TOM SARGANT COMMEMORATIVE LECTURE

 

UNFINISHED BUSINESS Ė WORK STILL TO BE DONE

 

1. I want to begin by saying how honoured I am to have been asked to deliver this the 11th commemorative lecture in memory of Tom Sargant. Over the years these lectures have served the valuable purpose of educating, informing, and above all stimulating and provoking thought. They are a fitting tribute to the work of Tom Sargant much of whose career involved challenging the status quo.

 

2. "To my mind," observed the Chairman of the Bench of Magistrates cheerfully, " the only difficulty that presents itself in this otherwise very clear case is, how we can possibly make it sufficiently hot for the incorrigible rogue and hardened ruffian whom we see cowering in the dock before us. Let me see: he has been found guilty, on the clearest evidence, first, of stealing a valuable motor-car; secondly, of driving to the public danger; and, thirdly, of gross impertinence to the rural police. Mr Clerk, will you tell us, please, what is the very stiffest penalty we can impose for each of these offences? Without, of course, giving the benefit of any doubt, because there isn't any."

(The Wind in the Willows)

3. Poor Toad of Toad Hall. He received 12 months for the theft, three years for the furious driving, and 15 years for his cheek to the police. It was necessary for the chairman of the bench to make plain that if Toad appeared before the bench again they would have to deal with him very seriously.

4. In a few sharp lines, Kenneth Grahame sketches out a caricature of a bench of magistrates which would have been easily recognisable to his readers in the peaceful days just prior to the Great War. I suspect that it too would have been just as recognisable for many decades after that. This lecture is about the next agenda, but it is worth reflecting that our hopes and intentions for the future take place in a context in which society has moved on, and rather fast, in the last two or three decades. Bigotry, prejudice of all kinds, and intolerance are still with us - we know that only too well from the report of the Stephen Lawrence inquiry; but as a society we no longer find attitudes of that kind acceptable. The debate is not about whether we approve of such attitudes, but rather about the extent to which they exist.

5. Last year four eminent speakers spelt out their ideas on the agenda for reform for the next 10 years. I have been asked this year to pick up on some of the ideas outlined last year and to present a response. I shall be glad to do so. But I hope that you will allow me to go further. This government has been in office for only two-and-a-half years, and there is much more to be done. I would like to share with you some of my thoughts about the issues to be tackled next.

6. As Attorney-General, I am one of a triumvirate of government ministers, the others being the Home Secretary and the Lord Chancellor, who are responsible for the Criminal Justice System. The phrase "the Criminal Justice System" is one that has been used to describe the combination of all the various bodies that are involved in the issue of crime in our country. But it is only recently that we have been justified in describing the combination as a "system".

7. It was not until April this year that the Crown Prosecution Service, the Home Office, and Lord Chancellor's Department combined together to publish a single set of common aims and objectives to which each department would aspire. Up until then the Departments had their own agendas. These worked in parallel, but not cohesively.

8. In fulfillment of our new, common agenda Jack Straw, Derry Irvine and I meet regularly to work out ways in which the system can work better, supported by a team of senior officials. We look at the system as a whole, and not from any territorial perspective. We tackle issues such as how to reduce delays, how to improve the service to victims and witnesses, how to improve efficiency without sacrificing fairness and equality. We needed to do this because it is difficult to deliver fundamental change if the various parts of the system are not working co-operatively and harmoniously towards the same end. There is more to be done, as I shall explain later. But we have made a start, and we are positioning ourselves for the fundamental changes that are to take place over the next few years.

THE HUMAN RIGHTS ACT

9. Of these, I have little doubt that the most fundamental change to affect the criminal justice system this century is about to come upon us. By the time the next Tom Sargant commemorative lecture is delivered the Human Rights Act will have come into force. Early signs are that the judges are fully aware of its potential to change the way in which public authorities discharge their responsibilities, and of their own role as judges in securing that change.

10. The Human Rights Act enshrines in our law the fundamental rights and freedoms that should underpin any decent modern society. Of course, the United Kingdom was a signatory to the Convention when it was agreed in 1950, but the incorporation of the Convention into our law will give the courts in this country for the first time the direct responsibility for enforcing Convention rights.

11. It will be unlawful for a public authority to act in a way which is incompatible with the Convention unless there is a direct clash between legislation and Convention rights, and victims of such unlawful acts will be able to bring proceedings. If, legislation, or subordinate legislation, is in issue in the proceedings it will be the duty of the courts to read and give effect to the legislation in a way which is compatible with the convention rights. It is, I think, beyond doubt that the courts will use section three of the Act imaginatively in order to secure a result that is compatible with the convention.

  1. I do not pretend that any of this will necessarily be comfortable for this or future governments. We legislated, of course, in the full knowledge and with the intention of giving to the citizen constitutional guarantees which it would be the duty of the courts to enforce. And they will act, of course, in ways which from our current perspective we will not always predict correctly. In future, some legislation that was thought to be compatible with the convention will be judged not to be so by the courts. Courts will make declarations of incompatibility and the government will have to consider taking remedial action. Criminal law, evidence and procedure are bound to be a focus for challenges of this sort, especially in the early days of the Human Rights Act. It would be naïve to suppose that all the challenges will be dismissed as bad ECHR points.
  2. So fundamental rights are now secured in legislation, with the courts as guarantors of their efficacy. But as Jack Straw pointed out time and again when the legislation was going through Parliament, the Human Rights Act will help to build a culture of rights and responsibilities. The ECHR recognises that rights cannot be unlimited. Balances and limitations are required to the rights of individuals to reflect the rights of others and the needs of the wider community. So you cannot properly understand the convention until you recognise that almost all the individual rights established by it are also contained by detailed limitations that are be placed upon those rights. And those limitations reflect the responsibilities that a mature and confident society properly expects of its citizens. I hope, along with my colleagues in government, that as we all become more aware of our rights, we will too become a more responsible, caring and less selfish community.

VICTIMS

14. In the criminal field, one aspect of this is that the responsibility we owe to victims will assume a much greater priority, and the expectations of the public generally about the service provided by the system will increase.

15. One of the aims that we set ourselves when we published our strategic plan for the criminal justice system in April was to improve public confidence. There is much work still to be done.

16. The criminal justice system can sometimes, I think, seem unnecessarily detached from the public which it serves. The reasons for this are, perhaps, partly historical. In the 17th to the 19th centuries when many of the traditions of our legal system were being formulated, the institutions in this country were much less firmly established; and civil strife, with the incipient threat of revolution, was never too far away. The 17th century did of course bring a revolution in this country, and the succeeding two centuries did so in most of the countries of Europe. It may have been to establish the place of our institutions and to inspire respect for them that we invested them, and particularly our legal institutions, with such majesty and dignity. Perhaps I am speculating too far, but whatever was the reason, I think that the system has become too far removed from the public which it is there to serve, and that the time has now come to correct this.

17. Many members of the public still regard the key characteristics of the system as being expense, incoherence and opacity. Its ceremonies, procedures, forms and customs are confusing to many. They probably serve to exacerbate rather than diminish the distressing experience for victims and witnesses of giving evidence in court. The public understands fairly well the way that the police operate, but, beyond this, research shows that there is little understanding as to how the system operates or how well it performs.

18. In terms of its performance, I do not believe that the criminal justice system is yet a truly responsive public service, nor is it perceived as such by the public. And yet the public has a legitimate interest in the system. It is not a by-stander looking in from outside. The criminal justice system directly affects the public, it directly affects us all. If the system fails, each one of us is touched by its failure. And that is manifested in the confidence which people have in all manner of everyday things: how secure they feel in their homes or walking the streets or going about their business. It is manifested too in the fears they have for the safety of others close to them: parents, children and grandchildren.

19. One aspect of the performance of the criminal justice system is its response to victims and witnesses. Much greater attention has been paid in recent years to the position of victims and witnesses, but over 40 per cent of witnesses who attend court still end up not giving evidence, and while waiting times for witnesses have reduced, they still average over 2.5 hours in the Crown Court and 1.5 hours in the magistrates' courts.

20. We have made a start in tackling these problems. The Lord Chancellor published a consultation paper earlier this year called "Transforming the Crown Court" which is looking to modernise the way in which the Crown Court operates. Current plans are to start piloting changes next year. The problems with delay are already being tackled, and the introduction of the Narey reforms on listing, the use of lay presenters and plea before venue should substantially improve the ability of the system to process cases quickly. The Government has now published "Action for Justice" which is the implementation plan giving effect to a coherent scheme giving greater help to vulnerable or intimidated witnesses. The Youth Justice and Criminal Evidence Act provides that their views will be taken into account in deciding which special measures are appropriate. We are also building on the valuable work done by Victim Support over many years. As a result of the success of their dedicated Witness Services in the Crown Courts, that scheme is being extended to cover magistrates courts. The promise of government funding will ensure that this can happen nationally.

21. We are also taking steps now to ensure that the criminal justice system becomes less anonymous for members of the public. The names and faces of Chief Constables are normally fairly well known within their areas. The Crown Prosecution Service is making a big effort to increase its profile, and in particular the profile of each of its chief crown prosecutors. All chief crown prosecutors have established contact with their local MPs, and local media. Some have appeared on television, many in their local newspapers. All reports by the CPS Inspectorate on the performance of areas and branches are published, warts and all. I hope that we can see the Crown Prosecution Service opening its doors to members of the public in future, showing people round offices and explaining what they do.

22. I know that the other bodies such as the courts themselves, magistrates court committees, and the Probation Service are taking similar steps to demystify their organisations. It is important because public confidence in the criminal justice system is crucial, and part of establishing and building this involves increasing familiarity with the institutions that make up the system. It should also help to change the culture within the organisations themselves. Greater contact with the public will give our institutions a greater sense that their purpose is to serve the public, and that they are accountable to the public.

23. The joined-up working that we have begun at a national level still has to be replicated fully at the local level. That is part of the next agenda. But we have made a start on this. One crucial step has been to align the boundaries of the various agencies in the criminal justice system to improve the sense of local ownership of the criminal justice system and facilitate local co-operation. We announced our intention to match CPS areas and police force areas soon after the general election. It took a little while, but from April this year the change has taken effect. By the year 2001, the magistrates court committee areas and probation service areas will also be grouped around the same boundaries. We have put other mechanisms in place to secure the same end: more local partnership groups such as Crime and Disorder Act partnerships, youth offending teams and drug action teams; and the Criminal Justice Strategy committees chaired by judges.

24. But without affecting all this work or impeding progress, we need to be thinking about the whole courts system in the criminal field. We have to tackle the point that it can seem so remote from the public which it serves. For this reason Derry Irvine is currently considering, together with Jack Straw and me, the establishment of a broadly based review of the criminal courts on the model of Lord Woolf's inquiry into civil justice. Such a review would be designed to produce a modern criminal courts system fit for the 21st century. But such a review will not be allowed to lead to planning blight.

25. We also need to be looking at our treatment of victims more fundamentally. The criminal justice system cannot command public confidence without the active help and support of the victims and witnesses of crime. In the past the system has taken help and support from victims and witnesses for granted. It has often treated them poorly. This Government is for the first time developing policies to change the way the system treats these key individuals. The Crown Prosecution Service will in future be taking on a pivotal role concerning victims from the point at which it assumes responsibility for a case when a person has been charged by the police. The people making up the CPS are determined, I am determined, to improve the experience by victims of the criminal justice system. A greater involvement by the CPS with victims will help it to become more outward facing; and improve its visibility. This is not the main purpose of the changes that are being proposed, but I think that they will be very useful consequences.

26. The effect of recommendations made in both the Glidewell and Stephen Lawrence reports is that in future the CPS will provide information direct to victims about decisions to drop or alter charges substantially. The recommendations place the responsibility for communicating with victims where it truly ought to lie: with the decision-maker. It was not fair to the police to ask them to convey the gist of a decision; and there was in any event no guarantee that they would get the nuances behind the decision entirely right.

27. This is a key policy change for the CPS. It intends to provide as much information as possible about the reasoning behind its decisions, recognising that there are several sensitive and important issues surrounding the amount of information that can be given in individual cases.

28. The decision how much to tell a victim involves balancing openness with the interests of others, including the suspect and other witnesses. There are limits on the amount of information that can be given in individual cases, for instance defamation, confidentiality, public interest immunity and the importance which we rightly attach to ensuring that suspects are tried in court, not through out of court statements.

29. Against this, it cannot be right for a victim of a crime to be left in the dark about the reasons behind the decision to drop or fundamentally alter the basis of a case. Too often the victim has felt excluded from a process which began because of a wrong done to him or her. The criminal justice system is not an end in itself, and if it so marginalises victims that they have no real understanding or sense of participation in the system they are bound to lose confidence in it.

30. The CPS is beginning pilot studies this month to assess the operational impact and associated costs of direct communication with victims. We will need to ensure that adequate resources are allocated to the CPS to enable staff to fulfil their new role. Comprehensive training will be needed to equip staff with the skills required to perform effectively. The CPS wishes to provide a first class service - raising expectations but then delivering a poor performance would be entirely counter-productive.

31. The recommendations that are now being pursued are a first step towards the CPS taking a leading role in the provision of information to victims - leading to the possibility that they will become a single point of contact for victims once the case has begun.

32. But providing information on decisions is only one aspect of a much more responsive criminal justice system of the future. Last year Marlene Winfield suggested that suspects should be able to obtain from the Internet general legal information, and specific information on their cases. They would also be able to track the progress of their cases in the courts. I agree. There is a great deal of scope for using information technology, and particularly the Internet, to improve the standard and depth of our communications. And there is no reason why general and specific legal information should not be available to all, including victims and witnesses.

33. But beyond this it is right that we should be asking ourselves about the role of the victim in the trial process. Work is already going on to consider the possibility of victim impact statements. Sir William MacPherson recommended that consideration should be given to the proposition that victims or victims' families should be allowed to become "civil parties" to criminal proceedings, to facilitate and ensure the provision of all relevant information to victims or their families. It is worth noting that the "parti civile" or something similar is a feature of continental systems, but on the other hand it has not been a universal success

We are considering this recommendation carefully.

CROWN PROSECUTION SERVICE

34. I have already begun to say a little about the Crown Prosecution Service, but I should like to spend a few moments talking about the changes that are taking place in the CPS. It is common knowledge that the Crown Prosecution Service has not had good coverage overall in the years since some 13 years ago it was formed. It is without doubt an organisation that is, and always has been, under pressure and over stretched. Its staff have taken many knocks and not been given enough praise for the professionalism and commitment with which they have fulfilled their important responsibilities.

35. I think that there are two main reasons for this unhappy situation. First, the profession has been over-ready to criticise the CPS. I am afraid that all of us too often in the past have read of judges or magistrates castigating some poor prosecutor for an apparent failing. All such instances are investigated, often at the instance of the Law Officers. Very often indeed the facts are by no means as bleak as they have been painted in court. Where there have been failures, they are often failures of the system as a whole. From time to time individuals in the CPS do make mistakes, as individuals do in any organisation. But is it right to condemn an entire organisation for the failure of an individual? Do we write-off the Bar because of the failures of an individual barrister? Where individuals make mistakes, should we really hold them up to public humiliation and ridicule?

36. The CPS does not apply such an approach. It does not answer like for like. When the investigations of judgesí remarks that I have mentioned reveal that the primary fault was with, say, the police, the CPS does not issue a press release triumphantly picking out each failing one by one and savaging the reputation of individuals or the police force as a whole. No, instead the Chief Crown Prosecutor quietly picks up the phone to the Chief Constable or drops him a line, and the issue is dealt with away from the glare of publicity.

37. I hope that the profession will act in that responsible way with regard to the CPS. I have spoken to many representatives of the police, and to many judges. I think they now recognise the negative and harmful impact that is caused by making virulent public statements. I believe that much more so that in the past judges will now deal with perceived failings in a different way, by taking the matter up personally with the Chief Crown Prosecutor. I hope too that where there is a matter for praise they will pass that on as well. We all respond well to a word of encouragement and appreciation. The Prime Minister has been taking a close interest in the fortunes of the CPS and in its role. He wants it to succeed and his interest has lifted the spirits and morale of staff in the Service. It is in the interest of all of us that the CPS succeeds and I hope very much that the profession can be more responsible in the future on this issue of publicity.

38. The other factor affecting the public profile of the CPS is that it will be reticent about claiming the praise due to it. Defence lawyers can triumphantly proclaim an acquittal, but the culture of the CPS as professional prosecutors inhibits them from drawing attention to their efforts when they achieve excellent results in individual cases. As prosecutors it is not their responsibility to go all out for a conviction. Rather it is their duty to ensure that the facts are properly laid before the courts. The consequence of all this is that much good work, which serves the public interest, goes unrecognised.

39. So much for the profile, but what about the fundamentals. I should like to say that the CPS is an organisation that is undergoing radical change. The report of Sir Iain Glidewell contained 75 detailed recommendations, the great majority of which have led to changes which affect the CPS and also other parts of the criminal justice system. To take an example - without affecting their independent roles, the CPS and police will be working together in criminal justice units in the future on the paperwork necessary for cases, to eradicate duplication and reduce delay.

40. One reform which will have some significance for the Crown Prosecution Service is the establishment of the independent inspectorate. Tomorrow I shall be introducing the second reading of the CPS Inspectorate Bill in the House of Lords. The Glidewell report recommended the introduction of an independent element to the existing inspectorate by way of a part-time independent chairman. We concluded, however, that we should like to go much further and establish an inspectorate entirely independent of the CPS. That is the purpose of the Bill. Under its provisions the Chief Inspector will report directly to me. The inspectorate will be mainly located in separated premises and its funding will be separate from the CPS.

41. One particularly important aspect of our proposals is that there will be a significant lay element to the inspectorate. Inspectors will not be drawn simply from the CPS as at present. Instead there will be open competition with the aim that a number of suitably qualified people will be recruited from the private sector. I hope that experienced and able defence practitioners will apply. The CPS can only benefit from the fresh perspectives that will be brought by people from outside the Service.

42. We hope too to introduce a lay element in another respect by securing input from members of the local community. Their role would be to identify and advise the Inspectorate on local issues of importance..

43. The CPS Inspectorate will act on the same basis as the other criminal justice inspectorates, for instance the inspectorate of prisons and the inspectorate of constabulary. Its reports will be published. It will point out areas for improvement, and commend what is done well. I have no doubt that it will discharge its duties with independence and, be a powerful force for ensuring delivery of a high quality prosecution service which prosecutes firmly but fairly. By making that contribution it will also reduce the risk of miscarriages of justice. That is something about which all of us present here tonight care deeply.

 

 

 

TRIAL BY JURY

44. Another of my tasks this week will be to introduce the second reading of the Bill to reform the procedure for determining the mode of trial in either way cases. The Bill is not without controversy, and it may be that there will be a number in this room who will have very strong views about its contents. I hope, though, that the Bill will be given proper and open-minded scrutiny.

45. Trial by Jury has developed into a cornerstone of our criminal justice system. It has become, for the great majority of serious cases, the accepted means by which any defendant is to be tried when charged with a criminal offence which could, on conviction, lead to a heavy penalty, in particular a lengthy prison sentence, being imposed.

46. Some believe that to remove the defendantís veto on the magistrateís decision that they should hear a case would erode fundamental liberties established in the Middle Ages, if not by Magna Carta itself. However, whilst trial by jury is indeed ancient, a defendantís ability to choose to be tried by a jury rather than by the justices was brought about in 1855.

47. The Royal Commission on Criminal Justice in 1993 and, more recently, the Narey Review of Delay in the Criminal Justice System, recommended that defendants should not be able to be chose to be tried by a jury in cases which magistrates have indicated that they would be content to hear. The Government has concluded that this is right in principle. In the same way that defendants do not have a choice of which magistrates, or which judge and jury, hears their case, we believe that defendants should not be able to choose where their case is tried. In Scotland there is no ability to elect for trial, indeed the prosecution decides the venue. I know of no other country in which such an ability to elect is allowed.

48. The Bill will include important safeguards. We believe it is right that the court should be required to consider the seriousness of the case from the defendantís perspective. When determining the mode of trial, magistrates will be required to have regard not only to any defence representations but also to such factors as the gravity of the offence, the complexity of the case (as legislation already requires) and the effect of conviction and the likely sentence on the defendantís livelihood and reputation.

49. In addition to the existing automatic right of appeal to the Crown Court against conviction, defendants will also be given a right of appeal to the Crown Court against the magistrateís decision on mode of trial. This was a suggestion of the Lord Chief Justice which, we have been persuaded, is entirely right in principle.

50. I believe that the combined effect of the proposal and its safeguards will be to produce a more efficient system which commands greater confidence. It cannot be right to call upon 12 members of the public to give up their valuable time to serve as jurors only to try cases involving, for example, the theft of a can of lemonade or a bar of chocolate. Magistrates in this country perform a valuable service and the quality of justice in their courts is high. Nine out of 10 people who elect trial by jury despite the belief of magistrates that it is appropriate for them to hear the case have previous convictions. Members of the public who try minor offences involving for the most part people with blemished reputations quickly become disenchanted, and that in turn undermines the institution of trial by jury. Moreover the extra delay results in great inconvenience and worry to victims and witnesses, and considerable extra cost and using of police time to little effect.

51. While this proposal is not motivated primarily by financial considerations, I have no doubt that considerable savings will result which can be used to better effect.

52. These proposals have the support of the Lord Chief Justice. I believe that they strike a better balance between the needs for reform and the rights of defendants and that they will produce worthwhile improvements.

PROSECUTION RIGHT OF APPEAL

53. I would like now to say a few words about the issue of a prosecution right of appeal. Under our current system, the prosecution and the defence do not have the same rights with regard to appeals. Since 1972 it has been possible for the Attorney General to make a reference to the Court of Appeal on a point of law, but even if he is successful, the acquittal remains. The Criminal Justice Act 1987 and the Criminal Procedure and Investigations Act 1996 enable appeals to be made by the prosecution and the defence against a ruling of a judge in a preparatory hearing. The Attorney General may also make a reference to the Court of Appeal in cases in which he is of the view that a sentence is unduly lenient. But all these provisions are small incursions into the general proposition that the prosecution is unable to appeal against a decision of a judge. I believe the time has come to re-examine the reasons for concluding that the prosecution should be subject to this restriction.

54. My concern is simply this: that there is an imbalance in the system. If a judge decides to stay a prosecution on the ground of abuse of process, or to direct the jury to acquit a defendant, or to make a ruling concerning the admissibility of evidence which has the effect of depriving the prosecution of a crucial plank in its case - ought not the prosecution to be able to test that decision on appeal? If it cannot, are we not allowing in fact a system in which judges are unaccountable to the appeal courts as to a crucial aspect of their responsibilities, at the very time that we are providing them with greater powers through the implementation of the Human Rights Act?

55. I recognise that there are a large number of issues involved in this suggestion. We must not over correct the imbalance, so that the defence are left at a disadvantage. We must not introduce unnecessary delay into the system. If new rights are given to the prosecution, we must take care to ensure that they are not greater than those available to the defence. There is a case for considering some filter in the system, for instance ensuring that no appeal is brought without the consent of the DPP or the Law Officers. Practical and resource issues would need to be addressed. But I strongly suspect that the mere existence of a prosecution right of appeal, even if only sparingly used, could lead to a significant and beneficial change in the culture of practice in the criminal courts. For this reason, Jack Straw, Derry Irvine and I have now asked the Law Commission to undertake some work in the area. The Commission will be looking at the case for providing the prosecution with a right of appeal against any adverse ruling of a judge. They will look too at the type of issues that I have described which arise in considering the proposal.

DISCLOSURE

56. I want now to turn to the topic of disclosure which was raised by Michael Mansfield last year. Concerns have been raised not only by defence practitioners but also by prosecutors, including the Director of Public Prosecutions himself, about the operation of the Criminal Procedure and Investigations Act. There have been some calls for a repeal of the Act.

57. There are grounds for concern about the way in which the provisions in the Act are being operated. There is more than anecdotal evidence of a failure by the police in some cases to properly schedule unused material or bring material to prosecutorsí attention. Confusion has been caused by the suggestion that common law duties concerning disclosure survive the passage of the Act.

58. There is too, I strongly suspect, a lack of enthusiasm by some participants in the criminal justice system for the statutory regime. Defence statements often provide little assistance to prosecutors in identifying issues of concern to the defence. There is also anecdotal evidence of judges in some cases making blanket disclosure orders without focusing on the issues. Prosecutors too need to ensure that they are asking questions of the police about key aspects of the case. The potential for miscarriages of justice is present, either in the innocent being found guilty or the guilty being successful on appeal when faults in disclosure come to light.

59. However I do not believe that this analysis leaves us with a stark choice of repeal or continuing as before. It is worth reminding ourselves of the background to the establishment of the Act. The background was described by Lord Taylor of Gosforth, a judge of the highest distinction and very great experience, in his own lecture in memory of Tom Sargant given in 1994. First of all he referred to the very wide duty of disclosure placed upon the prosecution by the decision in the Judith Ward case. He described this as an understandable response to the miscarriage of justice in that and other cases. I am sure that this is a sentiment which all in this room would echo.

60. He went on to say:

"No one can now doubt that there must be adequate rules to ensure that material which may be helpful to the defence is made available to them. However, the one-way traffic of disclosure by the prosecution with no corresponding duty on the defence, has given rise to grave difficulties both for the CPS and for the courts. There are problems both in regard to the bulk of the material to be considered for disclosure and in some cases to the sensitivity of some material. The prosecution often have to anticipate what may conceivably be of assistance to the accused without any help from the defence side so as to narrow the field. Indeed, there are often more and more searching requests by the defendant for material on a purely speculative basis. In regard to documents attracting public interest immunity and especially to information about informants, a trend has developed of seeking by requests for disclosure, to manouvre the CPS into having to abandon prosecutions. The defence of duress, which used rarely to be raised, has suddenly become all the vogue and is used to seek disclosure about informants which if given, would endanger them. Courts are being required to peruse large quantities of documents and judges, instead of being in court, are sitting in their rooms to decide what disclosure is to be made. This is an unacceptable state of affairs. It shows the balance in this area has become distorted."

61. Lord Taylor went on strongly to support the proposal in the report of the then recent Royal Commission which recommended a two stage of procedure for disclosure. The provisions in the Criminal Procedure and Investigations Act were based on those recommendations. Any proposal for a repeal and replacement of those provisions has, I, think to deal with the problems which Lord Taylor and the Royal Commission identified.

62. I have not yet heard a better solution than the one contained in the 1996 Act. The problems that have been found arise from a failure to implement the Act effectively. We need to take action to address these problems. The CPS inspectorate is shortly to conclude a thematic review of disclosure. It is important that we should learn the lessons from that review. The Home Office is conducting an evaluation of the operation of the Act. We must pay careful attention to its conclusions. The CPS has established a working group on disclosure to identify good practice. Its conclusions should be thoroughly implemented. We must refresh the extensive training that took place just prior to the implementation of the Act. Above all, we must ensure that prosecutors, whether in the CPS or in other departments, follow consistent best practice regarding disclosure, bearing in mind always the importance of ensuring that there is a fair trial. I have decided that the only means by which this can be achieved is to issue guidelines binding on all prosecutors to follow. Work is well underway in devising those guidelines, which will be the subject of extensive consultation within Government and with the profession before being issued.

FORENSIC SCIENCE

63. Finally, Michael Mansfield suggested in last year's lecture that much greater attention should be paid to the area of the forensic science. He highlighted the lack of resources devoted to the subject, and in particular the lack of attention to training. I think he is right that we have failed properly to give forensic science the attention that it deserves. If we believe, as I am sure all of us in this room do believe, that the only just outcome of a trial is one in which the guilty are convicted and the innocent are acquitted, then the forensic science service has a crucial part to play.

64. I am glad to say that this is a problem which is now being addressed. The government recently announced the provision of an additional £34 million pounds, to be used over the next two years, to start a programme to increase the size of the DNA database from the current 650,000 samples to at least 3 million. Other new applications are being developed which will allow the police to operate at maximum effectiveness include the roll-out, by April 2001, of a new national fingerprinting identification system. In the quest for truth which must be the object of the investigative and trial process, the role of forensic science can be determinative. We must continue to build up our scientific resources.

CONCLUSION

65. There is a great challenge ahead for the Criminal Justice System Ė to win the confidence of everyone, directly or indirectly affected by it, so that they are convinced that it produces just outcomes, that the wrongs done to victims of crime are fairly and properly vindicated by the courts. If we are to achieve that, we must be prepared to discard old ways of proceeding which are no longer fulfilling their original purpose, and be prepared to think creatively to achieve solutions which meet our real needs.

66. We are not on the verge of incremental change; we are on the verge of massive change. That is appropriate for a society about to enter a new millennium. I hope and believe though that it is change that will produce new respect for and real confidence in the criminal justice system for the future. All of us in this room have a part to play in that and will affect in some measure great or small the way in which the criminal justice system is viewed in the future. That is our unfinished business, and a challenge for us all.