out will involve a rather large cultural shift. We are all pretty much wedded in both the civil and criminal justice systems to the adversarial approach. It pervades our literature, our media, our thinking and our practice. Yet the adversarial approach to meting out justice appears to have its shortcomings when it comes to discouraging repeat offending. And Iím not surprised. To an outsider, the hide and seek approach to exchanging information is not the obvious first choice for resolving a dispute constructively between the accused and the State. Instead, it increases the sense of alienation. If the ultimate aim is to prevent crime rather than contain it, then we need to find alternatives to the current trial, conviction and punishment model that stress joint responsibility, mutual understanding and cooperation.
One alternative slowly gaining ground in the civil justice system is mediation. I donít see why it couldnít be employed to good effect in the criminal justice system as well. I know there are pockets of experimentation, such as the restorative justice conferences being piloted by the Thames Valley police. But the biggest stumbling block to the growth of mediation in civil justice is the resistance of lawyers Ė who prefer to stick with what they know, the good old adversarial system, whether or not it is in the interest of their clients to try a more cooperative approach.
And so they discourage clients from trying anything else, sometimes for extremely dubious reasons such as advising them that agreeing to mediation is a sign of weakness . I could well be wrong, but I am not optimistic that there is more enlightenment on the criminal side of the profession.
So, just to sum up, I have very roughly sketched out a plan for thinking about the future of the criminal justice system, based on treating the accused person as a consumer and applying the consumer principles of access, choice, information, fairness, safety, and representation. Advice and information would be delivered through a criminal cases legal service whose goal would be to enable the accused to make informed choices and proposals to the court about pleading, resolving the case and nature of the redress.
There would be good quality alternatives to trial and punishment that move away from the adversarial approach toward partnership and cooperation.
When there is no alternative to court, there would be hands on case management of trials by magistrates and judges. There would be fast track trials for appropriate cases, involving trade offs between speed and thoroughness, determined according to a shared notion of procedural fairness.
We would use information technology and generalist advisers to provide better information for users about their options. Specialist advice and representation would then be available to fit the option they chose. The quality of these services would be monitored according to measures that are important to the customers.
Before I end, I would just like to say another word about giving the end user a voice. On every body that makes policy or overall funding decisions in the criminal justice system, there should be a substantial number of lay people representing the end. Historically, I think I am right in saying Ė but correct me if I am not Ė that most bodies responsible for reform to law and procedure have come from a narrow band of life experience, and therefore have confined their reforming zeal to rather narrow procedural reform rather than sweeping cultural changes. Why, for example, do all of the Law Commissioners have to be lawyers? How often are there user representatives on Royal Commissions? That needs to change, and to change immediately.
In this model, the Legal Services Commission would have representatives of all stakeholders, including the end users and the public at large, with the non professional Ďpublic interest membersí in the majority, to prevent any provider interest from prevailing. This is the preferred model, for example, for ombudsman schemes.
But even that might not be enough. Naomi Sargant has raised the question about whether there needs to be a legal services council to represent the interests of end users of criminal justice system, much like the proposed expanded consumer councils being set up to represent end users the privatised. If we are looking to the future, then perhaps that should be our starting point.
Oscar Wilde observed in "An Ideal Husband" that "private information is practically the source of every large modern fortune" and lawyers who deal every day with the media might add on every single one of those days.
Too little attention has been paid to the media and its impact on civil rights and criminal trials. I would like to ask some of the awkward questions that Tom Sargeant might have asked had he been here.
I cannot count the number of clients who arrive, in varying states of distress in my office armed with newspaper cuttings and a desire for justice or even revenge, seeking to take a case for breach of privacy.
It is with shock and disbelief that they learn that no such head of claim exists under domestic law.
It is often my job to scour the peripheral possibilities in search of something pertaining to protection.
Time and again I have to recognise the inadequacy of the English Law in dealing with media intrusion into and revelation of private information.
I have been advised that as a lawyer I should maintain what I would describe as an archaic silence. In my position, dealing with clients in the public eye, to turn mute in the face of the media would, I believe, be more damaging than to agree to a regulated discourse with the press. It is in seeking regulation of such discourse that problems may arise.
As you are aware Barristers are subject to a simple rule, and one which I would suggest is grossly inapt in this day and age. Members of the bar are prohibited from discussing cases in which they are instructed whilst proceedings are active. This seems incongruous given that the entire evolution of the bar and education of every barrister is geared towards comprehensive and objective relating of facts.
Solicitors, who historically have been viewed as " back room boys ", however are ( subject to the vagaries of the Solicitorsí Practice Rules) allowed to "speak the speech", less "trippingly on the tongue" and more tripping over their own tongues and ending up with both feet in their mouths. ( Hamlet 3.2)
Of course there are measures in place to regulate the discourse from the media's standpoint: but experience has demonstrated that either such measures are inadequate or historically that the threat of implementation is a hollow one:-
Both the contempt of Court Act 1981 and the Common Law Sub Judice rule are already dusting over in the section marked "Redundant" lying between "Read all about it" and "Revealed exclusively" in the metaphorical media library.
Section 1 of the Contempt of Court Act 1981 defines; "The rule of law whereby conduct may be treated as a contempt of court as tending to interfere with the course of justice in particular legal proceeding regardless of intent to do so".
The strict liability nature of the rule should add bite to the law; and yet it has become not a bark but a whimper?
Are the press to blame for this? No, I donít think so. The press are not the law makers, nor are they officers of law enforcement; their job is entirely other and they know what makes a story, what their market wants to read; ultimately how to sell copy.
No; responsibility must fall to the Government and most particularly the Attorney General within whose ambit of duties it is to enforce the provisions of 1981 Act.
It would be sheer hypocrisy to expect the media to abide by laws, which the very law makers themselves ignore.
The Contempt of Court Act 1981 is itself inherently flawed for it applies only to publications made whilst proceedings are active. The most obvious example was the use by News International and BSkyB of tapes purporting to show Bruce Grobelaar accepting bribes. That was followed by unremitting coverage concluding with photographs of him being led away in handcuffs. This is some of the most prejudicial material to be used in advance of a trial.
What would be more desirable is a pre emptive strike to delay publication; this is what current protection lacks;
The Press Complaints Commission is a case in point; its somewhat flimsy sanctions may only be activated once a publication has been made, and thus the opportunity for genuine objectively lost. Prevention has to be better than cure, especially when that cure is a mere band-aid on a profound wound which may amount to the denial of the reputation, or more pertinently , the denial of liberty. The cases of the Taylor sisters, the Guildford Four and others illustrate this point more than adequately.
The power of the media and the perceived liberty of its workings can result not only in an external jeopardising of justice but also in an internal undermining of the objectivity of the law and the concept that one is innocent until proven guilty.
The payment of witnesses first came to notice during the prosecution of Ian Brady and Myra Hindley. In this case it was the Chief Prosecution witness who confessed to receiving a series of payments from the press in return for information about the trial of the Moors murderers.
The Lord Chancellor's Department 1996 Report on Payments to Witnesses records how the Attorney General of time believed that although such an arrangement could seriously jeopardise the administration of justice yet he could find no evidence that any testimony had been affected. On the basis - so far as I can see - of little attempt to find anything. Recent attempts by the police to force disclosure of payments to its officers have sent newspapers positively scurrying for the hills.
The Phillimore report carried out by the Committee on Contempt of Court 1994 stated that the potential risks of financial incentives to witnesses were sufficiently grave to prompt an enquiry and to contemplate the creation of legislation rendering the practise in certain forms a criminal offence.
22 years later it is estimated that 19 witnesses in Rosemary West's case received payments and had contracts with the media including Janet Leach who acted as Fred West's appropriate adult in police interviews.
Payments to witnesses have been addressed variously by the Government in the Lord Chancellor's Department paper of 1996, the House of Commons Select Committee on National Heritage in their paper Press Activity Affecting Court Cases 1996 - 97 and the Press Complaints Commission 1996 Code of Practice "Moving Ahead ".
There has not yet been introduction of effective legislation, all that has happened is that payments are made to third parties. In the Josie Russell murder case, Michael Stone as the convicted killer, was believed to have been paid an option for his story in the sum of £5,000 by a Sunday paper. His family were paid £20,000 by another newspaper. And even one of the prosecution witnesses was bought.
Change is afoot ; The death of Princess Diana and all its attendant media hysteria and merchandising mayhem brought the issues of privacy and press intrusion to the forefront of the public and professionís minds. We have been forced to look more closely at both European law and the American situation in order to find a practicable route dealing with privacy into the Millennium.
In the United States there is a clear concept of Public Interest , a phrase which is often bandied about in this country with no clear idea of what it is taken to mean . A lawyerís idea of what is in the public interest in terms of disclosure is obviously , and I dare say necessarily , very different from that of a journalist.
I would argue that we should not follow to the letter the American system for it can give rise to some ridiculous anomalies. For example: In the case of Daily Times Democrat Ėv- Graham 1964 the Plaintiff , a member of the public - not a public figure - was caught on camera unwittingly exposing his genitalia . Publication was forbidden by the court . In the case of Neff Ėv- Time Inc 1976 , however , the Plaintiff , a football player unwittingly revealed what he had thought of until then as his private parts . The Court ruled that his private parts could not remain private as they were attached to a public figure; and publication was allowed .
I would suggest that a greater degree of subtlety and discretion should be required from the law. The American distinction between private and public figures seems astonishingly commercial in its bias. "Public Interest " is an all encompassing carte blanche for the publication of material relating to anyone in the public eye .
Now the new Human Rights Act will require us to publish unless there are strong and compelling reasons to displace the right of free speech. This will cause us to review and measure the media's rights against other rights, The time is therefore ripe, I would suggest, to have a thorough review of the media and competing and comparative rights.
Itís good time it seems to me to be revisiting where we go from here because this year has seen, although the last year or so, has seen two milestones: The first , the creation of the Criminal Cases Review Commission. Of course itís not as Tom Sargant would have had it and itís not exactly as we would have had it but itís there. And itís important it seems to me for two reasons; First because it stands as a visible symbol that Tom Sargant was right, that courts and the adversarial system can get it wrong, that thereís no monopoly of judicial wisdom or the perfection of process and that itís needed, itís there.
Secondly, it does have powers and resources that are light years away from what we have had at Justice and certainly from those that Tom had. So itís there. There are of course downsides to it and Mike Mansfield has mentioned some of those.
The second milestone that we have this year is the Human Rights Act. Again, the Human Rights Act isnít exactly what we would have bought off the shelf. There are some things missing from it, principally a proper enforcement mechanism by way of a Human Rights Commission which could assist litigation, which could inform those bodies that are going to be caught by it, which could inform citizens which could undertake training, which could do the things that Human Rights Commissions do in other countries like that very remote country Northern Ireland which is to have a Human Rights Commission.
There is also the absence of the ability of third parties to take litigation. Organisations like Justice would be able to take cases on judicial review under public law generally but we wonít be able to take human rights points - which appears to be mad. But having said that, the Human Rights Act is important because it establishes a floor of rights. It establishes a notion of partnership, that human rights are the business of the courts, the legislature, the executive and public authorities from the biggest like the police down to the smallest like a voluntary organisation running a hospice. Itís not a miracle solution and Iíll say more of that later, but it exists.
So itís a good time for JUSTICE and justice to think about what the priorities are now AND where we refocus.
Many of those targets will be set by the Human Rights Act. Mike Mansfield mentioned disclosure. The Human Rights Act gives us another take on issues like disclosure where fair trial issues are around. Itís interesting that the government is already strengthening the provisions on the right of silence to make it clear that if there are to be inferences drawn from silence in a police station you must have a lawyer present. Thatís not unconnected with a case called Murray that went to Strasbourg and the fact that the Human Rights Act will be implemented here soon.
Justice recently produced a report on policing. It indicated some of the dangers of whatís called Ďintelligence lead policingí, pro active policing methods using very sophisticated technical surveillance methods which may infringe peoplesí privacy and bugging devices many of which are not at the moment properly regulated by law.
Even broader than that I think is the whole issue of surveillance, the use of CCTV, the use of very sophisticated digital imaging techniques and data matching techniques. On one level these are felt to be necessary for the protection of society, but at the other level cause an elision between the public and the private life of people. If your personal life can be continually monitored then thereís no space left between your public and your private life.
These things are often technology driven. They are being proposed by the people who will gain an awful lot of money by selling them. Once again, the Human Rights Act allows us to make those balances between the public interest in preventing and detecting crime - but showing that any infringements of privacy are defensible, are laid down in law, are proportionate, and can be justified as being proportionate to the danger that they are seeking to address.
I think there are also issues in criminal law in the way that mandatory life sentence prisoners after sentenced. The Home Secretary, an elected politician, decides the period of their imprisonment and whether or not theyíre released. Outside of Britain itís very difficult to explain why we allow our elected politicians to make individual decisions on sentencing cases. This is a matter that is also being gradually whittled away by cases taken to Strasbourg - some of which Justice has taken. We have gradually wrenched away from the Home Secretary the power to make decisions on juveniles who are sentenced and discretionary life sentence prisoners. Hopefully, the Human Rights Act will provide further material for challenging the fact that the Home Secretary should have a say in an individual sentencing decision.
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