Examination of Witnesses (Questions 140
- 159)
TUESDAY 8 FEBRUARY 2000
MR ANDREW
TROLLOPE QC, MR
CHRISTOPHER MURRAY
AND MR
ED CAPE
140. Surely he is not saying that? Even if one
assumes that all convictions are correct and all acquittals are
correct, there would still be witnesses who had given evidence
to the contrary in court who must have been total liars?
(Mr Murray) But it is never quite as simple as that,
with respect. We approach things from the view that things are
black or white, that one thing happened or one thing did not happen.
So often in trials it is a question of the grey area, it is a
question of what people recollect, what they think may have happened,
their interpretation of a set of facts. That is not lying. That
is a question of interpretation of what people may or may not
have seen. Identification evidence is the best example of all,
where people are arrested and charged with a criminal offence
based upon the identification evidence of a particular witness
who thinks that what they saw is what they saw. That evidence
is particularly difficult to attack through cross-examination
because you are not cross-examining a witness on the basis that
they are lying because they clearly are not lying. They are giving
their recollection which they think is true. It may be wrong,
as a result of which someone may be acquitted. Someone is acquitted
because a witness has given evidence which they think is the truth;
it is not.
141. Of course this was the case in the Lawrence
inquiry. I need to bring you on aide he question of second fair
trial. Both organisations you represent have said in the written
evidence that you think that there would be insufficient safeguards
to ensure a second fair trial from the Law Commission proposals,
but the Director of Public Prosecutions, when he gave evidence
to us, said that he believed that juries were capable of setting
aside the decisions taken by the High Court to refer a case and
were capable of approaching it with fresh minds. From my experience
in juries it seems to me that the DPP is more likely to be right,
that juries do not have their minds made up because lawyers have
decided to bring a case in the first place. They do not think,
"Oh, this person would not be on trial if they were not guilty.
Bang them up." They look at the evidence with a fresh mind
and they may be right, they may be wrong, but why should not juries
approach these re-trials in the same way that they approached
the original trial?
(Mr Murray) Is not the difficulty here—and I
have read what the Director said and he is a very experienced
criminal lawyer and also sits as a Recorder in the Crown Court—with
those of us who have similar experience that we do not know what
goes through a jury's mind and what goes on in the jury room?
All we do know is that from time to time we get a little insight
as to what happens in jury rooms because, for instance, a member
of a jury may write a book about it or we may read something about
it in one of the tabloid newspapers. Outside that there is no
scientific examination of what happens in jury rooms. The Director
may be right; the Director may be wrong. The trouble is that it
would be dangerous to base legislation upon supposition of what
jurors may or may not think. We just do not know.
142. It is not supposition in our case because
many of us have been jurors. Obviously we can only speak from
the experience of a limited number of juries.
(Mr Murray) Yes.
(Mr Cape) The Law Commission's example was very unconvincing
in that they gave the example of a person whose appeal had been
successful and then it was sent for re-trial and they gave that
as an analogous situation, but clearly it is not an analogous
situation precisely because here in such a case the Court of Appeal
have indicated that this person is not guilty, or rather their
appeal was successful, which is quite the opposite and therefore
it is simply not an analogous point. Personally I am highly doubtful
as to whether we can simply assume that a jury would ignore information
which of course may not be direct information, it may be what
one or two jurors say—"Did you know?" or, "I
have discovered that this went to the High Court", and then,
"The High Court has said ...", whatever the test is
going to be: "It is highly probable that a jury would convict"
or, "The court is sure that the jury will convict."
Particularly if we take the latter, I have to say I am doubtful
that we can simply assume that a direction from the judge to ignore
that, although it might well be successful consciously, would
be successful at an unconscious level.
143. But jurors at the first trial have to contend
with the fact that the Crown Prosecution Service will only have
brought the prosecution in the first place if there is—
(Mr Cape) A realistic prospect of conviction, but
that is a much lower test than this.
144. If what you say were true and jurors were
influenced by the probability of conviction implied by the case
being there in the first place, then the whole jury system would
be unworkable because jurors would be influenced by the fact that
a case had been brought to a first trial to convict.
(Mr Cape) I think there is quite a difference between
a jury being aware that the police and the prosecution, who after
all are employed to prosecute, have brought this case and knowing
that the High Court has taken the view that they are sure that
the jury would convict. I think that is quite a difference and
I do not think that those are comparable.
145. I am not sure that jurors would make much
difference between the police and the Crown Prosecution Service
and the High Court judges.
(Mr Cape) We simply do not know.
(Mr Murray) I think we would be happier if you were
taking evidence from jurors.
(Mr Cape) There is a connected point which is that,
given that a judge would never know whether any of the jury members
were aware of such information, it seems to us he would always
have to give such a direction. If he gives a direction to a jury
which has never heard about this, then the problem is that he
is drawing attention to the very thing that he is trying to remove
their attention from. There is some evidence from other jurisdictions
to suggest—and of course this is problematic from the whole
point of jury trial, that there is some evidence from other jurisdictions—that
judges' directions do have the effect opposite from that which
is intended, and particularly in the light of here it being High
Court judges or possibly even the Court of Appeal.
146. Does that not rather undermine the point
you are making?
(Mr Cape) No. It does mean that there are some difficulties
with jury trial as a whole which have never been addressed because
we do not allow research into juries. They need to be addressed.
It does not undermine the fundamental point. We are in a position
of ignorance. We simply do not know. It is our view that a jury
getting to know that the High Court has taken the view that they
are highly likely to convict could not be dealt with simply by
directions from the judge.
147. It is certainly my experience that juries
do not think that way.
(Mr Cape) We only have anecdotal evidence. That is
the problem.
(Mr Trollope) Could I just make this additional point,
that juries are at the moment protected in many cases by Contempt
of Court Act orders made by judges who are trying the first of
a series of trials, and they routinely prohibit publicity of trial
one because of the possible effect on trials two, three and four
and so on. Those orders are made every day in Crown Courts up
and down the country precisely to prevent contamination of future
jurors in later proceedings.
148. I must ask the Law Society about the suggested
safeguards for a second investigation, that the decision should
be taken by a law officer, the Attorney-General or whatever, and
that it should be carried out by another police force. If those
safeguards were given, would the Law Society feel happier about
the Law Commission's proposals?
(Mr Murray) Obviously we would feel happier about
it, but it would not abolish the basic objections that we have
to it. This would be one of the safeguards that, if it were to
go through, we would want.
149. And the Criminal Bar Association? Would
they support it?
(Mr Trollope) I think that anything that strengthens
the due diligence requirement would be welcome so far as we are
concerned and would fully comply with what the Law Commission
intends to be an exceptional measure.
Chairman
150. The effect of these proposals on police
investigations: it has been put to us that if these changes were
made it could perhaps encourage sloppiness on the part of some
police officers at some stage. In the back of their minds would
be, "If we get it wrong this time we can go and knock at
the door and try again." Do you think that is a real danger?
(Mr Murray) I do not think sloppiness is something
that really concerns me too much. One of the problems about sloppiness
is of course, as the Lawrence case demonstrated, is that it almost
invariably—
151. Forgive my use of the term: less than due
diligence.
(Mr Murray) I know precisely, Chairman, why you use
the term, because it has appeared in certain of the evidence that
was given to you. The Lawrence case demonstrated that one of the
problems about ineffective investigations is that almost invariably
that does not come to light during the course of the trial. It
comes out much later when you have a public inquiry as happened
in the Lawrence case. What troubles the Law Society is that it
is not just perhaps a question of sloppy or ineffective police
investigation. What it would do is change the whole basis upon
which the criminal justice system is going to operate because
it would remove finality, which would mean that in approaching
an investigation, in approaching a trial, one would be advising
one's client on the basis that there is the potential for further
proceedings if there is an acquittal. That may have an effect
upon applications that are made in relation to the admissibility
of prosecution evidence. One may for instance find that evidence
is withdrawn by the judge, let us say perhaps a potential confession
is withdrawn by the judge. That evidence does not go in before
the jury, as a result of which certain tactical decisions are
then made, one of which may be that as the confession is not now
before the jury the defendant will not go into the witness box
because there is no evidence upon which he needs to be cross-examined.
One then finds in due course that the case is re-opened and there
is a new trial. How is that going to be dealt with when the defendant
gives evidence in the second trial? Is he going to be cross-examined
upon the reasons why he did not give evidence in the first trial?
One of the reasons—
152. Forgive me, Mr Murray. You are taking me
well away from the question I asked you, if I may say. It is this
point about will these changes encourage police forces to investigate
crimes with less than due diligence in your judgement?
(Mr Murray) I think there is a danger that they will.
153. Seriously?
(Mr Murray) Yes.
(Mr Cape) If I can give an example of the type of
situation, again, as Christopher Murray said earlier on, the thing
with more serious and more complex cases is that it is not simply
a question of black and white. There are many lines of inquiry,
there are many issues, not simply about whether facts happened
or what was in people's minds at the relevant time. I think that
often gets forgotten. It is as if you can reproduce reality and
say, "This is what happened".
154. Forgive me. Let me say something else.
Mr Trollope made this point earlier. Both of the principal parties
concerned with bringing a prosecution, in other words, the police
and the Crown Prosecution Service, want a conviction. That is
what they are paid to do. There are tests in that process all
the way along, the final test being that the CPS are making a
judgement on the strength of that evidence. Surely in practice,
if the CPS feel that there is more evidence available to the police
or it is likely that more evidence will be available to the police
that the police have not uncovered, they should say at that point,
"Go and look again. Try the other cars in the showroom."?
(Mr Cape) I do not think it works satisfactorily in
that respect. Choices always have to be made because of timing,
resources and things like that, about what inquiries are going
to be made, what lines of inquiries are going to be taken. The
police may well be affected by the lines of inquiry that they
pursue by other evidence they have at the time, whatever might
have been said by the defendant and so on. Therefore, in our view
it would make it easier for the police to be able to say, "We
will not pursue these lines of inquiry. We think we are on fairly
safe ground with those that we have pursued. But if all else fails,
of course, then we can argue that we did do this work with due
diligence and we can now go back and pursue it."
155. Is the implication of that then that the
CPS sanctioned some prosecutions which, on the level of available
evidence, are wrong to bring? That would seem to follow from what
you are saying.
(Mr Cape) I think what follows from what I am saying
is that the Crown Prosecution Service might well properly sanction
a prosecution on the basis of the evidence that they have been
presented with by the police, but of course what the Crown Prosecution
Service does not necessarily know is what information the police
have not presented them with, particularly because they become
involved in it only at the later stages. Unlike, say, in France,
they are not in a position to direct the police to pursue certain
courses of inquiry, and very often by the time they might be in
that position it is too late because the trial is upon them.
(Mr Murray) There is an additional practical problem
which I think, with respect, Chairman, your question may presuppose:
that the Crown Prosecution Service at every stage is involved
closely with the police officers in relation to a particular trial.
It does not happen that way.
156. No, Mr Murray, I did not mean that. When
the police present the file the CPS solicitor will look at that
and make a judgement about the strength of that case. It is certainly
within my knowledge that at that point they can and do suggest
that the police ought to do this, that or the other.
(Mr Murray) Certainly that happens on occasions, but
the difficulty is we all know as practitioners that the Crown
Prosecution Service works under enormous time pressure. Quite
often prosecutions may well be sanctioned which—
157. That is a useful point because it may suggest
one of these days where else we might look.
(Mr Murray) If I can adopt a line that was adopted
by the Director, I also sit as a Recorder in the Crown Court and
there are occasions where cases come in front of me where I cannot
for the life of me see why they have got as far as they have.
158. I think some of us would have that experience.
Can I ask you finally, and I think you, Mr Trollope, commented
on this to a degree a little earlier. It is the emotive cases,
I think you called them, murder, rape and so on, where there is
an acquittal and quite clearly victims, victims' relatives, feel
that the system has let them down. What experience do you have
of the way the police deal with this presently?
(Mr Trollope) I think the police handling in those
types of cases has come on in leaps and bounds in the way that
they handle victims, quite rightly, and the way in which rape
victims are interviewed and how they are treated pre-trial and
so on. I think therefore that the way in which they deal with
victims these days has improved enormously. There is no doubt,
as I said earlier, that of course a conviction is the result that
the witness and the investigating officers want and are looking
for and will inevitably be disappointed if they do not get. I
think also that, notwithstanding the pressure on them to secure
a result, poor investigations are carried out and even against
the backdrop of an acquittal being final, even now poor inquiries
take place and not every lead is chased up and so on. I do think
that in the context of the matter you were just asking Mr Murray
and Mr Cape about, if this exception becomes part of our law there
will be a new backdrop against which all inquiries take place,
namely that the trial, if it results in an acquittal, will not
be the last word on the matter. I think this may even subconsciously
affect investigators and prosecutors.
(Mr Murray) May I make one further point in relation
to the Crown Prosecution Service, because of course when they
are considering the evidence it will be in the form of statements
that will be presented and will have been taken by police officers.
Understandably, but unfortunately, there is a tendency among some
police officers to put into a police statement what is considered
to be helpful to the case as they see it and to omit what they
consider may be unhelpful. If that happens that will normally
come out in cross-examination of that prosecution witness at the
trial, which will obviously materially affect the outcome, and
it may of course have some relevance to Mr Phillips' allegations
of perjury. Putting that to one side, the difficulty is that the
Crown Prosecution Service lawyer is reaching a decision on evidence
which is incomplete because he has in front of him a statement
which only tells half of the story. You cannot criticise the Crown
Prosecution Service for bringing that prosecution when clearly
it is bringing the prosecution perhaps under false colours.
Mr Howarth
159. Before we leave the police investigation,
Chairman, can I just put a question to the representatives of
the Law Society? In your memorandum, paragraph 6, you talk about
the police investigations and their keenness to pursue cases which
they have lost and you say: "this could become persecution
of the acquitted defendant, used disproportionately against ethnic
minorities because of racism in the criminal justice system."
That is a very grave allegation for the Law Society to make. Do
you not have confidence in the police service?
(Mr Cape) The point we are making there is largely
the point that was made in the Lawrence inquiry, that there is,
most importantly, institutional racism.
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