Examination of Witness (Questions 1 -
19)
TUESDAY 25 JANUARY 2000
MR DAVID
CALVERT-SMITH
QC
Chairman
1. Good morning, Mr Calvert-Smith. May I welcome
you to the Committee for the first time. I happen to know it will
not be the last.
(Mr Calvert-Smith) So do I.
2. This is the first of two evidence sessions
we are having into the proposals by the Law Commission to amend
the double jeopardy rule; and following your good self we shall
be seeing someone from the Association of Chief Police Officers,
and next week we are meeting representatives of the Criminal Law
Committee of the Law Society and the Criminal Bar Association.
So thank you for making time to be with us. Mr Calvert-Smith,
can you give us a rough estimate of the number of people who eventually
might be brought to justice, if the Law Commission proposals were
already in effect; we are trying to get a sense of the size of
the problem?
(Mr Calvert-Smith) I would imagine that in a 12-month
period it would be astonishing if there were more than a handful;
bearing in mind the massive hurdles which are put in the way of
the procedure, and the general feeling, I think, among all practitioners,
myself included, that the principle of double jeopardy is a valid
one, that the state should not, except in quite exceptional circumstances,
be allowed to have a second go.
3. Thank you. Again, just to try to help us
get a better feel for this, can you give me some examples of cases
in which the prosecution was surprised at the initial acquittal,
and where new evidence has subsequently become available?
(Mr Calvert-Smith) We have been very hard put to it
to come up with a particular case, but there are one or two reasons
which may lie behind that. First of all, because an acquittal
is now final, the police do not therefore routinely go around
looking for fresh evidence, because there is no point, there is
never going to be another trial; so that it is only occasions
such as the religious conversion-type situation, which was envisaged
in the report, where somebody actually comes forward, where one
would even get a notion that there might have been a possibility.
And, in those circumstances, the CPS almost certainly would not
be involved, because, once again, that is never going to lead
to a trial and therefore the CPS are never going to be engaged.
There are a large number of cases in which one thinks, "Well,
if only DNA testing were more sophisticated, or if only such and
such a scientific technique could be developed still further,
we would like to have another go," but I am actually not
in a position to say I can give you a set of circumstances in
which, had this new procedure been in operation, we would have
gone again.
4. But it must be possible, within a particular
CPS office, where work on one case rings a bell on a new case,
perhaps involving the same witnesses, for example, and it is not
common but it is not totally uncommon in solicitors' cases?
(Mr Calvert-Smith) That has certainly happened, you
are absolutely right—I can write back to you—where
a new set of facts has made one think, "Oh, I see; we could
have proved that rape earlier if only we'd known what we now know."
But, I am afraid, again, I cannot today give you chapter and verse
on that; but I would be delighted to get right back to you.
5. One of the most substantial criticisms of
these proposals is going to be what, just for the sake of shorthand,
I will call "emotive" cases, sexual assault, rapes,
and stuff like this, where, when there is an acquittal, the people
most immediately involved feel wronged and cheated and that the
system has let them down. So what is your response to that, where
the proposals could be seen as giving victims and their families
a second bite of the cherry; is there a large risk of that?
(Mr Calvert-Smith) I think that you are absolutely
right to say that were these proposals to be enacted the focus
would be on high profile and dramatic cases, and in the report
the author makes it clear that the dangers of retrying somebody
when the case is high profile and emotive are greater for the
defendant than they would be in a humdrum case. On the other hand,
the public interest in protecting the public from a person who
is a continuing danger to the public, when there is clear and
unambiguous evidence that after all he perpetrated the offences
for which he has been acquitted, in our view, and, indeed, I think
in the Law Commission's view, tips the balance. But I believe
it is a point you are right to make; it is likely to be in high
profile cases. The judge who hears an application from the prosecution
to be allowed to reopen the case would no doubt take into account,
on ordinary `abuse of process' principles, the possibility of
a fair trial in such an emotive case.
6. One can envisage circumstances where some
of the red-top, tabloid newspapers get excited, with great screaming
headlines, "Why was she denied justice? Fill in this coupon
and post it to the Prime Minister," or whatever.
(Mr Calvert-Smith) Petitions from vast numbers of
readers.
7. And would it be your view that the judges
would not be as swayed by that as some other people might be?
(Mr Calvert-Smith) I think the judges, historically,
have been extremely firm where there has been public pressure
and have occasionally made themselves extremely unpopular as a
result. I do not think there is any danger that the current judiciary
would be swayed by tabloid headlines, or petitions from their
readers.
Mr Cawsey
8. Mr Calvert-Smith, the Chairman started with
a couple of general questions about trying to set the scene for
what all this is about, and it is that I want to go back to. You
said, in your first answer, that probably there would only ever
be a handful of cases, and the reason for that is that the hurdles
would be set very high and that that was important because of
the general principle of double jeopardy. Could you explain to
me, and for other members of the Committee, why that principle
is seen to be so important, because I think a lot of people would
think that, if somebody is guilty, particularly of a serious offence,
and evidence then comes along which was not available for the
first trial, that was a much more important principle than anything
else? So why do you think that the hurdle would be set so particularly
high actually to stop that happening?
(Mr Calvert-Smith) There are two principles. Principle
number one, the one that you have just enunciated, the whole point
of a criminal justice system is to bring criminals to justice.
Principle number two, the state is a far more powerful animal
than the individual defendant, the state should have only a limited
opportunity to bring proceedings in respect of crime, because
otherwise it would be seen as oppressive. Now I have been supplied,
very kindly, with a number of the written responses, and a number
of them make the distress point, which is made forcefully in the
report, the continuing distress; and I am bound to say, as DPP,
I have a great deal less sympathy with the distress of somebody
who actually committed murder, or actually committed a series
of sexual offences, than somebody who was innocent. I have more
sympathy with the point that it is more difficult for a defendant
to defend himself, or herself, the second time round, because
the crown then have an opportunity to fill the gaps; because there
will be a possible assumption in the minds of the jury that is,
"Oh, well, this has been brought back to trial, so he, or
she, must be guilty," so that the defendant—
Chairman
9. Forgive me, Mr Calvert-Smith, would it be
made clear, at the start of the trial, that this was a second
trial?
(Mr Calvert-Smith) The current system, when the Court
of Appeal order a retrial, as often happens, is that the decision
is made, depending on how the parties want to run the case, as
to whether there is going to be any reference to the previous
trial; but, in the sorts of cases that you referred to, everybody
is going to know, every reader of The Sun, at least, is
going to know, so that there is going to be that risk. And there
is, I think, an important principle, albeit one has to weigh it
in the balance, that a line has to be drawn somewhere. Now in
the case of war crimes it has been drawn nowhere, in fact, because
of the heinousness of the offence; which is why I am not in favour
of a limitation period, I would prefer an `interest of justice'
test, so that if the judge thought it was too stale then he would
not allow it. Does that answer the question?
Mr Cawsey
10. Yes, I think so. I think it is important,
that, at the start of all of this, it would be very easy just
to say, "It is an important principle," and we all just
nod sagely, without actually testing why we think there is an
important principle in the first place.
(Mr Calvert-Smith) If I could just come back to it,
very quickly, the Law Commission put the "Don't try people
twice" principle first, and the desirability of convicting
criminals second, in their Introduction, as being the two fundamental
principles. I would actually prefer to put them the other way
round.
Mr Winnick
11. Mr Calvert-Smith, if I can just return to
one of your replies a few moments ago, about the criminal justice
system and what it is all about, we are not concerned, are we,
with winners and losers, as if it were some sort of game, a clever
defence lawyer or very strong prosecution lawyer? What we are
concerned about, are we not, in the criminal justice system, is
bringing to justice those who are alleged to have committed crimes,
of one sort or another; is not that the position?
(Mr Calvert-Smith) Absolutely.
12. And, therefore, if someone were to go scot-free
and then evidence were to turn up later which would indicate that
the person may well be guilty, what sort of respect would there
be for the victim and his loved ones, for the memory of the victim
and those left behind, if no proceedings were taken against that
particular person?
(Mr Calvert-Smith) None at all, and I quite agree
that that is the reason why I support the Law Commission's proposal,
that if there is compelling new evidence there should be a right
to go again. Because I believe that the interests of victims have
been largely ignored now for hundreds of years, effectively, by
the system, and that the system is now, in various ways, without,
I hope, compromising the independence of the prosecution process
and the judicial process as a whole, being taken into account.
And my feeling is that a number of the responses, from organisations
for which I have great respect, have not sufficiently taken on
board the fact that victims are now actually an important part
of the system, where hitherto they had been rather ignored and
considered only a sort of, not an evil but a necessary bit of
the system. So that I do support, in a case where there is compelling
new evidence, the idea that we should be allowed to go again,
all other things being equal.
13. And no doubt you would put the emphasis
on what you have just said, on the word "compelling"?
(Mr Calvert-Smith) Yes, certainly.
14. This debate, which is going on, is really,
to a large extent, about serious cases. We are not talking, are
we, about relatively minor cases, however distressful they may
have been to the victims, they are serious cases? Now, as I understand
it, Liberty, which obviously is concerned with all aspects of
civil liberties, states that this should only occur, if there
is going to be a relaxation in the existing legal rules, in cases
of murder; you do not go along with that, Mr Calvert-Smith, do
you?
(Mr Calvert-Smith) I would go further. There is an
arbitrary line that has to be drawn somewhere; the Law Commission
suggest an offence which is likely to attract a three-year sentence.
In our provisional response to the Law Commission, we have suggested
that a `seriousness' test would be sufficient. I am bound to say,
I am rethinking it. I have read Liberty and I have read all the
other responses. There are a number of possible lists one could
draw up. One would be `indictable only' offences, murder, rape,
robbery, very serious assaults under Section 18 of the Offences
Against the Person Act, blackmail, and the like; however, that
would exclude some very, very serious offences, such as all drug
offences, which are `either way' offences, unless they are charged
as a conspiracy. Another way which I find attractive at the moment,
and we are formulating our final reply now to the Law Commission,
would be to use the list which is currently available to the Attorney
General when he refers sentences, which is `indictable only' offences,
plus a small list which is added to by the Home Secretary under
powers under the Act and has been extended to indecent assaults,
cruelty to children, and two other offences, which I have forgotten,
threatening to kill is one of them. But, to come back to what
I said earlier, I suspect that such a power would be used only
in very, very serious offences indeed, whatever the notional test
laid down in the statute. The police have got resources to think
of, and no doubt Mr Phillips will want to talk about that, and
they will want to get on with current offences.
15. Yes; and, presumably, when it comes to a
prosecution where a person has been acquitted, and there was such
a relaxation in the rules which you are talking about, unless
one—and I am talking about those responsible, the prosecution
authorities, such as yourself or your colleagues—were of
the view that this evidence was very strong and, the word you
used, compelling, the danger would be, would it not, that any
such relaxation would be discredited?
(Mr Calvert-Smith) Yes; precisely.
16. There would be a sort of public outcry,
"How many times must X," or Y, whatever the person is,
"be taken to court when he has already been acquitted once?",
or twice?
(Mr Calvert-Smith) Yes, exactly; there would be.
17. So the suggestion of the Law Commission
that if found guilty the sentence should be a minimum of three
years, as I understand it, the Law Commission have moved away
from that, have they not?
(Mr Calvert-Smith) I hope they have, because we are
going to try to persuade them to do so.
18. Yes; well, clearly, your persuasion is working.
Is there a danger that laying down detailed and vigorous criteria
for new evidence will in itself create in the minds of the jury,
in the second proceedings, which I am referring to, a presumption
that the defendant is guilty?
(Mr Calvert-Smith) I did refer briefly to this possibility
earlier, and it is clearly a point made forcefully in a number
of the written responses I have seen, that one of the very safeguards
intended to limit the right to a retrial may become a danger to
the fairness of the subsequent proceedings. All I would say about
that is that there have been a number of very dramatic examples
in recent years where trials, or retrials, ordered by the Court
of Appeal have taken place in circumstances in which had the jury
read the Judgment of the Court of Appeal they would have had no
doubt whatever, at the start of the trial, that the defendant
was guilty. But the trial has been fair, because jurors do, in
fact, now, obey the directions of judges and focus on the evidence.
So that the danger that a jury will be unduly influenced by the
fact that this is a retrial and, if they know the law, that a
High Court judge had said that it is highly probable that there
would be a conviction, which is the current test, at the moment,
I do not believe, once the dynamics of a trial take over, would
have the slightest effect.
Mr Winnick: I think my colleague is going to
continue. That was one question that he should have put in the
first place.
Mr Malins
19. Mr Calvert-Smith, a couple of questions
on the seriousness. We know that the Law Commission say that the
criteria should be that the likely sentence will be at least three
years. Is not one of the problems with that, first of all, that
judges vary so much in their sentencing; secondly, we do not know
whether it is on a plea, or on a fight, or mitigating practice,
and practices change? That is the problem with the three-year
suggestion, is it not?
(Mr Calvert-Smith) Those are two or three of the problems;
there is another one, which occurs to us, which is that a judge
might be influenced to pass a sentence of three years or more
at the end of the second trial in order to avoid any suggestion
that it had not been justified in the first place, when, really,
given his free will, he would have given 18 months, or some other
sentence.
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