Select Committee on Home Affairs Minutes of Evidence


Examination of Witness (Questions 60 - 73)

TUESDAY 25 JANUARY 2000

MR DAVID CALVERT-SMITH QC

  60. Do you see the Law Commission proposals on double jeopardy as a substitute for the provisions of the 1996 Act, or an extension of them?
  (Mr Calvert-Smith) I think they are an extension of them, as drafted. I am bound to say, I have not actually thought of it in that sense, as to whether they could subsume them, in a sense, make them redundant.

  61. If they are convoluted, which may be an explanation as to why they are not used, plus there are other ways of doing it, as it were?
  (Mr Calvert-Smith) Yes. I think that is a very good point; if I could come back to you on that.

  62. Yes, of course.
  (Mr Calvert-Smith) Because, clearly, by definition, the administration of justice offence would only come to light following the trial, because, if it had come to light during it, it would have been part of the evidence, and, therefore, it would constitute the sort of new evidence which might trigger this procedure. So, I think, if I may say so, it is something I would like to reply to.

  63. Fine; yes. And, finally, what do you think is the relative importance of the two proposed extensions, that of interfering with the judge or magistrate, or attempting to interfere, more a problem, with a judge or magistrate, as against the requirement for a conviction? It was really what my colleague Mr Winnick was saying.
  (Mr Calvert-Smith) Requirement of a conviction of the actual offence, of the murder, or the rape, as it were?

  64. Yes.
  (Mr Calvert-Smith) As against the conviction for having tried to interfere ...

  65. Conviction for having tried to interfere with a jury.
  (Mr Calvert-Smith) Clearly, in the public eye, and I hope I am a member of the public, it is more important that the murderer be convicted than that the person who tried to interfere is convicted. And I support the suggestion, in this paper, that one ought to be able to get to the retrial without an actual conviction; one ought to be able to satisfy the judge that an offence had been committed by some person, perhaps an anonymous telephone call, so that one could never actually prove who had done it but it was perfectly clear that there had been an offence committed. That ought to allow one to try to convict the murderer.

Mr Malins

  66. Mr Calvert-Smith, I want to look at it, just for a moment, from the point of view of fairness, the double jeopardy rule. At the moment, if a person is acquitted now in the crown court, they come out and they say, "Thank goodness, that's all over," end of story. Is there not a danger that if we relax the double jeopardy rule too much a great number of innocent men and women, and I do mean innocent, because not only have they been acquitted but they are innocent, may live in a constant state of anxiety at the prospect, however remote, of a second, a third, or even a fourth trial; is not that a strong point?
  (Mr Calvert-Smith) I think that is a very strong point, I entirely accept that. If I can just qualify it, because one would hope that the innocent, the actually innocent person that we are talking about would be reasonably confident that the DNA, for instance, will never appear which will sink him because he was innocent.

  67. You are using words like "reasonably confident", but my point, I think, stands; but does not that lead us to a conclusion that it might be fair to envisage two scenarios? One where I think it might be fair to have a second trial, and that is when subsequent, scientific methods bring forward evidence which not only makes a conviction likely, but a fair-minded person would say that is one fair time to open a case; would you contrast that with cases where the new evidence is non-scientific, where it simply ups the chances of conviction, from, say, 60 per cent, to 70 per cent, to 80 per cent? Are not those two different areas, from the point of view of fairness?
  (Mr Calvert-Smith) They are, very much so, and I carefully used the word "compelling" when I started. I would want a test very similar, if not identical, to the `highly probable' test in the paper. I think it is going too far to say "certain", and, of course, that would give rise to the very serious possible problem that, if a jury knew that a judge had said it was certain the person was guilty and he still chose to fight the case, in parenthesis, I should say that I would envisage that a number of defendants would realise that the game was up when their DNA had been discovered and actually plead guilty at the next trial.

  68. Are you confident, therefore, that a defendant would get a fair second trial, and the Law Commission last week said that reporting restrictions on quashing the acquittal would help to ensure that the jury had an open mind; are you sure that they would get a fair second trial? What about problems of, "My barrister has retired," "My witnesses have gone abroad," etc., are not those factors?
  (Mr Calvert-Smith) They are factors, and they would be factors that we would consider, as a prosecuting authority, before deciding even to invoke the procedure, and the judge would consider, if we did, and the defence wished to challenge it, and then, of course, the Court of Appeal would have the final say in this situation. I think there are good safeguards.

  69. Finally, on this question of a second trial on the same facts, the double jeopardy is applied in cases where a series of events gives rise to two or more trials of the same individual, perhaps when a murder and a robbery are separated; what are the practical difficulties of separating charges arising from the same facts, and what difference would the proposed changes make, do you think?
  (Mr Calvert-Smith) I am grateful to have the opportunity to respond to this, here, as I have to the Law Commission. We are against the extension of the double jeopardy rule, for that very reason, and the murder/robbery example is perhaps a prime example, where you have a case of murder in which the jury are going to have to deal with difficult questions of causation, medical evidence, perhaps a `diminished responsibility' defence, all kinds of matters which are specific to the murder charge but the facts are identical; where it is much fairer to the accused, let alone the administration of justice, to have the murder done separately, and then, whatever the result, if a conviction, one would leave the robbery on the file, if an acquittal, one would say, "Well, no, you robbed this person," whether we had proved the causation or not. So I am not in favour of the extension of the principle; we believe that the Connelly principle, which allows for trials on the same or similar facts for different offences in special circumstances, should remain.

Mr Stinchcombe

  70. Do you agree with the Attorney General's suggestion, made on, I think, 30 November last year, that the prosecution should have the right to appeal against certain of the judge's decisions in the trial process?
  (Mr Calvert-Smith) I do.

  71. In what circumstances do you envisage that such an appeal would be appropriate?
  (Mr Calvert-Smith) I think there are a number of possible situations, in sort of rising order of practicability and importance. I think that the current inability of the crown to appeal what it believes to be a wrong ruling, that a trial is an abuse of the process, should be subject to appeal. I believe that the fact of the right to appeal would perhaps have a good effect on the decisions themselves, in that, if a judge knows that he can be appealed either way in due course, he, or she, is going to focus carefully on the decision; whereas, at present, an `abuse of the process' ruling stays, however well-balanced it is in law. Rulings on admissibility of evidence, in my view, should be subject to careful procedural safeguards, and the ability of the court system to deal with them, without causing huge delays to all cases, should be the subject of appeal; they are, in limited circumstances, already, if they have been made pre-trial, under the Criminal Procedures and Investigation Act. But if a judge makes a ruling which is clearly wrong, which therefore deprives society and the victim of the chance of, for instance, a jury assessing the weight of a confession, say, then I believe we, the crown, should have the right to appeal that sort of ruling. And, finally, if a judge stops a case at the close of the prosecution on a basis which is a purely legal one which is wrong, we do, of course, at present, have the academic right, via the Attorney General, to refer the question to the Court of Appeal, so that, retrospectively, the Court of Appeal can say, "Well, the judge shouldn't have stopped the case," but that has no effect on the instant defendant, and I think we ought to look carefully at whether the time has come for that to be more than an academic exercise but a real one.

  72. The second of those three areas causes me particular interest, because of a case in my constituency, whereby there had been a particularly nasty racial assault. Forensic evidence, as I understand it, was supplied but three days too late, and, with several months still to go before the trial, the judge ruled that evidence inadmissible, and the plug, eventually, was pulled on the prosecution. Would this prosecution appeal, of which you talk, meet that kind of case?
  (Mr Calvert-Smith) Yes, it would. If I can give you, but I should not give you the example; but I have had correspondence from MPs, and I think none of them in this room, where I have had to write back and say, "Well, if we had had a right of appeal against that ruling, that sort of ruling, where delayed evidence has meant the exclusion of the evidence, then we would have done, in that case."

  73. Just pausing there, does that mean that we should roll together the proper consideration both of the Attorney General's suggestion on prosecution appeals and these further suggestions on the double jeopardy rule, and consider them as of one?
  (Mr Calvert-Smith) I think, in an ideal world, yes, because, as the Law Commission hint at the end of the report, they are clearly closely linked; a prosecution right of appeal is close to but not the same as the right to reopen a trial. But rolling things together tends to delay things, that is my real concern.

  Chairman: Thank you, Mr Calvert-Smith, you have been a great help to us. Thank you for making the time, and for your patience.





 
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