THE 1992 TOM SARGANT MEMORIAL LECTURE
DELIVERED AT THE LAW SOCIETY
DECEMBER 8TH 1992
by MICHAEL ZANDER
(Professor of Law, London School of Economics)
THE ROYAL COMMISSION'S CROWN COURT SURVEY AND THE CRIMINAL JUSTICE SYSTEM
The subject of the lecture is the Crown Court survey which I conceived and carried out for the Royal Commission on Criminal Justice of which I have the honour also to be a member. The Commission is due to report next June. The survey will be published sometime before then as one of its twenty or so research reports.
When Peter Hill, the chief organiser of the lecture, approached the Royal Commission to ask whether there might be some way of associating the Commission with this year's lecture the thought was conceived that it might be appropriate to use the occasion to present a first, pre-publication impression of the results of the survey. At that time the field-work had barely been completed and no results were available. But it seemed likely that the study would produce information about the operation of the criminal justice system that would be of interest to this audience. I was happy to agree to the suggestion.
It is of course unusual to release the results of a study conducted for a body such as a Royal Commission in the form of a public lecture, and the more so since this lecture is given well in advance of publication of the report - the date of which is as yet uncertain. It is also unusual for a member of a Royal Commission to undertake a major study for the Commission. One consequence is that I have had to curb my natural inclination to comment on the results of the study -lest it be thought that I am speaking for the Royal Commission. But I hope that the results are sufficiently interesting to need no comment or pointing up from me. Moreover we have a number of distinguished commentators who will be able to perform this function.
THE NATURE OF THE STUDY.
The study was perhaps the most ambitious ever undertaken in the courts in this country. It consisted of questionnaires administered to the main actors in every case in every crown court in England and Wales for a two week period in February l992. The questionnaires were distributed by the court clerks to the judge, the defence and prosecution barristers, the defence solicitor and the CPS, the police, the defendant - and to all twelve members of the jury. Including the court clerks' own questionnaire, there were therefore nine different questionnaires about each case.
We had complete cooperation and indeed wholehearted support from every quarter from the Lord Chancellor and the Lord Chief Justice down. There were some who were sceptical whether we would get permission to address a questionnaire to the judges. But Lord Lane, the then Lord Chief, wrote to us: "I agree that the participation of the judiciary in your study is essential and gladly give my respectful blessing".
The idea of administering a questionnaire to the jurors I confess was not my idea. I assumed without even checking that the Contempt of Court Act made such a thing impossible. The idea was put to me by a senior circuit judge. On checking the Act I found that although it barred questions to jurors about their deliberations on the question of guilt it did not necessarily prohibit more general questions about jury service. It took some effort to persuade others that we ought to be allowed to question jurors -- and a considerable amount of time was spent in drafting the questions to jurors and getting them approved at the highest level. In order to get official approval we had to agree that the jury questionnaires would not only be anonymous but that they could not be linked to any of the other questionnaires. This unfortunately meant that we could not contrast the response of jurors with those of the other participants on the particulars of the cases.
It was not just the jury questionnaire that went through successive drafts. All nine were redrafted over and over again, to a considerable extent as a result of invaluable help from the large number of bodies and individuals we approached for assistance. Some had fifteen or even more drafts. Everything had to be done at a frenetic pace since the Royal Commission was working to a fiendishly tight deadline.
My main co-worker at that stage was Rachel Craig of British Market Research Bureau, a market research organisation, which had been brought in on the advice of the Home Office Research and Planning Unit to conduct the survey for us. My job was to produce the questionnaires, hers was to put them into user friendly form and to handle all the logistics, including the printing, distribution and collection of the questionnaires. Her organisation did all the punching of the results onto tape.
The laborious and complex business of computer analysis was expertly done over a period of many months by Paul Henderson of the Home Office Research and Planning Unit. Our chief aide in the Lord Chancellor's Department throughout was John Tanner who month after month was immensely helpful.
Given the complexity of the project and the tight deadline it was hardly surprising that not everything went right. With the advantage of hindsight it is easy to see some things that might been been done differently. In particular I regret that there was no time for a second pilot to refine the questionnaires. But given the time available, I believe there was not more we could have done to ensure the survey's success.
An important feature of the study was the opportunity of contrasting the views of different respondents involved in the same case. What we had not anticipated was that they might disagree amongst themselves on basic factual questions -such as whether the defendant gave evidence or whether he pleaded guilty or not guilty. Where such differences of opinion emerged we took a majority view.
VALIDITY OF THE RESULTS
But what weight can one put on results from questionnaires, especially when they were filled in by the respondents without assistance from interviewers? It is well known that questionnaires are a problematic research tool. Certainly I would not wish to suggest that they are an ideal method of investigating problems. But any method of research has its problems. If we had used interviewers for instance we would have restricted ourselves to a tiny sample with all those disadvantages, whereas we had a huge sample.
The weight that can be placed on the findings obviously depends on whether the questions put were sensibly drafted - which, with a small number of exceptions, I believe was the case. Certainly we had a great deal of help from many quarters to get the questions right. It depends also on whether the questions we put were answered accurately. In some cases, not surprisingly, it was clear that respondents had not filled in the long, complex questionnaires according to our indications. But I hope that by and large answers were reasonably accurate. Also, one of the advantages of a huge sample is that the problem of some incorrect responses is to some extent mitigated.
The third consideration is whether the study has statistical validity. A statistically valid sample entitles one to generalise from the results. A survey which is not statistically sound cannot safely be made the basis of generalisations.
One of the critical factors is the response rate to the survey.
Response rate is determined not primarily by the numbers of responses but rather by whether the responses represent a sufficiently high percentage of the universe being surveyed and whether the universe itself is properly representative. So 75 responses from a sample of l00 (a response rate of 75%) is statistically valid. 7,500 responses from a sample consisting of l00,000 (a response rate of 7.5%) is statistically invalid.
Many who heard about the study predicted that we would not achieve a respectable response rate. The prospect of getting significant numbers of judges, busy practitioners or jurors to fill out lengthy questionnaires did indeed seem problematic. The longest questionnaires addressed to barristers had close to two hundred questions running to over thirty pages. The jury questionnaire had 81 questions over 14 pages. Would people be willing to complete such long questionnaires in their own time?
The answer proved to be for the most part yes. The response rate was astonishing. I will not weary this audience with all the statistical details. But just to give one or two examples, there were jury replies from 819 juries which we estimate was 96 per cent of all the juries that sat during the survey period. Moreover the numbers of jurors per jury who replied was quite amazing. There were some 7,600 juror questionnaires that we were able to assign to a particular jury. In 85 per cent of these 756 juries, ten or more jurors returned their questionnaires. In well over 90 per cent of cases the returns included one from the foreman.
The response rate of both judges and court clerks was a 86 per cent of the cases in the sample,the response rate of prosecution barristers was 72 per cent and of defence barristers 67 per cent.
The only categories of respondent whose response rate was under 50 per cent were defence solicitors with 42 per cent and defendants l9 per cent. Moreover a disproportionate number of defendants who replied had been acquitted.
The response rate of defendants was too low to be statistically valid. I greatly regret this but one can hardly be surprised. If one is a defendant, the closing stages of the case or immediately after it is finished are not ideal moments to be asked to fill out a questionnaire. It was also not surprising that we had a disproportionate number of defendants who had been acquitted responding.
We ended up with over 22,000 questionnaires for analysis. I am advised by my statistician co-author Paul Henderson that with the exception of the defendants the response rate is high enough to be statistically valid and therefore representative both of the case-load in the crown courts and of the various categories of respondent.
We had questionnaires from respondents other than the jury in more than 3,000 cases. They included almost all the cases in which the defendant pleaded not guilty. Inevitably there were some cases in regard to which no questionnaires were returned but almost all of these were guilty plea cases. Given the speed with which guilty plea cases go through the courts (especially on Friday which in most courts is `plea day') it was hardly surprising that the court clerks failed to issue questionnaires in some of these. But averaged over all the courts, the number `missed' was under two per court room for the survey period.
It is impossible in the space of a lecture to give a full account of the results obtained from the questionnaires with their nearly one thousand questions. The full report runs at present to well over 200 single-spaced pages and by the time it is published it will probably be considerably longer. This lecture can therefore give only a glimpse of the results.
Inevitably I will be referring to figures. But knowing what a misery it is to try to grasp figures at a lecture I have prepared a handout on which they are set out which will be handed around at the end of the lecture (and before comments and discussion) for those who would like it. The text of the lecture will be published by the New Law Journal.
I thought I would start by looking at some of the results from the jury study, not least because there has never before been a systematic attempt to find out what jurors think about anything and the results may therefore be of particular interest.
What did jurors think of the system?
It turned out that jurors were mainly very positive about what they experienced. No less than a third of jurors thought the jury system was a "Very Good System" and nearly half (46%) thought it was a "Good system". Between them these two categories accounted for around four-fifths of the respoondents. Fifteen per cent were neutral. Only a handful (4%) thought it was a "Poor" or "Very Poor" system. Moreover, the proportion of those who thought poorly of the system was consistent through all age groups.
Jurors were extremely positive about the performance of both barristers and judges. Asked what they thought about the barristers in regard to "knowing the facts", "putting the case across" and "dealing with the opponent's case", the overwhelming majority thought the barristers did "Very well" or "Well". There were positive ratings on each of three items from 85 to 90 per cent of jurors.
The verdict on the judges was even more positive. They were evaluated on "Keeping the proceedings under control", "Keeping a fair balance between defence and prosecution during the trial" and "Explaining things to the jury". The proportion of jurors who thought they did "Very well" on all three was close to 90 per cent. There were virtually no jurors who thought they did not do at least "Well.
The jury, chairman, was overwhelmingly in favour of wigs and gowns. Four-fifths (79%) thought barristers should continue to wear wigs and gowns; almost nine out of ten (88%) thought that judges should do so. Regrettably, we did not put this question to the judges or barristers themselves nor to defendants.
In cases where the jury had seen the defendant sentenced, almost a third of jurors said they thought the sentence was broadly as they had expected, a third said they had had no expectations, whilst the other third were about equally divided between those who said it had been more severe and those who said it was less severe than they had expected.
Could the jury follow the evidence?
On the crucial question whether the jury thought it could follow the evidence the jurors themselves had no doubt that they could. Under ten per cent of jurors said they had found understanding the evidence difficult. This was true even in cases involving scientific evidence. Asked "Do you think that the jury as a whole was able to understand the evidence", the answers was almost unanimously yes. Over half of all jurors (56%) thought that the whole jury could understand the evidence and another two-fifths (41%) thought most understood. The view of the foremen was the same.
The same was true of the question whether the individual jurors and the jury as a whole could remember the evidence. The proportion who had any difficulties was under ten per cent. Asked whether the jury as a whole could remember the evidence, in over half the cases (55%) foremen thought that none found it difficult and over a third (37%) said only a few jurors had found it difficult. (It was useful to discover in this context that the jury was out to consider its verdict for less than an hour in a third of all cases, for between one and two hours in a little under a third (29%) and for between two and four hours in another quarter of all cases (25%) Well over four-fifths (86%) of juries therefore deliberated for under four hours and over three-fifths (62%) deliberated for under two hours.)
Few jurors said that they had trouble with the judge's summing up on the law. Six per cent said they found it "Fairly difficult" and under one per cent said they found it "Very difficult".
When asked "Do you think there were any members of the jury who could not really cope with the case?", four-fifths (78%) of jurors and of foremen (79%) thought that all the jurors could cope. Some said they were not sure. Under a tenth of jurors (8%) generally and ll per cent of foremen thought there were some jurors who could not cope.
According to the foremen only 0.2 per cent of jurors could not understand English, l per cent of jurors could not understand the details of the case and l per cent could not understand any case.
What do judges and barristers think of the jury system?
Asked what they thought of the jury system in terms of generally getting the right result,the judges thought the jury system was "Good" or "Very good" in 79 per cent of cases, the prosecution barristers in 82 per cent and defence barristers in 91 per cent. The judges thought it was "Poor" or "Very poor" in eight per cent, prosecution barristers in four per cent and defence barristers in two per cent.
The lawyers thought that in the great majority of cases the jury understood the evidence - prosecution barristers 94 per cent, defence barristers 89 per cent, defence solicitors 83 per cent, CPS 85 per cent. The judges were not asked this question but 93 per cent said they thought the jury would have been able to understand the scientific evidence in the cases where there had been some.
The lawyers equally had no doubt that the jurors would have been able to remember the evidence. (Prosecution barristers 97%; defence barristers 96%; defence solicitors 86%; CPS 91%.)
We also wanted to find out what the participants in the case thought of the jury's decision. Here, not surprisingly, reactions depended somewhat on who was being asked the question.
What did respondents think of the jury's decision?
We asked whether the jury's verdict had been surprising in the light of the evidence. The judge,the barristers and the defence solicitors said they had been surprised in some l5 per cent of cases. The police and the CPS said they were surprised in about a quarter of all cases. So in the overwhelming majority of cases the verdict was not surprising but in a significant minority of cases it was "surprising".
Acquittals gave rise to considerably more surprise than convictions. The police and the CPS said they were surprised at almost half of all acquittals, compared with 8 per cent of convictions; the judge and the prosecution barrister said they were surprised at around a quarter of all acquittals but only 3-4 per cent of convictions; the defence barrister and defence solicitor said they were surprised respectively by 10-14 per cent of acquittals, compared with l4 per cent-25 per cent of convictions.
But regardless of outcome, there was much more agreement between all the respondents as to what the jury's verdict meant. All respondents agreed that in the great majority of cases the verdict was "understandable in the light of the evidence". The range of responses varied from 78 per cent for the police to 87 per cent for defence solicitors, with the judges at 85 per cent.
In around one tenth of the cases(l0-13%) the jury's verdict was said to be "Against the overall weight of the evidence but explicable".
There were a few cases (around l per cent) in which the verdict was said to be against the judge's direction on the law.
Finally, there was a proportion of cases in which the verdict was said to be "Inexplicable". The police thought that the inexplicable decisions amounted to 8 per cent of the total. The other respondents thought they amounted to between 2-4 per cent.
When the judge, the prosecution barrister or the police said a decision was "inexplicable" they were normally referring to an acquittal. When the defence lawyers said a decision was "inexplicable" they were as likely to be referring to a conviction.
What did respondents' think of the judge's summing up?
We asked the other participants whether the judge's summing up leaned toward one side or the other. All agreed that in the majority of cases the summing-up was even handed. They also all agreed that when it was tipped one way or the other it favoured the prosecution more often than the defence.
When the defendants were asked for their opinion, they thought the judge was fair during the trial in four-fifths (81%) of cases and fair in his summing up in three-quarters(73%).
There was a clear statistical association between the thrust of the judge's summing up and the jury's verdict. But in the great majority of cases the fact that the judge's summing up favoured one side or the other reflected the relative strength of the evidence for both sides.
There were however a minority of cases in which the judge's summing up was thought to have been "against the weight of the evidence". According to the prosecution barristers, in most of these cases the summing up leant toward an acquittal; according to defence barristers, it mainly leant toward conviction.
Both barristers agreed that in the great majority of cases the judge's interventions favoured neither side. Both also agreed that where the judge's interventions favoured one side or the other, they favoured the prosecution more often than the defence. But whereas prosecution barristers thought there was not a great difference, defence barristers thought the judges were much more prone to make interventions favouring the prosecution.
Contact between defendant and his barrister
The defendant saw his client for the first time on the morning of the hearing in over half of contested cases and almost 70 per cent of cases in which the defendant changed his plea to guilty on the day. (2.5.10)
Defendants who saw the barrister for the first time on the day of trial said the conference lasted under l5 minutes in a third of cases, between 15 and 30 minutes in another third of cases, and over half an hour in the other third. The barristers' estimates were not very different.
Two-thirds of defendants said they had enough time with the barrister. Almost one third said they had not. By contrast, only a tenth of barristers and well under a tenth of defence solicitors thought the time for the conference had been insufficient.
When did the barrister get his brief?
In contested cases, half of prosecuting barristers and a third of defence barristers said they had the brief on the day before the hearing - or on the day itself.(2.1.5)
Nevertheless, overall more than 90 per cent of both prosecution (95%) and defence (93%) barristers said they had enough time to prepare the case. Of those who got the brief after 4pm on the day before the hearing, well over four-fifths of barristers for both sides said they had enough time to prepare the case. (It is relevant to appreciate that most cases are short. The average length of contested cases is seven hours.)
Returned briefs and whether they caused problems
rosecution barristers in contested cases said the brief had been returned by another barrister in over half of all cases (59%). Defence barristers said the brief had been returned in just under half (44%) of all contested cases. (2.1.8)
In more than nine cases out of ten where there had been a returned brief, the CPS and the defence solicitor both said that the replacement barrister had adequate knowledge of the case and that there had been no problems. There were only a handful of cases in which either the CPS or the defence solicitors thought the returned brief had created problems. (2.4.13;
Did defendants think that their barristers had done a good job?
Defendants thought the barrister had done a "good" or "very good" job in more than four-fifths of cases (85%). In ten per cent it had been "adequate". It was "bad" in only 4 per cent. Those who were acquitted were more positive than those who were convicted. But over seven out of ten convicted defendants (72%) thought the barrister had done a good job.
Defendants were equally positive about the work done for them by their solicitors. It had been "good" or "very good" in 83 per cent of cases and "bad" in only 3 per cent. (2.6.l8)
Did defence solicitors and the CPS think the barristers had done a good job?
According to defence solicitors, the barrister knew the client's case adequately in 99 per cent of cases pre-trial and at trial. There were no cases in which the solicitor thought the client had been seriously prejudiced at the trial by the barrister's inadaquate knowledge and only six in which the solicitor thought it had been prejudiced "somewhat". (2.5.27-9)
Overall, defence solicitors thought the barrister did a good job or very good job in more than 90 per cent of cases and a poor job in only 1 per cent. Defence barristers thought that defence solicitors did a good or very good job in three-quarters of all cases and a poor one in only 4 per cent. In the remainder they did an adequate job. (2.5.34/36)
The CPS said that in 98 per cent of cases the barrister had sufficient knowledge of the case at the hearing .
What did the police and the prosecution barristers think of the work done by the CPS?
The police were asked for their overall assessment of the work done on the case by the CPS. In two-fifths of cases (42%) the verdict was "good"(30%) or very good (12%). In another two-fifths or so (45%) it was "adequate". It was "poor" or "very poor" in a little over one tenth of cases. (2.4.20)
Prosecution barristers were asked the same question. In over half the cases the verdict was positive - "good" (41%) or "very good" (15%). In a little over a third (35%) it was "adequate". It was less than adequate in under a tenth - "poor" (7%) or "very poor" (0.2%). (2.4.25)
What did counsel think of the work done by the police?
Prosecution barristers were mainly satisfied with the work done by the police. In over a half of all cases it was either "good" (37%) or "very good"(17%). In almost a third (31%) it was "adequate". It was "poor" or "very poor" in l5 per cent.
What did the defendant and the defence barristers think of the work done by the defence solicitor?
Over four-fifths of defendants who responded said they were well satisfied with the work done for them by their solicitors - 58 per cent said it was "very good", 25 per cent said it was "good". Only 5 per cent said it was "poor" or "very poor". (2.6.17)
Not surprisingly, the result of the case did make a difference. Where the defendant had been convicted. 69 per cent thought the solicitor's work was "good" or "very good"; where he had been acquitted the rating went up to 92 per cent. But the fact that nearly 70 per cent of those who were convicted were so positive about the work of their solicitors is striking.
When barristers were asked for their overall assessment of the work done by their instructing solicitors, in the clear majority of cases they too were broadly favorable. In three-quarters of the cases (74%) the defence barristers said the work was "good" (37%) or "very good" (37%). In a fifth of the cases (21%) it was "adequate". It was "poor" or "very poor" in 5 per cent of cases.
The "innocent" pleading guilty
In cases where the defendant pleaded guilty to all charges, we asked the defence barrister:"An innocent defendant sometimes decides to plead guilty to achieve a sentence discount or reduction in the indictment. Were you concerned that this was such a case?"
In the great majority of cases the answer was no. But in 53 cases the answer was yes. Obviously the answer does not mean that the barrister was saying he thought his client was innocent - but only that he had a concern about the matter. (4.ll.2)
These 53 cases "grossed up" on an annual basis represent well over a thousand such "inconsistent pleaders" in the crown court per year.
We did not think we could reasonably ask defendants who pleaded not guilty whether they had committed the offence with which they were charged. But we did ask those who pleaded guilty whether they had committed that offence or a similar offence. Of those who replied, over 70 per cent said they had committed the offence charged and another l7 per cent said they had committed a similar offence. But there were 31 cases where the defendant claimed that he had not committed the offence. (4.ll.1)
How did the defendant make up his mind how to plead?
Over half the defendants said they made up their own mind how to plead - and over two-thirds said they never wavered in this decision. But one third said they did change their minds.(4.1.2/3)
Should the barrister and the judge be allowed to discuss plea and sentence?
We asked barristers and judges whether they wished to see reform of the famous l970 decision in Turner which inhibits judges from indicating to counsel what sentence they would be minded to impose if the defendant were to change his plea to guilty. The question asked was: "Do you think that Turner should be reformed to permit full and realistic discussion between counsel and the judge about plea and especially sentence?"
Nearly 90 per cent of barristers and two-thirds of the judges answered Yes. (4.l3)
How much time was wasted by cracked trials?
Last minute guilty pleas (known as "cracked trials") occur in over half of all cases listed as not guilty pleas. We asked how much time had been wasted when this occurred. In four-fifths of cases (80%), the judges said none of their time had been wasted, because they had been able to get on with another case or get on with work in their rooms. (5.8)
The court clerks said that no court time was wasted in 70 per cent of cases. (5.9)
But the police said that the time of hundreds of police officers and other prosection witnesses had been wasted when cases folded at the last moment. (5.3)
There were 24 cracked trial cases in which the CPS said that if the case had gone to trial the defendant would have stood a good chance of an acquittal and another 79 in which the chances of an acquittal would have been fairly good. "Grossed up" on an annual basis this would give over 600 cracked trial cases with a good chance of an acquittal and over 2,000 such cases with a fairly good chance of an acquittal pleading guilty. (5.22)
Prosecution barristers thought that in 67 guilty plea cases the defendant would have stood a fair chance of an acquittal if he had pleaded not guilty. (6.5.4) This represents over 1,700 such cases a year.
Weak cases that went for trial
The judges and the barristers said of one fifth of contested cases that the prosecution case was weak. Even the police thought that as many as l2 per cent were weak. The CPS thought that 6 per cent were weak. (6.5.1)
In most cases the judges and barristers agreed that even the weak cases should still have been brought. But there were some in which they said they should not have been brought. The prosecution barristers said there were 89 such cases - or well over 2,000 such cases a year. The judges thought there were ll6 such cases - representing over 3,000 such cases a year.
In most instances the weak cases ended in acquittals but there were a few that ended in conviction. Conversely there were also some cases (a greater number) said to be strong that ended in acquittal.
How often did the defendant exercise his right of silence?
The barristers and the police all agreed that around one tenth of all suspects were silent altogether. The barristers said that another one tenth refused to answer some questions. The police thought the proportion who refused to answer some questions was higher - l7 per cent. (When comparing these figures with those of other studies it must be remembered that those figures concerned only cases tried in the Crown Court.)
Where the defendant was silent, the jury normally learnt of the fact from the evidence.(l.2.5)
How common were ambush defences?
According to prosecution barristers there was an "ambush" or unexpected defence in some 7 per cent of cases. The CPS said l0 per cent. The police thought they occurred in 23 per cent of cases.
When we asked how often ambush defence caused serious problems, the CPS and the police agreed that this happened in under a third of ambush defence cases - which means 2 per cent of all cases according to the CPS or around 7 per cent according to the police.
Did the defendant give evidence?
The barristers agreed that the defendant went into the witness box in about 70 per cent of contested cases. He was less likely to go into the witness box where he had previous convictions. (4.5.1)
Those who went into the witness box had a distinctly higher acquittal rate than those who did not. (4.5.1a)
Did sitting in the dock impede the defendant's defence?
Defendants thought that sitting close to the barrister would have enabled them to helped the barrister put the case across in 60 per cent of cases. In almost exactly half that proportion of cases (29%) the defence solicitor agreed. (The defence barristers were not asked the question.)(4.8.1/4.8.3)
Did the judge know about the defendant's prior convictions?
In some three-quarters of all cases the defendant had previous convictions. The barristers thought the convictions were for similar offences in a little over half these cases. In most contested cases the judge had the list of previous convictions in front of him during the trial. (4.7.1)
Where the defendant had previous convictions, the jury came to learn of the fact in around one fifth of the cases - in four cases out of five because the defence introduced them. (4.7.6)
Should jurors know about the defendant's previous convictions?
Jurors were split more or less down the middle as to whether they always be told about the suspect's previous convictions. 58 per cent thought no, 42 per cent thought yes. (9.2.6)
How often was the admissibility of an alleged confession challenged by the defence?
According to the judges there were only 36 cases (5% of contested cases) in which the admissibility of a confession was challenged.(4.2.1)
Prosecution and defence barristers said that where interview evidence had been tape-recorded, there was no challenge in 90 per cent of cases. Where the interview evidence had not been tape-recorded there was a challenge to its admissibility in only one case out of five.
How often was scientific evidence challenged by the defence?
Scientific evidence was challenged by the defence in about a quarter to a fifth of the cases in which there was such evidence. Since there was scientific evidence in around a third of contested cases, challenges occurred in well under ten per cent of contested cases. (3.2.3)
When the defence were asked why the prosecution's scientific evidence had not been challenged, the reason given in nearly all cases was that there was no basis for disputing the evidence. (3.2.l5)
Were the rules of evidence applied by the judges sensible?
The judges and the barristers agreed in virtually all cases that the rules of evidence applied in the case were sensible. (4.2.3-4)
How often did the defence allege breaches of PACE or the PACE Codes?
According to defence barristers there were alleged breaches of PACE or the Codes in one tenth of contested cases; according to prosecution barristers in half that figure. (l.6.l)
Did exclusion of evidence by the judge signify serious criticism of the police?
According to the judges, in the cases where evidence was excluded it generally signified no criticism of the police, or at least no serious criticism. But there were a small minority of l5 cases in which the judges said exclusion followed serious breaches of PACE or the Codes of Practice or there were other serious criticisms of the police. There were four cases in which the judges said they thought the police should consider disciplinary proceedings against the officers concerned. "Grossed up" on an annual basis these four cases would represent more than 100 such cases in a year.
What do all these results mean? What would Tom Sargant have made of them? One thing they may mean is that the criminal justice system is perhaps working better than we have thought. If so, so much the better. I assume that, insofar as the survey conveys what looks like good news it will be regarded, to that extent, as broadly welcome.
But as I said at the outset, Chairman, because of my position as a member of the Royal Commission, I am not able to do what I would otherwise wish to do - to indicate what I think are the implications of the complex range of results that I have presented here. For tonight I must leave that to others. In due course, it is safe to assume that the Royal Commission will also express some views. Thank you.
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