How miscarriages are caused
A major difficulty encountered in any study of miscarriages of justice is the wide variety of forms they can take. The most obvious are those in which the accused was in no way involved in the crime with which he or she was charged. Suspicion had fallen on the wrong person. When such miscarriages come to light, usually through the discovery of new evidence, they invariably hit the headlines, without however provoking much speculation as to how they came about or concern that the real villain had remained free to commit further crimes.
But there are many other categories about which the general public know nothing. They rarely come to light and if they are remedied on appeal they are not reported as wrong convictions. They include:
Finally there are the very large and difficult categories in which the issues were intent, foreknowledge or guilty knowledge, which depend on the ability of a jury to enter the accused’s mine No one will ever know how often the make tragic mistakes. Cases which have caused serious concern are known to us in all these categories. This chapter sets out the main hazards which, either singly or in combination, may have led juries to bring in mistaken verdicts.
It must however be borne in mind that in 1984 375,000 persons were tried and found guilty of indictable offences in the Crown Courts of England and Wale! The vast majority of their trials would have been conducted with scrupulous fairness. Our concern is about those in which, for a variety of reasons, there were lapses of integrity and failures to implement required guidelines and safeguards. We have been particularly struck by the extent to which miscarriages of justice can be brought about by unreliable or inadequate forensic evidence and have devoted separate chapters to this subject.
Powers of the police
The police have enjoyed far too much power in the prosecution process, and will continue to do so, despite the new safeguards contained in the recent Criminal Evidence Act. They investigate and report on the scene of the crime They interview suspects and take statements from potential witnesses They can search clothes, houses an vehicles without any independent check on their findings. They are responsible for the collection of all exhibits and packaging them for delivery to the forensic laboratory. They can bargain with suspects and put pressure on vulnerable witnesses. They can testify without fear of challenge to admissions which may or may not have been made and will be able to do this until tape recording is fully in force and accepted. All these activities are subject to no kind of judicial or independent scrutiny until the suspect is charged. The newly-appointed Prosecuting Solicitors will have power to refuse a charge, but it is not at all clear what powers they have been given and will use to verify the in formation laid before them and to re quire further investigations.
Our experience is that there are some forces or divisions in which the senior officers have become corrupted by the power they wield and will stoop to any form of malpractice to obtain a conviction if in their eyes it is justified. Unless the committal proceedings are contested, the evidence they have assembled will not be challenged until the trial and judges do not look kindly on accusations of dishonesty against the police. If the accused has a record, it will be put in. If, in a trial within a trial, he or she alleges that an admission was extracted by pressure or ill treatment, the judge will be more than likely to rule that it is admissible. In no way can the accused later complain about any matters that were dealt with at the trial. If any serious malpractice is brought to light at a later stage, the complaint will be investigated primarily to determine whether the officer should be prosecuted or disciplined. The accused will not be told the details of the investigating officer's findings. These may be sent to the Home Office but will most probably remain there. An essential reform is that complainants or their solicitors are provided with all the statements taken in the course of the investigation. If this can be done when a case is referred by the Home Office to the Court of Appeal, why should it be denied to a prisoner who is trying to obtain a reference?'
Evidence of identification
In the last 20 years there have been three mistaken identity scares leading to the appointment of a small but high-powered committee under the chairmanship of Lord Devlin. This committee recommended a number of important statutory safeguards including a requirement of corroboration unless the identification was clearly reliable. But this did not please the judges as it would deprive them of the discretion they have always enjoyed. They therefore persuaded the Home Office that no legislation was required—the problem could safely be left in their hands. The Court of Appeal then proceeded to lay down detailed guidelines for trial judge which if not observed might—but only might—lead to the conviction being quashed. It did not take very long for the guidelines to be watered down. Many judges now only pay lip service to the reading out the guidelines but failing draw the jury’s attention to the specific differences of description or unsatisfactory circumstances as they are required to do. In three cases known to us there has been a more sinister evasion of the guidelines. Having decided that they want to charge a suspect, the police ignore the differences in description and produce some kind of admission. There is then no need for the identification evidence to be deployed or the guidelines observed, as the Court Appeal will treat it as a confession case.
In the case of Ian Woolmore 1982 two young girls were walking in the outskirts of an Essex town. They were joined by a man who chatted them up and then suddenly flung the elder girl to the ground and raped her. The younger girl ran off with their dog to get help. In their statements to the police both girls related the man’s height to those of their daddies, which worked out at 5' 8". They both give detailed matching descriptions of his physical characteristics and clothes .
Because of a matching blood group, suspicion fell on Woolmore, a loner of low intelligence who lived in a hut in his sister’s garden. He was in deep psychological trouble and, when the police offered to help him if he admitted the rape, he readily agreed and, albeit with some mistakes, described how it happened. But the police were themselves in trouble, because Woolmore was a veritable giant of 6’ 8" and none of his characteristics and clothes matched the girls’ description. This had led them not to hold an identification parade.
At the trial, Woolmore repudiated his confession but was unable to explain it away. By agreement of counsel, the girls did not give evidence—only their statements were read. The only comment on identification made by the judge, who sat the younger girl on his knee, was "One of the girls, or was it both, said the man was taller". At a subsequent appeal, the presiding judge said that it would have been quite easy for the girls to have misjudged the man’s height and for Woolmore to have mistaken a brown dog for a black and white one. The Court declined to consider a statement from Woolmore explaining that he had made the confession to protect a close friend who had admitted the rape to him under an oath of secrecy. But it graciously reduced his sentence from ten to seven years because he had not made the girls give evidence.
Furthermore, safeguards relating to the makeup of an identification parade are still inadequate.
In the case of Desmond Adams, one of the identifying witnesses was moved, without provoking any adverse comment from the trial judge or Court of Appeal, to tell the jury that he was the only man on the parade who could possibly have been the man who assaulted her. In the recently publicised case of Anthony Mycock, the Manchester police put a mature man of 28 on a parade com posed, apart from Mycock’s brother, of young students under 20.
The police refused to accept a recommendation that parades should be photographed and only a few forces record the physical descriptions and clothing of the persons standing on the parade. To mount an effective appeal, the appellant’s solicitor has to write to all the members of the parade and obtain their descriptions. If no protest w; made at the time, even when the accused was not represented, the Court of Appeal will not entertain one.
Prosecution witnesses and statements
In the course of their investigations the police quite often take statements from witnesses that are favourable to the defence and until fairly recently the were not obliged to disclose them. Their only legal duty was to provide the names and addresses of witnesses who in their opinion, might be helpful. This was a travesty of fairness, for how could the prosecution always know what statements might be helpful?
Furthermore, when defence solicitors approached these witnesses for statements, they might well be met with a refusal on the grounds that they had already made a statement to the police After continued pressure, instructions have now been issued that the defence must have access to, but not copies of all statements taken during the investigation. In a murder enquiry, these can amount to many hundreds, which means that a busy solicitor may have to spend many working hours at a police station without any guidance as to what might be of interest. One can only hope that the independent Prosecution Solicitors will find some way of remedying this situation.
The calling of prosecution witnesses presents a more serious problem. It happens quite often that statements favourable to the defence, for example in respect of descriptions or observations, are quite properly included in the bundle of depositions, but the prosecution decides not to call their makers as witnesses. This can present the defence counsel with a dilemma. If the witness is called and found to be uncooperative, counsel cannot cross-examine the witness unless the judge can be persuaded to make him or her a hostile witness. But if the judge calls and examines a witness, he or she can then be cross-examined by both sides. Under present law, the court has a residual power to call a witness but rarely if ever uses it. It is held to be an undesirable intrusion into the battle arena rather than a means of establishing the truth. For ourselves, we believe that at the request of either counsel the judge should exercise this power and further that the jury should at least have the right to ask the judge to call any witness who has been named in the course of the trial proceedings. It is a travesty that a judge should say to a jury, as he did in a case in which two men were accusing each other of a murder, "You may wonder, members of the jury, why you have not heard the evidence of X who could have shed a great deal of light on this case," and leave it at that.
Treatment of witnesses
It is a question for serious debate whether the accepted practice of leading witnesses on a tight rein is the best way of getting at the truth. To begin with, it makes a nonsense of the oath which should read more appropriately, "I promise to tell as much of the truth as the Court will allow me to tell". This is not just a facetious criticism. It frequently happens that a witness wants to go beyond a simple question asked by counsel but is told by the judge, "just answer the questions". This can result in the suppression of an important fact or observation. In two cases, when a mother was asked why she had not told the Court an important fact that might have cleared her son, she replied, "I was never asked the right question". Two forensic experts have complained to us that there have been times when their testimony has been cut short by counsel before they have had a chance of bringing out or clarifying an important aspect of their findings. There is a very simple answer to this problem, namely that after witnesses have finished giving evidence, the judge should ask if there is anything else within their direct personal knowledge which they think the jury ought to know. The objection raised to such a procedure is that the witness might come out with some inadmissible hear say, but we regard this risk as negligible and unlikely to create a situation which an experienced judge could not handle.
The other objection has already been mentioned, namely that it would bring about an undesirable descent by the judge into the battle arena. There is also room for doubt whether the bullying of witnesses is helpful to the cause of justice. Experienced police officers and criminals can usually survive attack. They have decided in advance what they are going to say and stick to it, whereas young honest police officers and alibi witnesses can too easily become confused and discredited. A common ploy is for prosecution counsel to ask them in an aggressive tone if they have discussed their evidence with anyone before coming forward. They will naturally and almost inevitably have done so but are afraid to admit it in case they have done something wrong. They deny it, are found to have lied and thus lose credibility.
Independent civil witnesses play a vital part in the judicial system which is not properly recognised and honoured. They run the risk of being made to look foolish or branded as liars. They may be kept waiting for days and then told that they are not wanted. h it to be wondered at that they are often reluctant to come forward?
The rules about hearsay evidence were originally designed to prevent uneducated juries being misled by village gossip and in our view should have no place in an educated society. In other jurisdictions, the tribunal is en titled to hear any relevant evidence and is held to be capable of evaluating it. We further, as laymen, do not understand the logic of the principles on which hearsay evidence is defined. For example, a man is involved in a criminal incident in which the issue is intent or guilty knowledge. An admission implying guilt alleged to have been made to a police officer, or even a fellow prisoner hoping for some reward, is regarded as admissible. But if immediately after the incident he has gone for advice to a priest and given him a detailed account of the incident which clearly absolves him from any blame, the priest cannot testify to this, even though the police officer denies that the man gave him the explanation or prosecuting counsel maintains that it is a late invention.
In the case of R. v. Steele, a young man emerged from three days detention in a police cell, having been induced to sign an unconvincing confession. He was allowed to see his solicitor and told him that he had made the confession only because he had been beaten up and kept without sleep. He described in detail the treatment he had received. The solicitor was allowed to tell the court that he appeared agitated and that he went and complained to the superintendent in charge of the case, but not what he was told by his client. The police had only to maintain that the confession was free and voluntary to obtain the support of the judge and be believed by the jury.
In another case, a man entered a house and attacked a woman who was cleaning the hall. She called out to her husband upstairs, "Bill, come quickly, there is a man trying to rape me". Bill came down and detained the man until the police arrived. At the magistrates' court the clerk had to stop the wife from saying what she had called out and the husband from saying what he had heard her call out, even though their witness statements had confirmed each other. The case was dismissed. The over-strict enforcement of the rule governing dying declarations can very easily lead to a miscarriage justice. This requires that a statement made by a person who has died since making it is not admissible in evidence unless made under a settled expectation that he or she was dying. In the case Leathland and Castin Townsend which hit the headlines many years ago, there is no doubt that the wrong brother was convicted of murder. The dying man had described Castin as his killer to two friends, two nurses and the hospital doctor, but the judge would not admit the evidence because the doctor had not told the man that he was dying. Castin later confessed to being the killer, but the police officer deputed to take a statement from him reported that he was unwilling to make one and Leathland had to serve seven years.
It is unlikely that any barrister criminal practice would disagree with the view that false evidence in varying degrees of seriousness is given every day in every court in the land. It may be given deliberately or unwittingly, or may take the form of perjury by omission which we have already mentioned and which may be just as deadly in its effects on verdicts. It can of course be committed by or on behalf of guilty defendants hoping to escape conviction but we are concerned with perjury the results in the conviction of the innocent This state of affairs can be attributable in part to the hypocritical nature of the oath but mainly to the indifference with which perjury is regarded by authority. Even when it emerges quite clearly in the course of a trial or a subsequent investigation that a police officer or other prosecution witness has given false or misleading evidence, he or she is very rarely prosecuted or even disciplined. The responsibility for prosecutions for perjury rests with the Director of Public Prosecutions and in 1984 only 15 per sons, including police officers, were charged with perjury in judicial proceedings. 13 were found guilty of whom six were given custodial sentences. 38 persons involved in 17 cases were charged with conspiracy to pervert the course of justice.
Other jurisdictions take a more serious view. For example, in France a deliberate perjurer is liable to be given a sentence of imprisonment equal to that of the victim. In Germany the oath is not gabbled, as it so often is here, hut is administered by the judge with the whole court standing, and the witness is really required to tell the whole truth. ()n the other hand, a much more realistic view is taken of defendants’ evidence. They are not expected to tell the truth and are therefore not required to take the oath.
Furthermore, there is no civil remedy for the victim of perjury. If the Director of Public Prosecutions fails to prosecute a police officer for assault then the victim can bring a civil action for damages in the Crown Court. But a per son who has been imprisoned through false evidence has no such right.
Confessions and admissions
Disputes about the genuineness of confessions and admissions have long been the most unsatisfactory feature of criminal trials. They have wasted thousands of hours of court time every year and have done much harm to the integrity of the system. The police have tended to rely on them instead of looking for independent evidence against their suspect. Loss of confidence in the police has led to juries disbelieving admissions when they may well have been genuine. Senior judges in the Court Appeal have called for steps to be tab to reduce the uncertainty surrounding them. The disputes usually take the form of a trial within a trial in which the accused give their versions of how they were induced to make their confessions usually alleging oppressive questioning and ill-treatment, or outright fabrication. The police deny any such pressure and the judge then decides whether or not the confession is admissible in evidence. If the confession is admitted, the battle is fought all over again front of the jury.
There are new rules which govern the permitted periods a conditions of detention and questioning but they have no statutory fore Nothing is lost by the prosecution if they are not observed, as judges very rarely use their discretion to exclude a confession, their instinct being to believe the police rather than the person in the dock. The new safeguards introduced in the Criminal Evidence Act will eventually improve the present situation but loopholes will inevitably remain. Much will depend on the calibre and conscientiousness of custody officers and the fairness of magistrates. Judges and juries will still have to decide whether they believe the police or the defendant. A simple and effective solution to the problem would be that no confession or admission should be admissible in evidence unless it has been authenticated by a magistrate or a solicitor or a tape recording. This would relieve the police of any temptation to extract confession by improper pressure. In any event there is an important test for validity which should be applied any confession, namely whether it gives a reasonably correct account of the known facts.
In two of the Rough Justice (Livesey and Steel), the alleged confessions contained a number of serious admissions and/or mistakes on which the trial judge failed to comment. In our view there should be strict guidelines as in identification cases, requiring the judge to point out to the jury all such omissions and discrepancies. Next, all confessions should be written by the suspects themselves. If they are unable to write, then the duty solicitor or the custody officer should be called in to write it at the suspect’s dictation. Finally, evidence should be sought and given to the Court about the physical and psychological state of the suspect, in particular if he or she could have been under the influence of drugs.
Joint trials are a potent source of miscarriages because they often take the form of two interwoven battles—the prosecution versus the accused, and the accused versus each other The simplest but perhaps the most dangerous situation arises when two people have been involved in a killing. They both accuse each other and claim that they tried to protect the accused or to stop the fight.
This means that each accused has to submit to cross-examination by two counsel—a formidable ordeal in it itself. In three cases we have studied the jury has, in our view quite mistakenly, accepted a suggestion by the judge that it was a joint enterprise and convicted both defendants. Until quite recently a defendant could deliver a surprise attack on a co-accused from the dock, knowing that he or she could not be cross-examined. Quite rightly, he or she now has to go into the witness box but it took many years and many unsatisfactory verdicts before the need for such a reform was accepted. A statement made by one accused incriminating another can however be read to the jury without its maker being required to go into the witness box to support it; on condition that the judge instructs the jury to disregard it or to put it out of their minds (an intellectual feat of which judges themselves are incapable).
The worst hazards however lie in multiple gang trials in which an innocent person can be found guilty by association. The accused was with the villains when they were rounded up or seen drinking with one of them in a pub. The actual evidence is circumstantial or minimal. He could clear himself if he told the court all he knew about the crime, but he is too scared to do so. The members of the gang could clear him but they are pleading not guilty and after they have been convicted and lost their appeals it is too late.
No one in authority will ascribe any credibility to a convicted prisoner unless he or she is giving evidence for the prosecution. A somewhat different situation is when one of the accused group pleads guilty and is anxious to give evidence that will clear a co-accused. He or she should rightly be sentenced before the main trial so that evidence can be given without fear that the police will give the Court an adverse report, but some judges insist on postponing sentence until the end of the trial. They like to hear the whole story to avoid passing disparate sentences, but they will have read the depositions—and in any event the wrong conviction of an innocent person is more serious than an inappropriate sentence on a guilty one The legal profession is not blameless in such matters: one of the writers has dealt with two cases in which defendants pleading guilty were dissuaded from giving evidence by their counsel and one in which counsel tried to persuade his client that it would be in his best interests to give evidence for the prosecution.
Pleas of guilty
Many innocent persons plead guilty for a variety of reasons. In minor cases they want to avoid the trouble of going to court, or they are advised to do so by the police. In sexual cases they may want to avoid the publicity attendant on trial. They may be warned by their counsel that the police evidence against them is very strong and that it would be in their best interests to plead guilty to a lesser charge if the prosecution agrees. They are fearful of facing the ordeal of battle, and the deal is done. Such cases are not imaginary. It is well known by counsel that the police will deliberately enter a more serious charge in order to secure a plea of guilty to a lesser charge. This is quite wrong because it means that the question of guilt or innocence may be decided between counsel in stead of by a court. In jurisdictions governed by the Napoleonic Code, pleas of guilty are not accepted until all the available facts in a case have been deployed before the court, and we regard this as a highly desirable reform.
Notice of alibi
The Criminal Justice Act 1967 included a requirement for the defence to give advance notice of alibi evidence. The police had been complaining that alibi defences were being sprung on them without their having had the chance to verify them and check for criminal records. A necessary safeguard was that the police, when given the names and addresses of alibi witnesses, should not be allowed to interview them unless the accused’s solicitor was notified and given the opportunity to be present. When the Bill was published, it did not include this safeguard, but during the Committee stage assurances were obtained from the then Law Officers that appropriate instructions would be issued to all Chief Constables. This was duly done and for the time being the instructions were observed. But they gradually came to be overlooked. The judiciary and legal profession appeared to be ignorant of them and they are not mentioned in Archbold’s Criminal Law and Practice. Ten years after the Act had been passed, the Home Secretary was persuaded that the relevant instructions had most probably been forgotten and should be re-circulated. But he refused the further request that they should be circulated to the judiciary and local law societies. Thus for a long period and probably to this day the police have been free to interview defence witnesses and persuade them withdraw or amend their evidence.
The prospects for a person who has been wrongly charged will depend greatly on the way he or she is defended. To begin with there are wide differences in the competence, conscientiousness and experience of solicitors engaged in criminal practice. Some solicitors run what can fairly be described as a legal aid conveyor belt. The offices are conveniently situated opposite police stations or magistrates courts. They employ clerks to take statements and sit in at trials. They fail to trace potential witnesses, and their briefs to counsel often consist solely of the depositions and the proofs they have taken from the accused and his witnesses. On the other hand there are solicitors who do their work superbly and within the limits of the legal aid fees allowed will leave no stone unturned But as crime increases, so the competence and experience available must become more thinly spread. —the same of course being true of counsel and of the judiciary. The importance of organising the defence and of tracing witnesses is that if they could have been traced with reasonable effort, they cannot be called on appeal. We shall be dealing with the problem of forensic evidence in separate chapters.
Defendants awaiting trial can apply to the Court to have their legal aid certificates transferred to another solicitor and have a reasonable chance of having the application granted, but they have no such freedom to choose their counsel. Even if a competent one has been briefed, there is no certainty that on the day of the trial they will not still be part heard in another case. Judges do not willingly grant adjournments and the accused is thus landed with an unknown substitute who may have only looked at the papers overnight and has to make difficult decisions about the line the defence is to take and which witnesses, including the accused, it would be wise to call on wholly inadequate briefing. We regard it as quite extraordinary that whereas, even in simple civil cases, counsel are asked to advise on evidence and to attend a conference with the client, this is not considered necessary in the majority of criminal cases. The consequences of all this can be far more serious than they would appear to the uninitiated. For the Court of Appeal holds would be appellants responsible for all the sins and omissions of their defence lawyers. A witness cannot be called who could have been called at the trial, a complaint cannot be made which could have been made at the trial, and a line of defence, however valid, cannot be advanced if it was not advanced at the trial. In the case of Desmond Adams (see ealier) his solicitors took a proof of evidence of alibi from his sister which differed in date from his own evidence and passed it to counsel without comment, with the result that the alibi was discredited. Moreover, Adams and his sister were told that they were on no account to mention that he had just come home from Grendon psychiatric prison on home leave prior to final release.
Evidence from the Grendon authorities would have explained his sister’s mistake and greatly strengthened the alibi. Adams was eventually helped to obtain leave to appeal but his new counsel took the view that he was debarred from putting forward the explanation that might well have cleared his client. The Court could thus rely on the collapse of the alibi to uphold the conviction. This rule is wholly indefensible. The official excuse for it is that it would allow dishonest counsel to have two bites at the cherry. This appears to be an admission that if the dice are loaded against the accused, he or she has no right to complain. We do not believe that it is beyond the intellectual capacity of appeal judges to distinguish the factually meritorious cases from the try-ons.
To revert to the general problem of inadequate briefing, it is the practice of some metropolitan solicitors to deliver to barristers’ chambers sets of papers covering trials on the next or following day. These are then allotted at his discretion by the chambers clerk, who, in the opinion of most members of the Bar has too much power over their prospects. The system certainly has one evil consequence in that a young barrister who is given an inadequate brief will not be allowed to complain to the solicitors because this would lead to them transferring their patronage elsewhere. We endorse the Justice recommendation that a senior partner in the solicitors firm should take responsibility for ensuring that briefs are properly prepared and sent to counsel chambers in good time. The head of chambers should be held responsible for ensuring that every case is allotted in good time to a barrister who is competent to deal with it and that provision be made for a substitute. A joint Committee of the Law Society and Bar Council should monitor the fair and efficient working of criminal legal aid. As things are, no-one is responsible, no-one cares and there is nowhere the victim of incompetence can go to seek redress.
The role of juries in criminal trials under discussion from various angles. For example, are they competent to adjudicate in complicated fraud trials, should their composition be subject to so many challenges, should juries be so strictly vetted in trials when security may be involved, and what about perverse verdicts? In general for all its faults the jury system provides a vital safeguard against oppressive prosecutions but it has some serious weaknesses:
Prisoner in the dock
It is the proud boast of our criminal system that a suspect is presumed to be innocent until proved guilty, but this is far from the reality. Leaving aside the question of long remands in custody, which are often unavoidable, can anyone who is brought up into the dock handcuffed to a prison officer ever present a picture of potential innocence? Apart from the danger of the case being prejudged, the defendant may be handicapped by difficulty in communicating with counsel. A prosecution witness is giving evidence which the defendant knows to be false and counsel is letting it go unchallenged. A note must be scribbled (but what if the defendant is illiterate?) and passed to the solicitor over the dock, who has to give the note to junior counsel who in turn has to pass it to leading counsel, who may be in full flight. By the time counsel has read the note, a valuable trick may have been missed. We seriously ask whether such a procedure adds to the fairness and dignity of a trial, and why such an out-of-date institution is still a feature of all the new courts being built. In the United States defendants sit next to their attorneys, which allows for instant consultation. We suspect that there are two reasons for the dock. It provides counsel with a defence against being importuned by a difficult client, but more significantly it helps to emphasise the social gulf between those who administer the law and those who offend against it.
One of the most powerful agents of justice is the judge's summing up. These vary in quality from being concise and scrupulously fair, or "straight down the line" as the Bar describes them, to a reiteration with embellishments of the prosecution case and minimal references to the defence case. Judges have to give the required directions on the burden of proof and to explain the law correctly--otherwise the conviction may be quashed by the Court of Appeal. But for the rest they have very little to fear. They can freely indicate their own views on the evidence provided they have told the jury that they are the judges of fact and qualify their adverse comments and deductions with "but it is a matter for you members of the jury".
They play down discrepancies in the prosecution evidence and play up the weaknesses of the defence. They can philosophise on the motives of alibi witnesses, for example, "You may think, members of the jury, as the prosecution has alleged, that these members of the defendant's family have put their heads together to help him escape his just deserts. But this is for you to judge". When police officers are accused of giving false accounts of interviews they can say "The defence asks you to believe, members of the jury, that all these officers with unblemished records have stooped so low as to conspire to secure this defendant's conviction. You may ask yourselves what they have to gain by it".
These are extreme examples and there are innumerable ways in which a judge can influence a jury, not the least by intonations and gestures which the transcript does not record. The company of prosecution-minded judges is only too well known to practising members of the Bar but there is little they can do about it unless they go too far beyond the permitted limits, which are very wide. Some older judges who have lacked the qualities for promotion to the Court of Appeal tend to get muddled and long-winded and to make mistakes. In one of the Rough Justice cases the judge made 51 mistakes of fact, most of them being corrected by prosecution counsel in his own interests. One of the undesirable gambles that has to be taken by defence counsel is whether to correct a serious mistake or let it go by and use it as a ground of appeal.
The summing-up in its present wide-ranging form is not conducive to the fair administration of justice. In the United States, the judge simply directs the jury on issues of law, on the basis that it has heard all the evidence and listened to the speeches of prosecution and defence counsel. There is no possibility of such a revolutionary change being accepted here, but we see no reason why the judge should not simply give a resume of evidence without comment or elaboration and then invite counsel on both sides to point out any errors he or she has made. On the same principle, the opening speech of prosecution counsel could be eliminated, as they do in Scotland. This can build up prejudice in the minds of the jury before it has started to hear any of the evidence.
It sometimes happens that counsel gives advance notice of evidence to be produced, and then fails to produce it. For example, in the Rough Justice Ernie Clark case, prosecution counsel announced that he would be calling a fellow-prisoner to whom Clark had confessed. It later emerged that the man was a known psychopath who had come forward with similar evidence in another case. It was therefore decided that he should not be called and an agreed statement was read to the jury. But the damage had been done and the Court of Appeal refused to remedy it.
Judges and the legal profession
Judges are recruited almost exclusively from the ranks of the Bar, the only exception being that solicitors are eligible for appointment as judges in the Crown Court. The reason given for this is that barristers have greater knowledge of the law and greater experience of the con- duct of trials. This is undoubtedly true, but we would submit that under the accusatorial system, long practice at the Bar may well be a wholly unsuitable preparation for judicial office.
Barristers are trained to argue that black is white. They must put forward the evidence for the defence and demolish the evidence for the prosecution, or vice versa. They can comment on the legal unfairness of a trial, but cannot express their own views on guilt or innocence. In their early years they may be given the responsibility for serious cases that are beyond their competence and, if they come from a privileged social background, can too early and easily come to regard themselves as a superior, being entitled to disregard the feelings of lesser mortals. When appointed to the Bench they may have already become insensitive to the claims of truth. They have to harden their hearts against the injustices of the system and the access of power can bring out their worst qualities. Any experienced counsel can give you the names of the bad judges, but very little can be done about them. The worst that can happen to them is a muted criticism by the Court of Appeal or a confidential rebuke by the Lord Chancellor's department.
Members of the Bar are reluctant to cross swords with judges or to lodge complaints because this could prejudice their own chances of promotion .
The Statute of Westminster was designed to protect judges against pressure from government--not to make them free to deal out injustice until the time came for them to retire, or to form themselves into a closed self-governing and self-appointing corporation such as exists today. A Judicial Service Commission, with high-powered lay representation, should be established with responsibility for the appointment, training, supervision and disciplining of judges.
The Court of Appeal
We have written elsewhere about the deficiencies of the Court of Appeal and will here sum them up very briefly. First, there are inadequate provisions for legal aid and advice. Would-be appellants are entitled to seek advice from their counsel as to whether they have any grounds of appeal and to have any valid grounds drafted and submitted to the Registrar. These are first considered by a single judge who may give or refuse leave to appeal. If leave is given, legal aid will also be granted for the application to be argued before the Full Court. But if leave is refused, the appellants have no entitlement to advice as to whether to pursue the application to the Full Court. Single judges vary greatly in their attitude to applications. There are known hard-liners who rarely grant leave or give inadequate reasons for their refusal. We therefore regard it as essential that counsel should be entitled to give further advice and, if it can be justified, to argue the application before the Full Court. It is not fair that appellants should be left to make their own often incoherent pleas. Next, if an application is refused by the Full Court, which includes one Lord Justice, then that is the end of the road. The appellant has no further remedy. This is in striking contrast to the position in civil cases where there is an unfettered right of appeal to three Lord Justices and to apply for leave to appeal to the House of Lords. In criminal cases, an appellant can only go to the House of Lords if the Court of Appeal grants leave after a full appeal hearing, or certifies that a point of law of public importance is involved. Furthermore, of recent years the Court has found a way of closing the door more firmly. It arranges for an application to he fully argued on both sides. If it is then minded to allow the appeal it invites counsel to regard the application as an appeal. If it refuses the application, there has been no appeal and therefore no possibility of going to the House of Lords.
Finally, the Court of Appeal has bound itself in fetters which prevent it doing justice to the true facts of a case, namely :
To summarise, the Court virtually ignores the very wide provision of the Criminal Appeal Act S.2(i): "The Court of Appeal shall allow an appeal against conviction if they think (a) that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory, and (b) that there was a material irregularity in the course of the trial". It is not unreasonable to assume that Parliament intended the the Court should remedy miscarriage of justice rather than quibble about legal technicalities. material irregularity in the course of the trial". It is not unreasonable to assume that Parliament intended that the Court should remedy miscarriages of justice rather than quibble about legal technicalities.
The Home Office
By constitutional convention, the Home Secretary is responsible in England and Wales for recommending the exercise of the Royal Prerogative, under which he can grant a free or conditional pardon, or authorise an early release from custody. Under the Criminal Appeal Act 1968 the Home Secretary can refer a case in whole or part to the Court of Appeal on the basis of new evidence.
Unlike the Court of Appeal, the Home Office has never received any of its powers or any directions from Parliament. Its actions and decisions on criminal matters cannot be challenged except by questions in Parliament or by reference to the Ombudsman solely on the ground of maladministration. It has formulated a principle, followed by successive Home Secretaries, that it would be wrong for them to intervene in a case on the basis of information which the courts have considered, whatever their own assessment of that information might be. In practice, the phrase ''considered by the courts" can cover any in- coherent plea about some new evidence which an uneducated prisoner, abandoned by his or her lawyers, may have submitted to the Court of Appeal, and this creates a no-man's-land from which a wrongly convicted person may cry for help in vain.
The requirements for intervention by way of reference are over-strict. The new evidence virtually has to prove beyond reasonable doubt that a petitioner is innocent the burden of proof being thereby reversed. It has to nullify all the evidence on which the conviction was based. It has to be investigated by the police, normally by the force that obtained the conviction. The police report, submitted by the Chief Constable, is then evaluated by officials at a level appropriate to the seriousness of the case. It needs to be taken at its face value because the Home Office, being the ultimate Police Authority, cannot very well inform a Chief Constable that it has no faith in his report.
If the petition is backed by an MP or a responsible body like Justice, a memorandum will be prepared for the Minister of State, perhaps with a draft letter setting out all the arguments, usually why no action needs to be taken.
We have seen one such memorandum and a number of such letters and were dismayed by them. For obvious reasons, a Minister of State burdened with many other duties cannot study all the papers in a complex case and will normally accept the advice of officials unless some special pressures are brought to bear.
Thus, for all practical purposes, the investigation and appraisal of criminal petitions is an administrative closed shop without any semblance of an in dependent element in the adjudication. We have not the space to deal with the remedies that have been proposed and can only recommend a reading of the Sixth Report of the Parliamentary Home Affairs Committee on Miscarriages of Justice (November l968) and the Justice Report - "Home Office Reviews of Criminal Convictions" (l968). These both recommend the appointment of some form of independent tribunal.