The following article, though written in 1994, before the creation of the Criminal Case review Commission and before the Labour landslide of 1997, remains relevant today for its comments on the public attitude towards miscarriages of justice and the problems of the the Criminal Justice Bill - the last effort of the Conservative government.
Louise Christian is a noted London solicitor, identified with many liberal causes. She is a member of "Justice" and "Liberty". She has worked on the "Bow Belle" case for many years on behalf of the parents whose children were drowned in the tragedy when a boat was sunk on the Thames.
"SOFT ON MISCARRIAGES OF JUSTICE
AND SOFT ON THE CAUSES OF MISCARRIAGES OF JUSTICES?"
In any contribution to a publication for the Tom Sergeant Memorial Lecture, you cannot help but start by remembering Tom himself; his dedication to uncovering injustice and the very many victims of miscarriages of justice whom he helped. Tom and the organisation, Justice, which he personified for so long, were instrumental in awakening public opinion across a broad sphere of opinion and across political parties to the existence of miscarriages of justice and to the defects in the criminal justice system which allowed them to happen.
The advent of television ("Rough Justice" and "Trial & Error") and of investigative journalism into the field and the exposure of high profile miscarriages of justice such as the Birmingham Six and the Guildford Four, should have resulted in a political determination to stamp out the abuses which have resulted in innocent people being imprisoned. The sheer number of successful campaigns does not detract from the unpublicised cases of people in prison, who say they are innocent (and a proportion are certainly innocent) and from all those still being wrongfully convicted. But political interest in miscarriages has declined instead of intensified. The government set up a second Royal Commission on Criminal Justice but this proved to be merely a delaying device. While the Royal Commission did at least recognise that the procedure for referring cases back to the Court of Appeal on new evidence is inadequate and recommend a Miscarriages of Justice Tribunal, and while it also came out against the abolition of the right to silence, its other proposals such as demanding defence disclosure and the abolition of some jury trials did not address the issue. Civil Liberties groups had been arguing for a requirement for confession evidence to be corroborated,
In the meantime politicians of all parties were changing the political agenda. As the Conservative government began to run into trouble in other areas its home affairs policy became increasingly dominated by tabloid hysteria over "law & order" In the past, while Home Secretaries might make popular speeches to their party conferences, in practice they have resisted the demands of extremists . In debates on the Police and Criminal Evidence Bill which went through parliament in 1982-3, politicians sought the middle ground following a lead from the earlier Royal Commission, which talked about achieving a balance by setting a limit to police powers. If one remembers that at the time even the Sun Newspaper carried an editorial warning against proposed extensions of police power and that fifty five Bishops signed a petition opposing the Police & Criminal Evidence Bill, one can see how very different the political climate was some ten years ago.
Hysteria about crime is easy to exploit in a time of economic recession and the new mood which swept the country was recently exemplified in the public's reaction to the trial of two boys for the murder of James Bulgar. In the meantime in parliament the Labour Party responded by using language very similar to that being used by the Home Secretary, Michael Howard, promising to be "tough" on crime and the causes of crime, The causes of crime were identified as social factors such as unemployment. The Labour Party did not spell out effectively the extent to which more repressive measures resulting in injustice may cause a lack of confidence in the criminal justice system itself. Both major parties were agreed on "toughness" as the appropriate image, The new Criminal Justice Bill, which has now gone through parliament largely unaltered and is about to become law, has been little commented upon by the press, nor have its proposals been subjected to anything like the amount of public scrutiny which attended the passing of the Police And Criminal Evidence Act of 1984. This is so even though the Bill saw the government turning its back on its own Royal Commission, especially in relation to the right to silence and not implementing the crucial recommendation for a Miscarriages of Justice Tribunal.
The Criminal Justice Bill will effectively terminate the right to remain silent. It means people who are arrested are to be told to give their defence on the street or in the police station perhaps without a solicitor being present, without tape recording and without any protection to ensure that police or store detectives don't make up or write down inaccurately something which was not said. This is so even though the person arrested may not have been told properly what they have been arrested for or what the evidence against them is. The clock will nearly be set back to the situation before the Police And Criminal Evidence Act. Suspects will still be entitled to a solicitor but the only effective weapon the solicitor has to prevent suspects being pressurized or misled by the police, by advising their clients to remain silent, is to be removed.
The text of the new caution which is to be read out to the suspects on arrest confirms that the new provisions will lead to many hours wrangling in the Courts, and worse, to a legitimization of pressure being put on people who are confused or vulnerable. It beggars belief to suppose that police officers will find themselves able to say the whole caution on the street unless they have time to get out a piece of paper and read it! The new caution speaks for itself. It is rambling, ambiguous and difficult to understand, even for a lawyer:
"You do not have to say anything. But if you do not
mention now something which you later use in your
defence, the Court may decide that your failure to
mention it now strengthens the case against you. A
record will be made of anything you say and it may be
given in evidence if you are brought to trial."
Insofar as the Bill has received attention from the press, it has been as a vehicle for controlling hunt saboteurs, new age travellers, people who attend raves" and others identified as being on the fringes of society. The reality however is that increasingly large numbers of perfectly ordinary young people are identifying with those targeted by the Bill. Political parties have failed to speak out against the scapegoating mentality of the Bill and the provisions in it which can criminalise dissent and peaceful protest generally. While politicians may feel they can afford this, since most young people simply do not vote at all, the political alienation of a whole generation may come back to haunt them.
The Director of Public Prosecutions, Barbara Mills, will soon be presiding over prosecutions for the new offences of "aggravated trespass", and attending "raves" . The first occurs when persons are protesting while trespassing on land belonging to others which could be, e.g. a hospital, school or building site which is the focus of the protest. Also to be against the law is attending a gathering of twenty or more persons, who are intended to have a "rave", defined as a gathering of a hundred or more persons where the music is "sounds wholly or predominantly characterized by the emission of a succession of repetitive beats". Persons attending intended raves or committing aggravated trespass can be sentenced to periods of up to three months imprisonment.
The provisions of the Bill which impact on the right to silence are bound to give rise to more miscarriages of justice as well as to lengthy disputes in courts about admissibility of evidence. Other parts of the Bill give rise to the prospect of an increased number of prosecutions for public order offences in circumstances which are bound to be seen to be discriminatory or unfair. I believe the government has done the Director of Public Prosecutions no favours by giving her this particular piece of legislation to implement.
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