‘Everyone knows the Criminal Justice System is in a state of crisis’
Everyone who works in the Criminal Justice System (CJS) knows there is a crisis and that if not addressed the entire system is in serious danger of collapse. The police won’t be able to handle the cases they are required to do. The Crown Prosecution Service (CPS) won’t be able to process cases as they should. Those cases that do get to court will keep collapsing. People will finally lose confidence in the ability of the CJS to do its job.
This is no idle scaremongering, it is already happening. Along with the current scandal of cases that go to trial when the prosecution have failed to make proper disclosure of what is called unused material but is in fact vital evidence in the case, some of you will have read the recent news of the rape case where nine months after the report of the offence the CPS recommended to the police that charges be laid. Nothing then happened for three years before anyone thought to apply for a European Arrest Warrant as the alleged offender was now abroad. Even then there were further unacceptable delays before the woman finally lost patience and all hope of justice and decided to withdraw her complaint.
I suggest there are three factors at work here that have finally come together to create a perfect storm that has resulted in the situation we now face.
First, there has been over the last twenty or more years a series of changes in the law that were designed and have made the situation of those accused of offences more perilous, reduced their chances of a fair trial and with that their prospects of acquittal, and threatens to increase miscarriages of justice and unjust convictions.
Second, there has been a culture shift especially in relation to sex cases which is now exemplified in a policy that requires the police to ‘believe the victim’ and abandon the principle of investigating a case properly and impartially which in my view has contributed directly to recent miscarriages.
Third, there have been huge cuts in the funding for the police and as a result far fewer officers to do the work. The same has been a recurring problem for the CPS which doesn’t have the resources required to fulfil its mandate. For the legal profession there have been huge cuts in fees for the preparation and running of criminal trials. It came as no surprise to many of us therefore that the old issue of disclosure failures has again reared its head.
Changes to the law
I have been in this job 40 years. That is long enough that I can remember when police would claim that every word that had been said in a two hour interview had been accurately recorded in a pocket note book despite the note being no longer than a few pages. Then we had contemporaneous notes. Beautifully written pages of an interview in which a defendant had vigorously denied an offence for some time before inexplicable giving in and confessing all. Both perfect opportunities for the police to claim a suspect had confessed when he hadn’t.
The Police and Criminal Evidence Act 1984, which came into force in 1986, revolutionised procedure in the police station. In came custody records which recorded what happened to a suspect held in a police station; interviews had to be recorded on tape so everyone could listen to what had been said.
Suddenly everyone stopped confessing. Police were furious and it took a series of Court of Appeal decisions to explain to police officers that access to a solicitor meant access when the suspect wanted one not when it was convenient to the police to allow one.
But that was 1986, over thirty years ago. And since then I cannot recall a single provision in an Act that was designed to protect the rights of those accused of crime.
There have, however, been plenty of measures clearly designed to make life more difficult for those accused of crime – in short designed to bump up the conviction rates. Whilst that might be a laudable aim in itself, it is a sad fact evidently lost on government ministers that you can’t increase conviction rates just of the guilty. Rather, it means sacrificing the innocent as well, and bit by bit that famous saying of Sir William Blackstone that it is better that ten guilty men go free than that one innocent man should be condemned gets turned on its head.
And so we have seen the end of the requirement for a warning about the dangers of convicting in the absence of evidence to corroborate a complaint of a sexual offence (section 32 of the Criminal Justice and Public Order Act (CJ&POA) 1994). This may not have been greatly mourned at the time but at that time there were few prosecutions for sexual offences going back decades as we see today. Now we are in the grip of a collective nervous breakdown about the extent of sexual offending with no limit on the age of allegations being prosecuted, the decision to abolish the requirement for at least a warning about the lack of any corroboration for the evidence of the complainant looks more short-sighted than ever.
Adverse inferences from exercising what is still called the “right to silence”, were introduced by section 34 of the CJ&POA (interviews) and section 35 (evidence). How can it still even be called a right when you get criticised for exercising it? How many other rights can you think of that result in you being criticised when you exercise them? These act as an invitation to a jury to conclude that a silent defendant must have something to hide and is therefore guilty when there might be all manner of perfectly sensible reasons for not answering police questions in interview (often at a time when the strength of the police evidence is far from clear) or not giving evidence in court when you know you will be no match for a confident well educated barrister.
The right of silence, the right not to incriminate yourself remains in my view, a key pillar of any society that purports to have fair trials and to follow the rule of law. If the prosecution cannot prove a case against someone without getting a confession then my view is the prosecution should not go ahead. I don’t believe that way leads to the end of civilisation. The Americans thought the right not to incriminate yourself was so important it is enshrined in their Constitution, drafted in the 1780s, and I do not think there is any evidence their criminal justice system functions any less well on that account.
The requirement to serve defence statements was introduced by the Criminal Procedure and Investigations Act (CPIA) 1996. Allegedly defective Defence Statements, because they lack sufficient detail, also attract adverse inferences. It seemed to me at the time and still does to fly in the face of an adversarial system. Although of course therein lies another issue. There are those, particularly amongst the higher judiciary, who think we ought to move more towards an inquisitorial system in which there is greater openness between the parties.
The Defence Statement and the requirement to serve one was sold to us as a sort of quid pro quo for greater disclosure, the idea being that if the defence set out their case the disclosure of relevant material will follow. As we have been so eloquently reminded by a spate of recent cases disclosure remains a serious problem. At the time the CPIA became law the argument was that there had been serious miscarriages of justice in notorious cases such as those of the Birmingham Six and Guildford Four because of a failure on the part of the prosecution to disclose material that might help the defence. Many of us thought the whole point of the CPIA was to try to deal with this problem.
But what the CPIA did was to replace a system in which it was the police who decided what should be disclosed to the defence with a system in which it was for the police still to decide what should be disclosed to the defence. In other words, no real change at all.
For all that we get lengthy schedules of disclosure there remain too many cases in which information is not disclosed that the prosecution should know full well ought to be disclosed because it easily meets any test for disclosure. Leaving disclosure in the hand of one party to the proceedings is obviously not the right solution. There were concerns raised by the police at the time about “handing the keys to the warehouse” to the defence, but frankly it is the defence and only the defence who are in a position to know what material the prosecution has which might assist the defence case. Until that concern is addressed the problems will persist.
Section 41 of the Youth Justice and Criminal Evidence Act 1998 imposed strict limitations on legitimate questioning in sex cases. You don’t have to be a fan of Donald Trump’s approach to sexual behaviour to realise what problems this was likely to throw up. In fact as you will no doubt know from the case of R v A (No.2), section 41 was initially interpreted so strictly that it prevented a man who claimed he had been in a relationship with a woman for some time from referring to the occasions when they had undoubtedly had consensual sex in order to explain his belief that she was consenting at the time of the alleged offence. The House of Lords declared the section incompatible with the right to a fair trial guaranteed by Article 6 of the European Convention on Human Rights and said the section would have to be “read down” in order to avoid gross unfairness. That section of course has caused plenty of controversy as the recent re-trial of Ched Evans shows.
Of course, witnesses must be treated with respect and I am not for one second suggesting we should return to the days when apparently some defence advocates thought a good way of winning the case was to humiliate a woman complainant with questions about what underwear she was wearing at the time. Equally however we cannot allow what has to be a careful compromise between the rights of both parties to become so one-sided that properly admissible evidence is excluded on the specious grounds that this only adds to the suffering of the complainant and merely compounds the suffering caused by the alleged offence. Allegations of sexual assault are very serious. Those convicted can expect very long prison sentences. As a result allegations such as rape cannot and should not be accepted at face value. They must be tested in court by thorough and appropriate questioning.
The regular use of any evidence of an accused’s bad character was permitted by the Criminal Justice Act (CJA) 2003. For as long as any of us can remember the bad character of a defendant had always been kept out save for certain exceptions because everyone accepted that the prejudicial effect of a jury trying a case knowing that the defendant had form for the offence charged made his chances of acquitted disappearingly small. This measure was introduced by Labour Home Secretary David Blunkett, thereby turning Tony Blair’s famous claim that Labour was going to be “tough on crime and tough on the causes of crime” into what in effect became “tough on crime and tough on those accused of crime”.
The same could be said about the hearsay provisions in the CJA 2003. From long ago in our history it was one of the corner stones of English law that hearsay evidence with all the risks about unreliability was not allowed save for a very few exceptional circumstances. Now the law allows the police to tip off the witnesses they don’t have to come to court if they claim they are scared of the defendant or his mates. Hearsay evidence may be very convenient to the police and prosecution but its widespread use is not compatible with an adversarial system. Its increased use however is all part of the drift towards a more inquisitorial system in which everything vaguely relevant gets thrown in, the judges think it best to leave it to the jury, and the jury are then asked to sort it out.
The CJA 2003 even allowed police officers to sit on juries. How can that possibly be fair and what possible reason can there have been for such a change unless it was intend to help push up conviction rates?
Section 28 of the Youth Justice and Criminal Evidence Act 1999 allows for cross-examination of complainants in certain cases, mostly those involving sexual allegations to be conducted in advance of the trial and after your list of questions has been “marked” by the judge. This is not something I have personally been required to do but as I am sure you will know some judges see this as a chance to emasculate a half decent cross-examination in the full knowledge the Court of Appeal will back them up. This is a provision that only someone with no experience of trials could have dreamed up. Trials are dynamic processes. How the evidence finishes up at the end of the case is often quite different to how it looked at the start.
Questioning a witness in an evidential vacuum in advance of the trial is a travesty that our forebears would have regarded with horror. It is all part of the new cuddly idea that witnesses in sexual allegations can’t be making it up and have to be believed for fear of doing them even more damage. It has no place in an adversarial system where allegations must be challenged robustly.
No advocate who wants to win the case can risk turning the jury against him or her. Of course, questioning has to be sensitive. You can’t cross-examine a five-year-old making an allegation against her step-dad like you can a flying squad officer. On the other hand, we don’t need witnesses being molly-coddled in the way envisaged by section 28.
And all this designed to bump up conviction rates with never a care as to whether this means bumping up the rate of wrongful convictions.
And finally, there was an important amendment to the rules on loss of control (the old defence of provocation) in the Coroners and Justice Act 2009 which took sexual infidelity out of the equation. No one condones domestic violence. When it results in the death of a woman it is particularly shocking. But equally everyone knows than that nothing is more likely to provoke a spontaneous outbreak of anger and violence than suggestions of sexual infidelity. Denying an accused a defence based on that simple fact of life is unjust.
So, you can see that we have been merrily stoking the fires of potential miscarriages of justice or some years now.
Changes in policy
A sense of moral panic has gripped social workers and senior police officers who have realised far too late in the day that for years they let down many complainants in sexual assault case because there was a time when women weren’t taken seriously and children weren’t even listened to. Now there is an unseemly scramble of back-covering which has meant we have simply traded one bad policy for another.
In recent years police officers have been instructed by the College of Policing that they must “believe the victim” because if they don’t they risk adding further to the trauma that person has already suffered. Assuming of course the allegation is a true one.
That policy is wrong on a number of levels as the former High Court judge Sir Richard Henriques pointed out in his 2016 report when he said, first, no one should be referred to as a victim until the allegation they make has been proved either by a guilty plea or by a verdict of a jury. Second, it is not the job of the police to believe any person who makes a complaint. That is a matter for the courts. Of course, they should treat a complainant with respect and courtesy but the police are there to investigate an alleged crime, see where the evidence leads keeping a mind open to the possibility that evidence will be found that undermines the prosecution case. It is not the job of the police to favour one side against another.
As Sir Richard pointed out “believe the victim” undermines the presumption of innocence by assuming from the very outset that the allegation is proved.
Such policies lead to a situation in which the police can be duped by a fantasist such as man known as “Nick” (the allegations that a ring of paedophile senior politicians and other establishment figures were having sex orgies with young boys and murdering them into the bargain). And you will no doubt recall that a senior officer involved in that investigation announcing that in his opinion Nick’s allegations were credible when it was none of his business to do anything of the kind.
I have no doubt this policy has contributed to the atmosphere in which near disasters like the cases of Liam Allen and Danny Kay could happen. After all, if police officers are told by their managers that they must believe the victim why would they want to go looking for evidence that might undermine that allegation? Why interrogate a complainant’s phone when you might find unhelpful messages that destroy the complainant’s case?
A case in Oxford recently ended with the jury acquitting seven men of a series of allegations of underage sex. As a direct result a second trial of another ten men was abandoned. When the acquittals were reported in the press the Senior Investigating Officer stated that:
It was right that the case was brought to court so that a jury could hear and consider the evidence and the defendants could have an opportunity to answer to the case against them. Thames Valley Police respects the decision of the jury.
That level of ignorance of the purpose of a criminal trial will shock any first-year law student. Since when did we decide to put people on trial so that they have the opportunity to answer the case against them when in fact there is no such case?
I don’t think anyone involved in criminal cases ever thought that it was only sex cases that were encountering problems with disclosure. We had the recent example of a people trafficking case that collapsed because of major disclosures failures. Five years ago I was involved in a multi-handed murder trial which collapsed because the police failed to disclose evidence that supported the defence case that what had been intended was a knee-capping and not a murder, so this problem although very serious is not one of recent making. Back in 2011 the trial of a large number of activists who had tried to shut down a power station collapsed because the police had failed to reveal the activities of an undercover police officer, so this is something that had been going on for years. It is of course good that the matter has finally become of interest to the press and that finally something may actually be done about it.
Funding for the CJS
The CPS has always been under severe financial pressure. Staff retention and sickness are other problems that arise from unrealistic caseloads. Cuts to police numbers and resources have been well advertised. At the same time fees paid for criminal work has been slashed by Labour, Coalition and Tory governments.
The current fees structure for legal aid in crime is more than twenty years old. There have been no pay increases in that time. Instead there have been huge cuts so that lawyers are often paid less today than was the case before the current fee regime was introduced. Lawyers usually do not get paid for reading unused material. Barristers like Julia Smart, who represented Liam Allen do work like that every day of the week out of a sense of pride in the job and a passion to do the job properly. But there is a real risk that hard pressed defence lawyers will make mistakes, or worse not do the work required that also lead to miscarriages.
I don’t take much pleasure in being right. Some of us have been saying for years that cuts have consequences. Few public services have much fat to spare and the CJS is not one of them. We have been cut beyond the bone and the fabric of the system is collapsing.
It was shameful that the Director of Public Prosecutions when announcing a review of all current sex cases to see if there had been similar issues about disclosure failed to mention the lack of resources her service has to cope with. She owed it to the employees of the CPS as well as everyone affected by crime to speak out and say that what was happening had to be down at least in part to the endless cuts to resources.
And the government are no better. The Attorney-General recently went out of his way to tell the House of Commons that resources and cuts had nothing to do with the recent spate of collapsed cases.
The CJS has also not been helped by the fact that we have had a series of Secretaries of State for Justice aka Lord Chancellor who few had ever heard of, who have appeared to have little interest in their department or seen it as an opportunity to advance their own careers. So we had the truly dreadful Chris Grayling with his slash and burn policy, Liz Truss who evidently didn’t understand her job or weren’t there long enough for anyone to notice such as David Lidington. Michael Gove did express some concerns but was almost immediately moved because of Brexit. What the CJS badly needs is a minister who cares about justice, is embarrassed by the dreadful state of the current system and is prepared to fight for more resources.
The failures of the Court of Appeal and the CCRC
It seems to me that the Court of Appeal (CoA) has lost its way. The CoA seems to me for some time to have become less and less interested in dealing with miscarriages of justice unless the case is entirely blatant. Procedural errors, incorrect rulings on admissibility of bad character and hearsay are shrugged off as being well within the discretion of the judge and errors by the judge in summing-up are dismissed by claiming that the case was so overwhelming that it wouldn’t have made any difference if the judge had got it right.
Nothing more clearly illustrates the problem than the attitude of the courts towards joint enterprise. I blame the Supreme Court who made it clear in paragraph 100 of the judgment in R v Jogee that the mere fact that the courts had spent the last 30 years misdirecting juries about the law on joint enterprise was no reason for finding convictions unsafe. Emboldened by that the Court of Appeal has shown scant interest in seeking to remedy potentially wrongful convictions.
You will be hearing from representatives from the Criminal Case Review Commission (CCRC). I have no doubt they will tell you how keen they are to work with you but that if they are to make any progress you need to make an application. They will urge you to contact them possibly in advance of your submission so they can help on specific points. And all for what?
This is an organisation that likes to say “No”. They have a high success rate of 70%. They are keen to protect that success rate and in my view they have become slaves to it. They are required to second guess what the CoA will do if they do refer the case and they know better than anyone that the CoA is hostile to fresh appeals. They won’t take risks. To many of my colleagues it appears the CCRC has been cajoled into not making too many references and in return the courts will back the CCRC up when it refuses to refer a case. There has not been a single contested judicial review in which a decision of the CCRC not to refer has been overturned.
The CCRC has been tamed and does as its told and miscarriage cases do not make the progress they should. The culture of the CoA also needs to change. Rather than the endlessly defensive position and constant attempts to limit the number of appeals they ought to recognise that it is their job to ensure so far as they can that wrongful convictions can be properly addressed rather than being summarily dismissed.
Those of you doing miscarriage work can perhaps now see at least in part how we came to be in the position we find ourselves and what we are all up against.
Author: Mark George QC
Mark George QC is a highly experienced defence trial advocate of more than 30 years’ experience. Mark works from Garden Court North chambers