Examination of Witness (Questions 20 -
39)
TUESDAY 25 JANUARY 2000
MR DAVID
CALVERT-SMITH
QC
20. Finally, on this, my general feeling is
that we need to be very tight in the use of our language, because
one does worry, does one not, about the use of serious, very serious,
compelling, high probability, etc., we are in language areas,
are we not; is not one of the problems with the word "serious"
the fact that some offences, even petty shop-lifting, might be
thought to be terribly serious if carried out by somebody in a
really public position, and it is an offence that is triable on
indictment?
(Mr Calvert-Smith) Quite.
21. For example. I give that just to illustrate
the fact that there is a language problem?
(Mr Calvert-Smith) That is a good point. There are,
however, already, in statutory form, provisions, for instance,
for serious arrestable offences, which are defined for the purposes
of the Police and Criminal Evidence Act and justify various searches
and actions by the police; so that there is a sort of criterion,
which, again, we have flirted with in our response to the law
Commission as to whether we should limit it to the serious arrestable
offences defined by PACE. But there are so many offences which
would not qualify, which might, might, justify a retrial, that
we have shied away from that.
Mr Singh
22. I just want to return to this point about
the jury at the second trial, and I am very concerned that one
of the criteria for the retrial is that the evidence must be substantially
stronger than at the first trial, with a high degree of likelihood
of conviction. Now if that criterion is set and it is publicly
known about, surely, any juror coming to that trial would think,
"Well, this is an open and shut case, this man (or woman)
is bound to be guilty otherwise this retrial would not be happening,"
and there is new evidence which is stronger than before?
(Mr Calvert-Smith) I quite understand that concern,
but I repeat what I said. My experience, as a practitioner for
many, many years, and, indeed, sitting as a Recorder for 17 of
those years, is that, once you get into the details of a case,
whatever the jury may have thought when they started quickly gets
relegated, and they feel, "Actually, we're the only people
who know, because we've actually seen the witnesses," and
any preconceptions they had disappear. A very high profile case
in which I was involved as counsel, though the jury never got
to reach a verdict, concerned the disaster at Zeebrugge, where
a coroner's inquest had announced, very publicly, that somebody
or other had committed an offence of manslaughter; the Sheen Inquiry
had placed the blame firmly at the feet of various people, and
so on. And the judge ruled, and I am sure his ruling would have
been upheld, that the jury actually would know all that, and clearly
they would start biased against the defendants, but that the dynamics
of the trial would mean eventually that they would try the case
on the evidence. And, as I say, when the Court of Appeal order
a retrial, or, as in another case I was involved in as counsel,
I make no comment, of course, on the accuracy or otherwise of
the verdict, where those alleged to have put words into the mouth
of Mr Silcott, who was alleged to have killed PC Blakelock, the
Court of Appeal had some very dramatic words to say about the
conduct of the officers when they upheld the appeal of Mr Silcott,
but the jury, in fact, acquitted those police officers, in the
end, and yet, had you read the papers, following the Court of
Appeal decision, you would have thought, "Well, how could
a jury possibly not convict," and yet, having heard the evidence,
they decided that.
23. So, in a retrial, a defendant would not
be proffered, bound hand and foot, for execution, so to speak?
(Mr Calvert-Smith) I do not believe that for a moment.
I believe English and Welsh juries are now, if they ever were
not, perfectly capable of taking on board the evidence that they
hear, to the exclusion of anything they may read or see.
24. One of the objections to removing the double
jeopardy rule is that the police might be less diligent in their
first investigation. How serious is that allegation; surely the
police would be just as diligent as they are now?
(Mr Calvert-Smith) I do not believe it has much force
at all. If I start from the reverse; no judge would ever allow
the prosecution a second bite at the cherry to make up for police
incompetence at the first trial, it would be inconceivable, and,
indeed, the Law Commission propose that the evidence should be
evidence which could not have been obtained even by the exercise
of due diligence, I believe is the phrase, and no prosecutor under
my control would ever consider that that was an appropriate way
of carrying on. So that if one starts at that end I do not believe
there is any danger. And, I agree with you, the case that has
given rise to this paper, the Lawrence case, I do not want to
go into the merits of that, but, just supposing that there was
a lack of competence at the early stages of that inquiry, as found
by the report, I am quite sure that no judge would have allowed
a case, supposing a case had been brought on that evidence, to
be rebrought because another police force had come in ten years
later and done a better job.
25. So we do not have to worry about a massive
outbreak of idleness in the police if we remove the double jeopardy
rule?
(Mr Calvert-Smith) I honestly do not believe so, you
had better ask Mr Phillips, but I do not believe that is the case.
Chairman
26. Forgive me, Mr Singh; and, of course, the
CPS has got a role in this, have they not?
(Mr Calvert-Smith) Precisely.
27. In discussions with the police; and if they
are not satisfied that the evidence is strong enough, or good
enough, or is missing, they have that responsibility to make that
point then and there to the police, do they not?
(Mr Calvert-Smith) Of course we do, yes. If we think
that there is an area of investigation which has not been properly
followed up, we will make our views known; although, ultimately,
it is for the police to decide whether to take forward any particular
line.
Mr Singh
28. What is the driving force behind these proposals,
is it actually the fact that we now have DNA testing, which can
bring new evidence to the fore many years later?
(Mr Calvert-Smith) I think that there are a number
of things behind it; of course, the immediate driver was the recommendation
of the Macpherson Report. But I think there has been a feeling
for years, which has been growing, that, first of all, victims
deserve better treatment than they are currently getting from
the system; secondly, that it is a scandal that people can, in
theory, wander around boasting about crimes they committed without
any fear of redress. I think the next point I was going to make
is that that is evidenced by the fact that the 1996 Criminal Procedures
and Investigation Act allowed the tainted acquittals route to
a new trial, so that if you can prove that an acquittal was obtained
by intimidation, or the like, then you can go back; so that was,
as it were, a breach in the solid wall of double jeopardy. So
that there has been a general feeling, I think, over the years,
that there are exceptional cases which really ought to be looked
at again. It is also the case that, as we move into Europe, most
European jurisdictions do have a right of appeal for most things,
for the prosecution, in circumstances where we, in England and
Wales, do not. I do not want to go into that in particular, beyond
highlighting that there are certain rulings which we will be suggesting
to the Law Commission should be the subject of a right of appeal
to the prosecution, though not a factual decision by the jury.
So that, a general feeling, I think, that, as we move closer to
Europe, each side should have the same rights of appeal, where
it is fair and appropriate. So I think there have been a number
of motives moving towards this, and sudden and dramatic developments
in science, not just DNA but various mapping techniques which
the police are developing, voice recognition, and so on.
29. I was going to ask about that; are there
any new scientific breakthroughs that you are aware of that we
might find interesting?
(Mr Calvert-Smith) I am sure Mr Phillips knows more
about these, as an investigator, than I do; but corneal mapping,
whereby a camera, in a cash machine, for instance, can scan the
user's eyes, voice identification I have mentioned, facial mapping
is becoming a better recognised science than hitherto. And the
ability to enhance pictures on a CCTV camera is getting more and
more sophisticated, so that something that was a blur ten years
ago can now actually depict a person who is recognisable.
30. And because these techniques give us new
evidence do you think that is a justification for a retrial?
(Mr Calvert-Smith) Yes, I do, because, as one of my
questioners said earlier, the thought that it could be known publicly
that there was a picture of the robber, say, in the building society,
which is now unmistakeably the defendant who has just been acquitted,
would cause the criminal justice system to be viewed with contempt
by particularly the victim but also the general public.
31. Finally, are there any changes to the rules
of evidence that you would like to see which might make a difference
to admissibility of evidence in the future?
(Mr Calvert-Smith) I think the key change which comes
in the report, and the recommendation I support most strongly
of all, aside the double jeopardy rule, is the proposal that the
rule in the case of Sambasivam, which is that an acquittal counts
as an acquittal for all purposes, not just for the purposes of
a retrial on the same offence, be abolished. Now I do not want
to prejudge matters, because there is a case going to the House
of Lords from the Court of Appeal at the moment in which this
very point is going to be argued, as to whether that principle
is still a valid principle in the common law. But, if it is, I
firmly believe that, on discovery of further offences, perhaps
of an identical character, one should be able to say, and will
also want to rely on the exact circumstances of this event, "Even
though you were lucky enough to be acquitted, we are not trying
you again for that offence," but we ought to be entitled
to use the fact. I think the brides in the bath is the story told
in the Law Commission report, but that sort of evidence. So that
is the biggest change in the evidence that I would like.
Chairman
32. Mr Calvert-Smith, are you aware of any successful
challenge yet to DNA evidence?
(Mr Calvert-Smith) There have been successful challenges,
they are getting fewer and further between, because the science
has much developed; there were challenges that I remember well,
having been involved, because of the limited databank, and so
on, the basis upon which you made the comparison. There was the
prosecutor's fallacy, which prosecutors and others fell into,
that, because the likelihood of the same pattern occurring was
one in three million, I think it was, it therefore meant that
it was three million to one against it being anybody else, which
to the layman sounded good but was destroyed. So that there were
challenges to the basis, but I am not aware, recently, of any
successful challenge. Of course, juries sometimes say, "Well,
the 10,000 probability is not good enough for us; we acquit."
Chairman: It is difficult for a jury where most
of them play the national lottery, is it not?
Mr Linton
33. Mr Calvert-Smith, I just wanted to clarify
what you said about the Macpherson Report, I was not entirely
clear; are you saying, I do not want to ask a specific question
about the Lawrence case but about cases like this, would it be
open, in the second trial, for the defence to say that "This
new evidence should have been adduced at the first trial, therefore
it is not admissible"?
(Mr Calvert-Smith) They would say that to the High
Court judge to whom we made the application. I would very much
hope that if it was a prosecution for which the CPS was responsible
we would not have let such a case get as far as that stage; if
it should have been discovered earlier with the use of due diligence
then we would not be entitled under this procedure even to start
it off. It would have to be, the sort of thing that is envisaged,
a religious conversion, a completely unknown and untraceable eye-witness,
a confession perhaps, a new, well-attested confession, or some
scientific development.
34. Supposing there was a car theft from a car
showroom, and they had examined the cars and found no fingerprints
and the accused had been acquitted, but then they discovered another
car that did have fingerprints, this is later on, and they found
they were exactly those of the accused; are you saying that even
though they have clear evidence they cannot use that?
(Mr Calvert-Smith) I would be very surprised if a
High Court judge would allow that sort of case to go to a second
trial, balancing the double jeopardy principle, which is still
there, and the stress to the accused, and so on. "The police
should have fingerprinted the car the first time round,"
he would probably say.
35. But does not that mean that, if there were
a retrial in a case like the Lawrence case, where a public inquiry
had come to the conclusion there was clear police incompetence
on several counts, there is absolutely no possibility that new
evidence would be admissible?
(Mr Calvert-Smith) Yes, it does. If the new evidence
was evidence that even a highly competent police force could not
have uncovered, well then, clearly, that would be a different
ball-game, but if it was evidence that was really under their
noses but for some reason or another they had not spotted it then
the Law Commission principle would bite, the due diligence principle
would bite; and I think, on balance, that is the right line to
draw.
36. I am not suggesting one should make laws
to suit a particular case, but do you not think people would question
the whole point of this process of looking at the double jeopardy
rule, if you are able to sit there already and say, even if there
were a second trial in a case like the Lawrence case, using evidence
that the police did not originally bring because of incompetence,
it could not be admissible?
(Mr Calvert-Smith) I can see the anxiety. But I come
back to the point, the state should not be allowed to become what
in civil terms would be a vexatious litigant, going round and
round again; it should be encouraged to get its house in order
the first time. If there was a general right to retrial then the
sorts of danger that Mr Singh mentioned, of them saying, "Oh,
we can always have another go if we don't get in first time round,"
do start to creep in, and I think that would bring justice into
disrepute in another way, and one does have to draw the line somewhere.
But if I could just go back to the Lawrence case, if one presupposes
that the crown, the CPS, had continued their trial against the
suspects in that case and there had been an acquittal, and that
the police had then conducted investigations, one knows they did,
the intrusive surveillance of the house, which produced evidence
of certain statements being made and behaviour in the house, and
so on, but that that had been perhaps conclusive evidence, a confession,
for instance, whether that would have been new evidence, which
they could not have uncovered before, which would have allowed
the crown to go again. But if it had simply been a question of,
"Well, really, you should have done a better job at the scene
of the crime," then they would not be allowed to go again.
37. I do not want to pursue this line to death,
but why should a new confession be admissible but a new set of
fingerprints not; surely, the overriding principle is, can one
demonstrate, to the satisfaction of a jury, the guilt of the accused?
(Mr Calvert-Smith) As I say, one can be logical, one
way or the other. One could say, "Well, if there is ever
any evidence that somebody has committed a crime then the fact
that he has been tried and acquitted six times should not stand
in the way, if there is now compelling evidence, of his being
convicted on the seventh occasion." But one does have to
draw the line somewhere, I think, and all countries have rules,
and indeed it is in the European Convention, against putting people
in jeopardy twice, for the good reasons, as I see it, that it
is the state against the individual and the state should be limited
in its chances of persecuting, as it would then be seen, an individual;
and, therefore, that the line that it has to be fresh evidence,
that the state could not, with reasonable due diligence, have
discovered, is a sensible one to draw. But I can quite see that
if I were the victim of the sort of crime you have mentioned I
would certainly feel that I had been hard done by, because the
state had let me down.
38. What you describe is something more like
the rules of a game than a search for truth?
(Mr Calvert-Smith) It is not a game, so much, because
it is a very important constitutional point, in my view, that
there should be a limit on the state's ability to put somebody,
a citizen, through what is a very traumatic experience for him,
his family, the witnesses themselves, and so on, and, by the by,
costs a great deal of money, again and again and again, because
of an ultimate truth that one day may emerge. So I do not think
it is fair to call it a game; it is rather more important than
that, I think.
Mr Winnick
39. I am rather concerned, Mr Calvert-Smith,
when you say that where a person has been acquitted and it has
been discovered that the police did not in their initial inquiries
carry out what should have been done, then the judge decided whether
there should be fresh proceedings, would quite likely decide that
the police should have carried out their duties in the first place
in a competent manner. If that is your view of what is likely
to happen, that would not show much concern, would it, for the
victim in these sorts of serious cases which we are talking about?
If I can give you just an example of one notorious case, Sutcliffe,
the murderer of women, say he had been acquitted, through lack
of evidence, and then further evidence emerged, on the basis that
there would be a relaxation of the double jeopardy rule, would
he really be allowed to get away scot-free, to use a phrase I
have used before, because on a technicality, the police had not
done their job initially, which they did not do, incidentally,
in the very early stages, as we know, and more than the early
stages, of that murder inquiry; why should the person not be tried
again?
(Mr Calvert-Smith) First of all, he cannot at present,
and although the—
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