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.
|
