Examination of Witnesses (Questions 120
- 139)
TUESDAY 8 FEBRUARY 2000
MR ANDREW
TROLLOPE QC, MR
CHRISTOPHER MURRAY
AND MR
ED CAPE
120. I do not think there is any disagreement,
including by those who advocate some change in the law of double
jeopardy, that it would be very limited indeed for all the obvious
reasons.
(Mr Trollope) Could I make one point on that, and
it is this? It is noteworthy that beyond the recommendations of
the Lawrence inquiry there has been no research or evidence drawn
on by the Commission to justify the change in the rule; in other
words they have not been able to assemble evidence that has indicated
that the present rule is either not working or is working in an
unjust manner. We do think that where you have a rule that is
really of constitutional importance and is present in all sophisticated
legal systems around the world and has been for centuries, if
that rule is going to be removed it has got to be removed on the
basis of the most convincing evidence, that it is either not working
or is working in a way contrary to the interests of the community.
We think that evidence is simply not there.
121. There may well be very close relatives
of those who have lost their lives who may take a somewhat different
view, including Mr and Mrs Lawrence. Do you take the view that
applications to re-open acquittals will be more frequent than
the Law Commission suggest?
(Mr Trollope) Yes.
122. Because of what? Constant pressure?
(Mr Trollope) I think constant pressure. The Lawrence
case and other cases that would be described as high profile or
emotive, for good reasons may I say, inevitably generate pressure
both from the press and from—dare I say it—politicians
and other people who speak in public about such issues.
123. We are amongst the villains, are we?
(Mr Trollope) I also think that there will be pressure
on the criteria that are put in place to restrict the number of
cases. I think therefore that if there are criteria put in place
such as seriousness, such as a time limit, such as due diligence
at the first inquiry, there will be pressure in particular cases
to remove those criteria, and the Lawrence inquiry is a case in
point. That was a case where the police inquiry was appalling
on any view and was found to be so, and under the Commission's
proposals that case would inevitably fail if it were brought back
to the High Court for a retrial of those young men who have thus
far been acquitted in those proceedings of the particular crime
in relation to Stephen Lawrence.
124. Are you sure of that or are you as certain
as anyone can be in your line of work?
(Mr Trollope) Yes. In relation to the young men who
were acquitted of Stephen Lawrence's murder, in the light of the
findings that there were about the nature of the police inquiry,
the Commission's own proposals are very likely to defeat a successful
re-application to re-open that case against those particular persons.
Mr Howarth
125. Can you spell that out, Mr Trollope?
(Mr Trollope) I hope so. One of the criteria that
the Commission propose is that the first police inquiry should
have been conducted with due diligence. Without going into the
detail of the Stephen Lawrence inquiry, taking a broad view, one
can summarise the position as being that the police inquiries
in relation to Stephen Lawrence's murder failed in many important
respects. The investigators on the ground did not do what competent
investigators should have done, quite apart from the responsibility
of senior ranks and the like. Supposing new evidence emerges of
a convincing kind. It would certainly seem to me that if these
criteria are put in place those appearing for anybody acquitted
of Stephen Lawrence's murder would have a very strong if not an
unanswerable argument that the initial inquiry into the murder
did not comply with the due diligence requirement and therefore
that application to the High Court would fail.
Mr Winnick
126. I wonder if Michael Mansfield would take
the same view as you.
(Mr Trollope) It rather depends on the case in which
he is appearing. He may or may not. He is after all an excellent
lawyer.
Mr Howarth
127. He appears on both sides with equal vehemence.
(Mr Trollope) He is certainly excellent and vehement.
Mr Linton
128. I am not quite clear whether you are saying
that it is a good thing that with the recommendation of the Law
Commission you could not effectively correct police mistakes because
it would be open to the defence to say that that should have been
brought in the original investigation.
(Mr Trollope) I think it would be a bad thing in the
sense that it would undoubtedly widen the new evidence exception
that the Law Commission are proposing and would further erode
the status of an acquittal. I also think that we may have difficulties
in relation to Article 6 of the European Convention on Human Rights
and the fair trial provisions, that if there is not a requirement
of due diligence in the first trial there may be a difficulty
in relation to the re-prosecution on the second occasion.
129. Not specifically in relation to the Lawrence
case because that does take us into deep waters, but supposing
there is a simple car theft case and the police searched for fingerprints,
found none and the suspect is acquitted. A few days later they
find in another place, in the same car showroom, the fingerprints
of the defendant. You are saying that they should not be able
to bring another case because that will be evidence they could
have brought at the first trial?
(Mr Trollope) Yes. With due diligence they could have
done and should have done.
130. In other words should have done, but should
not also somebody who is clearly guilty be taken to justice?
(Mr Trollope) Yes, but equally there is a burden on
the state, who have hugely more resources than any individual,
when they start the investigation to conduct it with due diligence
and not to put a person on trial until such time as they have
gathered in all the evidence that they competently and properly
can.
Mr Winnick
131. My difficulty is that obviously you are
not referring to all this as some sort of game where lawyers on
both sides are trying to get their objective, understandably so.
That is what lawyers are for in any proceedings in court, be they
serious or less than serious cases. What Mr Linton has asked you
does worry a number of people, not least myself, that, with all
the difficulties and the dangers of cases being pursued by the
police where an acquittal has occurred, endless public pressure
perhaps in certain circumstances, if someone has been acquitted
and the evidence later shows that that person is likely to have
committed the criminal act, then why should not that person be
tried again in the interests of justice?
(Mr Cape) I think there is a point of principle and
the question of finality is an important principle. That is not
to say that there should be no exceptions but as a general principle
it is important for a whole variety of reasons. But the issue
is not just one of principle. We have to think of the practical
implications of a change of this kind. If we take the Law Commission's
view (it certainly seems to me their view) that it should be confined
to a very limited number of cases, then it is likely that in a
high proportion of those cases they will be notorious cases which
will have attracted the attention of the media and possibly political
comment as well.
132. Not necessarily so, but I take the point.
(Mr Cape) Not necessarily so, but it is quite likely
that a fair proportion of them would, as has the Lawrence case
of course. I would raise the question that, even if in that case
these threshold tests suggested by the Law Commission were to
be applied, could there ever be a fair trial in circumstances
where a leading national newspaper has identified at least three
of those members being guilty? I would question whether you can,
in the light of that, ever then have a fair trial. If these proposals
were to be accepted one of the things that would have to be considered
would be what restrictions should be placed upon the press, and
that creates a very great practical difficulty because of course
at the time they are reporting an acquittal they will not know
whether there will be a prosecution in the future. Are you going
to say that the press should not be able to comment adversely
upon any acquittal because as soon as you allow them to comment
adversely, certainly in the campaigning way that for example The
Daily Mail did, then it seems to me that you cannot possibly
have a fair trial in the foreseeable future in any event. There
is another practical issue, it seems to me, having regard to the
suggestion that it would be in a relatively limited number of
cases (but even if it were not), which is what happens to the
witnesses, both for the prosecution and particularly for the defence,
who gave evidence in that case. It would particularly concern
us in those cases that if it does attract tabloid press attention
we would face the possibility of witnesses after a trial being
doorstepped by reporters possibly for years to come in the hope
that they may persuade them one way or another (and one way of
course is by money, and we have seen a number of high profile
cases where money passing hands has nearly destroyed the possibility
of having a fair trial) to change their mind. I think that raises
very important practical difficulties with this kind of suggestion.
133. I understand that, and no doubt it was
a point that the Law Commission also considered. You have certainly
given us some food for thought when we come to conclude our own
inquiry. Do you think that if the DPP's proposals were taken on
board and became law, where an acquittal took place victim families
would tend to bring civil actions following such acquittals, that
there would be a considerable tendency to do so?
(Mr Cape) It is very difficult to answer that. I am
not sure that there will necessarily be a stronger incentive to
do so than there is already. We have clearly seen one or two cases
where the families have taken civil proceedings in the light of
an acquittal or in the light of a poor police investigation, or
not perhaps one that is poor but just does not deliver the goods
in terms of prosecution evidence. I am not quite clear in my mind
how that would affect the principle of whether the double jeopardy
rule should be changed.
(Mr Trollope) I would perhaps answer it in this way,
that there is very likely to be pressure from victims' families
to re-open the criminal case if the rule is changed. I think that
is undoubted and it will not just happen in high profile cases.
It will happen in murder cases, in serious assault cases, in drug
running cases and the like. Wherever there are victims of crime,
particularly serious crime, they are not going to be satisfied
with the acquittals and they will go to the investigating officer
and say, "Look; that man has got off. Is there anything we
can do about it?" and the officer will say, "Yes, there
is, because we can look for new evidence and see if we can re-prosecute
him." The truth of the matter is, and I do think the Commission
have been somewhat naive in respect of this, that they ignore
the fact that understandably investigating officers from government
agencies do not like losing cases and when defendants are acquitted
they very often resent the fact. I know that they react professionally
about it, but frequently they feel strongly about that and there
will be an internal motive by investigating forces to re-open
cases and frequently they will be encouraged in that by the understandable
reaction of victims.
134. I suppose you could argue along your lines
that if the Birmingham Six and the Guildford Four had been acquitted
at the time, and we know that at the end of the day it was found
that the evidence was inadequate after they had served long periods
of imprisonment, then the police and the prosecution authorities
would have been determined to bring them back into the dock.
(Mr Murray) I think one can go further than that,
Mr Winnick, that if these proposals are acceptable and we do abolish
the double jeopardy rule, there is presumably nothing to prevent
the police launching a fresh investigation into the Birmingham
Six and the Guildford Four.
(Mr Trollope) That is right.
Mr Linton
135. I want to come on to the question of finality
because in your evidence you made the point very clearly that
double jeopardy ensures that innocent defendants are protected
from further distress. We have also had evidence from Victim Support
pointing out that finality does not always comfort a victim or
a victim's relatives if they feel that it has resulted in the
wrong decision. It certainly does not end their distress. I am
just trying to understand the principle involved here and why
there are such different views about the question of double jeopardy
between lawyers and Victim Support. I can understand that the
double jeopardy rule appeals to acquitted defendants, for good
reasons, sometimes for bad reasons. I am not quite clear why there
is such a unanimity, it seems, in the legal profession against
any kind of re-trials. If I can put it to you like this, Mr Trollope,
you have already cast aspersions in your evidence on the police
and on politicians, quite rightly: you need to question every
other professional group, but let me turn the tables on you. Maybe
the double jeopardy rule suits lawyers because it means that their
mistakes cannot be revisited. We have talked a lot about miscarriages
of justice and there was a long campaign by the former Chairman
of this Committee to expose wrongful convictions, but much less
attention has been paid in the past to wrongful acquittals. I
thought I heard Mr Murray say that they hardly exist, but people
would have said that about wrongful convictions until Mr Mullin
and other people proved that there had been quite a number. Let
us suppose that there are wrongful acquittals and that somehow
we have not paid enough attention to this kind of miscarriage
of justice. Is it not fair enough to say that the rights of people
who feel that they suffer from a wrongful acquittal (and indeed
their civil liberties are just as important as those of the defendant)
would be affected by any weakening of the double jeopardy rule?
(Mr Trollope) I would answer it in this way, that
the rule against double jeopardy really was not a rule invented
to protect lawyers when the Romans and other sophisticated but
ancient civilisations had such a rule. It really is a fundamental
rule to protect the citizen against the overweening power of the
state. It is one of the bulwarks of individual liberty, like the
right to trial by jury. There are a number of other rules that
protect the individual. I think that those statements of high
principle are not only recited by the Law Commission but are assented
to by the Law Commission and indeed by the Director of Public
Prosecutions. One starts with an important principle that is of
constitutional importance and for the benefit of the whole community.
Secondly, there are already important rules in relation to criminal
trials as to the admissibility of evidence—I have already
referred to the burden of standard of proof—which could
on one view be seen to militate against the interests of victims
because the victims know or think they know who committed the
crime. They have suffered at the hands of a criminal. In a sense
almost any rule that impedes the conviction of the person that
they believe to be the criminal can be seen as working against
their interests. What one has got to do is to strike a balance
between the proper interests of the victims, namely, that the
wrong done to them should be redressed and the wrongdoer should
be punished, and the rights of the individual to have a fair trial
now and within a reasonable time and in compliance with the other
constituent element of a fair trial The difficulty with this proposal
is that any exception is not only an exception to an important
rule of fundamental importance, but is likely to lead to an erosion
of the status of an acquittal. It means that the results of trials
that end in acquittals will be provisional only pending further
inquiry and the discovery of new evidence. It will eventually
lead to a total change to our criminal justice system and nobody
will know where they are. I predict this with some confidence.
136. You enunciate one principle very clearly,
that an acquittal should be an acquittal, but there is also another
competing principle that criminals should be brought to justice.
(Mr Trollope) Absolutely.
137. What we are talking about is how we reconcile
both of these principles as far as possible.
(Mr Trollope) I agree with you.
138. As with all principles that conflict or
overlap, one has to make difficult decisions between competing
principles at the margin. Looked at from the victim's point of
view, take the question of new evidence. It is very important
from the victim's point of view that if subsequent discovery of
evidence shows that for instance somebody really did commit a
rape and they had been acquitted for it, that person can be arrested
and tried again because otherwise somebody who had committed an
offence and might commit another offence would be at liberty.
(Mr Trollope) I agree that that is what the victim
may want and in particular cases may have good reason for so thinking.
The point I made earlier however I do think still stands, that
victims, when criminal trials end in acquittal, are understandably
not satisfied and never will be. Therefore, if, Mr Linton, we
take your line, there arguably ought to be no restrictions whatever
on re-opening cases that have resulted in acquittals and it should
not be an exception; it can be something relatively easily done.
139. You can exaggerate my case as I can exaggerate
yours. All I am asking you is, is there not a danger? The case
for double jeopardy has very eloquent advocates in the legal profession.
Maybe the competing principle is not always so well put. We had
evidence last week from the Chief Constable who made the point
that there is a very high level of perjury among defendants and
he said that it is plain and obvious that there is manifest perjury
in the criminal courts. Indeed, one can say in a very rough way
that half the things that are said in court are lies. It stands
to reason. There is a very real danger that sometimes there will
be wrongful convictions or wrongful acquittals. Surely it is very
important from the point of view of victims that there is some
remedy for wrongful acquittals?
(Mr Trollope) I would agree that their interests are
interests to which one has to pay the closest attention, but I
do think that Mr Phillips' evidence was absolutely astonishing
when he said that in the 20,000 Crown Court cases a year there
was a 57 per cent rate of acquittal and he then went on to say
that that meant that there was a very high level of perjury among
defendants. That was a remarkable statement because it means that
he believes that most acquittals are wrongful and necessarily
involve defendants giving lying evidence. I am afraid that that
assumption, which was echoed in Mr Calvert-Smith's evidence and
is echoed in the Commission's report, namely that mostly the guilty
are prosecuted and that the innocent have nothing to fear in the
criminal justice system, is a belief that is naive and incorrect.
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