Examination of Witness (Questions 40 -
59)
TUESDAY 25 JANUARY 2000
MR DAVID
CALVERT-SMITH
QC
40. At present, we know, that is why we are
debating whether there should be a change.
(Mr Calvert-Smith) Quite; well, all I am saying about
that is that there has not actually been a public outcry, over
the last few years, as to the absence of such a power, albeit
that the rights of victims and witnesses are growing in status.
So that there has not been the pressure; with the exception of
the tainted acquittals procedure, the acquittals obtained by intimidation,
and the like, which came in, there has not been enormous public
pressure for such a change. Clearly, all those who discover at
the end of a trial that the accused is acquitted, when there was
a strongish case but one which did not make the jury sure, are
going to be disappointed and feel that in some way the system
has let them down, let alone those who have to be told, either
by the police or by us, that there is not actually enough evidence,
although they are reasonably confident that they know who did
it. So that all along the line people are going to be disappointed
by the failure of the criminal justice system to bring more than
a fraction of those who commit crimes to justice. So that I do
not believe, in the great scheme of things, where I believe the
figures are that something like 3 per cent of the crimes that
are originally reported to the police actually result, at the
end of the day, in a person being convicted by a court, that the
number of cases, like the one you instance, are going to be sufficient
for there to be a public clamour; if there is, well then, clearly,
Parliament would need perhaps to look at it again.
Mr Singh
41. In response to my colleague Mr Linton, Mr
Calvert-Smith, you talked about the line being drawn somewhere.
Is not the real problem with removing the double jeopardy rule
that that line is drawn and then could be redrawn and redrawn
and redrawn, by different people, with different perspectives
and different public pressures, and that is the real problem?
(Mr Calvert-Smith) I am not sure whether you are referring
to the way in which it is drafted by the Law Commission, or the
fact that, from time to time, Parliament may decide to move the
line in one direction or another.
42. Yes, and that that is the problem?
(Mr Calvert-Smith) I think that is right; but the
criminal justice system has been in a constant state of movement
now ever since I have been in practice, there has been a criminal
justice Act almost every year which has changed something, quite
dramatically, in some respects, almost every year. This would
be another such change, following quite hard on the heels of the
first breach, the tainted acquittals breach, in the CPIA 1996.
There is some danger that this constant—
43. It could be a Pandora's box, for defendants,
could it not?
(Mr Calvert-Smith) It could.
Mr Stinchcombe
44. I wonder if I could just probe a little
further on the points that have just been put to you, before turning
on to retrospective effect and time limits. You have said several
times that the victims should come first, and yet a line has to
be drawn somewhere, and you seem to be drawing the line between
cases where, for example, there has been new evidence, or new
scientific discoveries, or a new confession, and those cases where
the prosecuting authorities and the police have conducted an incompetent
prosecution and/or investigation. That means, does it not, that
where the victim has been the victim not only of a crime but also
of incompetence by the police they would be given no remedy whatsoever?
(Mr Calvert-Smith) Well, not quite, but they would
not be given a remedy by the criminal justice system, that is
for sure.
45. We know, do we not, from domestic jurisprudence,
that, in the Sutcliffe case, there is no remedy against the police
for negligence, because that was tested in the House of Lords?
We also know, do we not, that the Government has not incorporated
Article 13 of the European Convention on the right to a remedy,
which would incorporate the right to a full investigation; so
they would have a complaint to the Police Complaints Authority,
but what else?
(Mr Calvert-Smith) I was thinking of suing the perpetrator.
46. A civil remedy against the perpetrator?
(Mr Calvert-Smith) That is what I had in mind when
I said "not quite"; but I agreed that the criminal justice
system would not give them any kind of remedy.
47. At the outset of the questions, you said
that it was clear that the jury were focused on the issues and
would not be, you thought, unduly swayed by the fact that a retrial
had been ordered because new evidence had become available. We
do not know what the jury focus on, do we, we cannot go into the
jury room at all?
(Mr Calvert-Smith) All we can do is see the cause
and effect, as it were; and, as I say, many cases, in which really
very damaging information has been in the public domain before
a trial, which would have made any gallop poll probably produce
a 90 per cent result for guilty before the trial, have actually
ended up in an acquittal when the jury have actually heard the
case. But you are right that we do not have jury research, and
we are not allowed to.
48. I know, as a former barrister myself, you
can try to read a judge, you can try to read a jury, but you never
know actually what motivates them in their decision-making process
at all?
(Mr Calvert-Smith) No.
49. And we have never had the chance, have we,
to read a jury listening to a retrial in circumstances which we
are contemplating here, whereby, after a Law Commission report,
after the Macpherson Report, after public scrutiny by us, new
legislation is proposed, putting very high thresholds in place,
a judge then determines that those thresholds have been cleared
and a retrial therefore ordered in a case of massive public importance?
So we have got absolutely no evidence at all from which we can
gauge how the jury would react to that new set of circumstances?
(Mr Calvert-Smith) We have no evidence, of course,
about these precise circumstances, but we do have similar types
of scenario upon which we can draw, and I gave one of them, I
do not want to repeat it. But there are many cases where the facts
of the case have been aired, again and again, in a court of first
instance, in the Court of Appeal, and often sometimes by a coroner's
inquest or a public inquiry, and yet the jury have returned verdicts
of `not guilty', in cases where the perceived view would have
been "The defendants have got to be guilty, because the Court
of Appeal said so," or "because a public inquiry said
so," or "because a coroner's inquest has said so,"
and the jury have been aware of those findings and acquitted.
But, I agree with you, one cannot be certain.
50. Should these proposals, if they come into
force, have retrospective effect?
(Mr Calvert-Smith) This is very difficult; on balance,
and it is on balance, because it is a very difficult balance to
strike, I think they should be. But I do think that the High Court
judge, in hearing an application, would want to look very carefully
at how stale the proceedings had become by then, applying the
normal tests as to fairness of the trial process itself: can the
accused at this stage now have a fair trial, has his behaviour
subsequent to trial, confident, as he then would have been advised,
that the acquittal was final, somehow made it less fair for him
to be tried now because of his behaviour subsequently, or something
of the kind. But I do not believe that making it retrospective
offends ECHR. I agree with the conclusion of the Law Commission
that this is a procedural matter rather than a substantive criminal
matter, and I believe that the right should exist; otherwise the
sorts of concern that have been expressed generally about victims
and witnesses would not really be met, perhaps for years from
now, if we drew the baseline today.
51. Should there be any drawing of a line; should
we have it completely open-ended in its retrospectivity?
(Mr Calvert-Smith) I believe so, yes.
52. And should there be any time limit, as we
look further forward? Should we have any time limits at all put
in place?
(Mr Calvert-Smith) My answer to that question is,
I do not believe we should. We have no statute of limitations
in crime, in this country, apart from summary offences, so that
a murder committed could be tried providing the defendant is alive,
and I think that should continue.
53. Already, however, certain prosecutions fail,
even after they have gone to trial, because so much time has elapsed,
whether it be because the judge determines that there has been
some form of abuse of process, or, more likely, simply because
the evidence is less credible after that delay. Is there any filtering
process at the pre-trial stage by the prosecuting authorities?
(Mr Calvert-Smith) Yes.
54. And is there any rule of thumb applied as
to how much time can elapse before a trial is thought safe?
(Mr Calvert-Smith) Each case has to be looked at on
its merits. But we have to look at historical cases very much
with the idea that, first of all, can the memory of our witnesses
really be trusted so long after the event; secondly, is it fair
for the defendant to be asked to remember back 20 years, or so;
and, in particular, are there witnesses that the defendant might
wish to call upon, or that the crown might have wished to call
upon, who are now dead, I am thinking of the historic child abuse
cases, in particular, which are the sort of classic, old case
that we now sometimes prosecute. We take all those factors into
account, and sometimes a judge says we were wrong and we should
not have brought the proceedings, or a jury, effectively, by its
verdict, says so. But we do take that into account, and many cases
are not brought precisely because we feel that it is impossible
now, so long after the event, to have a fair trial.
55. And when you use the phrase "so long
after the event", what time period do you have in mind?
(Mr Calvert-Smith) I do not have a particular time
period in mind. The more dramatic the event the more likely you
are to remember it, for a start; if it is a very serious sexual
offence, that you were subjected to when you were ten years old,
I am quite sure you still remember it at 70. The evidence, I do
not want to prejudge it because I think there is an appeal, but
I attended some of the trial, of the war crimes trial recently,
and there were people still alive who were giving what appeared
to me to be credible, clear evidence of things they had seen in
the 1940s, because they were so terrible that they had never forgotten
them.
56. What happens in the case where new and fresh
evidence becomes available, which of itself is of some weight,
but only after so much time has elapsed that the other evidence,
previously admitted, previously heard, is less credible because
memories are frailer?
(Mr Calvert-Smith) The Law Commission proposal, with
which I agree, is that the whole case would then have to be looked
at in the round; you could not just say, "Well this is a
great bit of new evidence," you would then have to say, or
the judge would have to say, if we had taken it to the judge,
"Overall, is the case substantially stronger now than the
previous case."
Mr Winnick
57. Does not the whole question of a time limit
undermine the concept of justice, Mr Calvert-Smith? If there were
a time limit, would not that undermine the concept of justice?
(Mr Calvert-Smith) I agree.
58. And the war crimes proceedings, which were
fiercely opposed by some, particularly, of course, as we know,
by a majority in the Lords, and bearing in mind what you have
just said, does not the successful proceedings which took place
not so long ago demonstrate that, as you said, people can remember,
when one bears in mind the seriousness of the terrible crimes
which were committed? And, you see, if, on the domestic scene,
it had not been possible, for all kinds of reasons, to apprehend
the moors murderers, or Sutcliffe, but, in time, say, a long time,
ten, 20, 30 years, would it not be absolutely appalling if such
people were not brought to justice, simply because of any kind
of arbitrary time limit?
(Mr Calvert-Smith) I agree.
Chairman
59. Mr Calvert-Smith, you mentioned tainted
acquittals and the ability to go to court, where this is suspected,
under the 1996 Act; do you have any views as to why that procedure
apparently has not been used at all?
(Mr Calvert-Smith) I have views but they are personal
views because I have no empirical evidence to base them on. I
believe that the principal reason is because it is a very, very
convoluted and tortuous process which has to be followed for a
successful reopening of a case following a tainted acquittal,
and that I have anecdotal evidence from within the CPS of cases
where, in the end, the perpetrator of the offence against the
administration of justice has sometimes been dealt with, or the
perpetrators, and that is considered to have been sufficient to
mark what had happened, without going all the way through the
agony for the witnesses themselves of a fresh trial. So I suspect
it is more the procedural hoops that have to be followed than
the fact that there are not any tainted acquittals.
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