TUESDAY 5 NOVEMBER 2002
Mr Chris Mullin, in the Chair
Memoranda submitted by the Metropolitan Police and the Association of
Chief Police Officers
Examination of Witnesses
MR IAN BLAIR, Deputy Commissioner of the Metropolitan Police and MR JOHN BURBECK, Chief Constable of Warwickshire Police, and lead for Association of Chief Police Officers on Criminal Justice, examined.
(Mr Blair) We think it is about inclusivity of evidence. A number of the provisions that are being discussed are around what I would describe as treating the juries as adults, giving them the maximum amount of information and then allowing them to choose and put weight as they see properly on that. Obviously, the classic issue here is about previous convictions. We feel that if the jury is the light by which freedom shines, we had better make sure it has got all the light available to it. That, I think, will be our major issue. I think it is also fair to say, in terms of the whole Home Affairs Select Committee, the position both of the Met and of ACPO is that criminal justice reform is only partially legislative. There is a huge amount of work to do which is already well underway about modernising the way in which different agencies work together. Certainly the Street Crime Initiative has shown us a holistic picture of criminal justice and a lot of this is possible to fix, I think, without legislation; but some of the legislation is very important to it.
(Mr Burbeck) Yes, I very much support what Ian Blair said and would wish to add that the police service sees a deterioration in confidence in the criminal justice system, and that is across all parts of the community. The impact of that is that witnesses and victims will not come forward. As a result of that we have a downward spiral of performance of the whole system. It is with a desire to improve the confidence in the criminal justice system and probably in order to achieve that, as we see it, the only way is to alter the balance slightly. The police service has no wish to reduce the rights of the defendants, but there is a desire to improve the rights and conditions and support for victims and witnesses.
(Mr Burbeck) In order to address low level criminality - what I call bullying in communities, that is the reality - we have to achieve two things. The first thing is that you to apply sufficient controls to the offender - the defendant - and give plenty of support and encouragement to victims and witnesses to come forward. There is a great reluctance in communities for them to come forward and first of all report, and secondly give evidence against these individuals who intimidate them and who make their lives hell in local communities.
(Mr Burbeck) The first thing we would want to see are extra pre-charge conditions where we can take offenders and, before we have the evidence for a charge, we can arrest them; then proposals to be able to put bail conditions on them not to intimidate or approach victims or witnesses, perhaps not to go to particular parts of communities, would help to create a situation where we could obtain evidence and witnesses from victims and prepare a full case before we charge.
(Mr Burbeck) Rules of evidence. We want greater inclusivity of rules of evidence.
(Mr Burbeck) Under the Human Rights Article 5.1c (as I understand it) there isauthority to detain. In other words, it is perceived to be compatible with human rights to detain a person while investigations are taking place. It is the police case that bail is less restrictive than detention and therefore if detention is compatible with human rights, so should bail be. Why would we want bail prior to charge? At the moment, if we have an offender perhaps for violence in the local community or perhaps a suspect for a very serious offence - such as terrorism or a child abduction - we may well have sufficient evidence to arrest but we might be in a position where there is insufficient evidence to charge or, particularly, insufficient evidence to prefer an appropriate charge. We may be waiting. We may be waiting for forensic evidence; we may be waiting for an unconscious victim to recover. At the moment the police service has two choices: we do nothing, we allow the offender to continue as a free individual until we get this extra evidence so that within a reasonable time of arrest (ie 24 or 36 hours) we are fairly confident we can prefer a charge. So we allow this individual - he may be a violent person or maybe a terrorist or likely to abscond - to go free. The other choice is that we arrest because we are concerned about leaving that individual free and uncontrolled, but we know that at that stage we are unlikely to have sufficient evidence to prefer the correct charge. What we do is either we have to release them or we prefer usually a much more minor charge which we know we can defer. All the moves towards charging people with an appropriate offence in order that justice can progress properly in a correct way are completely overturned by the two options that are available to police at present. Therefore, we believe there is a need for us to have the opportunity to put bail conditions on defendants prior to charge and, of course, we accept that these conditions have to be constrained in certain ways and we also accept they will be subject to judicial oversight and appeal.
(Mr Burbeck) No, not ad infinitum. That would be completely inappropriate. We do accept there need to be reasonable time limits. Perhaps a reasonable time limit and if we want an extension then we should go to judicial review and we would leave that time limit open to those who are concerned to constrain us. But we would be looking certainly at a few weeks.
(Mr Burbeck) Yes.
(Mr Burbeck) Sorry, no, I have accidentally slipped into a legal term. I will stay with the term judicial oversight
(Mr Burbeck) We think it is essential.
(Mr Blair) Can I just add that this seems to me that this is part of trying to make the justice system more logical. One of the things that we have got with the current PACE codes of practice is these time limits and constantly - whether it is our own cases or the cases you read about in the press - you will see the police going right to the edge of that 36 hours or whatever, and then charging the person. There are two bits to that. One is that this would be another way of doing it so people are not held in custody while that process goes on; the second one - that we will be pressing for in the Codes of Practice - is about looking at the clock and saying "Is this clock real?" And if the person cannot be questioned should that be excluded from the period, so periods of sleep or periods when a legal representative is not available, is that part of the period? I think this is all about asking what is a logical approach to this. I would see that pre-charge bail with certain constraints and, as we say, legal oversight and so on, is an appropriate way and it will stop people being held for that 36 hour period and then charged at that point. The other issue that is important is a connective issue which is the idea of bringing the CPS into the charging process. As you know, there are a number of experiments and evaluations of that going on. If that is going to work in practice across the whole country, then the idea of pre-charge bail I think is almost inevitable otherwise you are going to have a lawyer in every police station and that is going to be difficult.
(Mr Blair) I do not know the answer to that.
(Mr Burbeck) I cannot help either, I am afraid.
(Mr Burbeck) I think, as I opened, the police position is that bail before charge is less intrusive than detention, and detention is compatible - that has been held on many occasions - and therefore pre-charge bail would also be compatible. That is the police position.
(Mr Burbeck) We would like it for the whole range of offences because even minor offences can cause enormous disruption in communities and we do not want individuals in custody unnecessarily. As Ian Blair has said, a by-product of this is that we will be able to release some offenders earlier than we currently do. That is an important aspect. There are some benefits to the defendant as well as significant benefits to the investigative process and, very importantly, to victims and witnesses.
(Mr Burbeck) We had anticipated that the conditions would be more limited. In particular, we are interested in those that ensure the offender does not go near victims and witnesses, that the offender does not go near particular places in the community, and that there is some means of preventing them from absconding, so appropriate conditions to keep them in this country.
(Mr Burbeck) We do. The problems are associated with tracking some of the offenders down, particularly when the bail conditions have not been sufficiently tight. Then the other is that there has been some misunderstanding about whether individuals need to appear at the front door when it is alleged they are inside a building when they are subject to curfew. That is being sorted out. There are problems with the existing bail conditions, but they do largely contol offenders who are waiting to appear before a court. They are largely successful.
(Mr Burbeck) No, because we believe it will make the criminal justice system more effective, we believe we can manage this within the existing resources. We are not asking for extra resources associated with this particular initiative.
(Mr Burbeck) A month, four weeks.
(Mr Burbeck) At the moment we either keep them in custody or we release them.
(Mr Burbeck) No, we keep them in custody for up to 36 hours. If it is a very difficult and very complex enquiry - and there have been a few high profile cases recently in the press involving children, children who have been abducted and other serious crimes - we have to use every single hour that is available to us. What we would imagine in this arrangement is that we would release the individual earlier for them to re-appear at the police station a month later. That is for those who we keep in for a long time. The others, we allow them to remain completely free until we have sufficient evidence to charge. Not only is there a risk to the community, in that these are often persistent offenders who carry on offending, but secondly they remain in communities intimidating their neighbours.
(Mr Blair) If I can start from another position and then come back to that answer. The reason why I said a lot of what needs to be done and reformed around criminal justice is about modernisation is because it is that issue that you just raised that we would describe as attrition which seems to us to be the key performance indicator across the whole system. It is the number of cases that fail, that are either cracked or ineffective. I only recently understood that these were different things. A cracked case is where a plea of guilty occurs at the last moment and so the court case does not happen but something does; a judicial disposal of some sort happens. An ineffective trial is where the trial does not occur at all and the case is lost. I do not think it is lost after a jury or a magistrate; it is lost before that point. In some of our magistrates' courts in London that is running at over 50 per cent of the time. Of the key components to this, the key one is prosecution witnesses not attending.
(Mr Blair) We have had a lot of scurrying around this morning. We do not know where the 30,000 comes from.
(Mr Blair) Yes, and one's assumption is that that is probably somebody saying that there are this many cases and this proportion of them are ineffective, ergo that equals 30,000. But I would not want to be stuck on that figure.
(Mr Blair) It is a very, very large number of cases.
(Mr Blair) Abandoned because of two things, I would say, if I might. There is some intimidation - we know about some intimidation - and it starts very early. It starts early enough, for instance, that one of our problems around street crime last year was victims' parents saying, "No, no, he is not going to make a statement". It starts right back at that. But I think it is also not just about intimidation, but about victims and witnesses being mucked about. That is this bit about ineffective trials. If a witness is called to court three or four times, and onnone of those occasions does he or she give evidence, then the chances are they are not going to turn up for number five. We have all the statistics that say the view of the customers of criminal justice is of a very poor service. There is figure - which I can find in a moment - of the proportion of people who actually give evidence on the day they are called to court; this figure is actually quite low. People just feel that there is no citizen focus in the court system. One of the things we are in discussion with with the Lord Chancellor's Department is what is their performance indicator? Their performance indicator is how full the courts are. The way they do that is by double and treble and quadruple booking of the courts.
(Mr Blair) It is certainly being undermined by that process.
(Mr Blair) I think that is where we have to work with the Crown Prosecution Service and decide who is really responsible for witnesses. It is an area of the criminal justice system that is everybody's interest but nobody's particular responsibility. There are a number of experiments going on. We have one running at Haringey in north London; I know there is another one running in the West Midlands, where we are looking - if I can describe it this way - at a cradle to grave witness service run by the police. There are other experiments where the CPS are taking that responsibility. The issue is that with vulnerable victims and witnesses we have to be in a position where we get them to court, we actually bring them to court. All the work that is being done round court buildings and separate entrances is no use if the tube station and the bus station are the places where the intimidation takes place. With so many of the young offenders, the offenders and the victims are known to each other. That is the key point. One of our big initiatives is around schools. We have put 60 Met officers into schools full time. Part of that is actually supporting victims - who are school children - of offences by other school children.
(Mr Burbeck) The pilots to date have shown that there are significant benefits when the police and CPS work closely together, not only to prefer the correct charge, but also in the investigation and the post-charge case management. The latest report was published about three weeks ago on the pilot sights. There are about six pilot sights across the country. In order to be effective what we need is the contribution of the investigative skills of the police together with the legal skills of the Crown Prosecution Service. You are absolutely right, in order to achieve that there needs to be sufficient time for dialogue, sufficient time for consideration of the evidence and therefore it is often difficult to immediately prefer the correct charge. In many cases that can be done by having immediate access to the CPS lawyer; on other occasions it cannot be. On those occasions - on many occasions - the police would be happy to bail unconditionally because of the particular offender's background circumstances. But there are other cases - which we have already had a discussion on - where the police would like the opportunity to put conditions on the bail. The major benefits that come out of this particular change to CPS charging are that, whilst more time is taken up in the early stages of the investigation - in other words, time before charge - the whole process post-charge seems to run much more smoothly. And all the indicators go the right way; there are more guilty pleas entered early, there is greater satisfaction from the witnesses, and there seems to be an agreement that the sentencing is improving as well. All in all, from the pilot sights, this is a move that we would support with some of the other changes in conjunction, ie the changes to the bail conditions pre-charge, providing it is implemented in a manageable way. Those are the lessons we have learned from the pilot sights. If it is rushed into, it takes a while to settle down before you get the benefits. So the implementation is more critical than the actual concept.
(Mr Burbeck) No, just the implementation. My sense is that the Crown Prosecution Service will be asking for additional resources. It is much more resource intensive for them even if only they have to provide extended hours coverage; it may not be 24 hour coverage, but it is going to be extended hours in a way that they do not currently.
(Mr Blair) No, I think Mr Burbeck has dealt with everything, thank you.
(Mr Blair) I feel very strongly about this issue. The statistics are quite unnerving. In the Hackney pilot of compulsory drugs testing for everybody brought into the police station and charged, it is 62 per cent testing positive for opiates. Yet only seven per cent of those people agree voluntarily to any form of drugs referral scheme after arrest. Our view is that this may mean - because drugs arrest referral teams are quite expensive items - we are putting the money in the wrong place. The money ought to be around an extension of the testing scheme across areas where that would be expected to be a high result - possibly nationally, but certainly in London and a number of other major cities. Then we ought to be in a position where somebody who tests positive for cocaine who is a prolific offender is refused police bail so it goes to court. Then court bail should be round an agreement to enter and continue with - which will be the key point - a drugs treatment process as a condition of bail. There is just no point in bailing a prolific offender with a major drugs habit because if we do that then they are back tomorrow. Some very good work has been done in Blackpool, the Blackpool Tower Project, which is showing exactly this effect, that if we intervene - even in the lives of these chaotic drugs users - then that is appropriate. Talking to the National Treatment Agency and DPAS (the Drugs Prevention Advisory Service) they are not opposed to the concept of a compulsory entry to this process. A lot of the drugs users say that they need to be told to do this. The difficulty is - and I think this is a key difficulty - you cannot make bail conditional on undergoing treatment which does not exist. The treatment service has to be available before you can get to that point. If we are looking for a clue as to how you reduce offending, that clue will be in the lives of chaotic drug users.
(Mr Blair) I think the result would be worth it, yes. I certainly cannot see myself asking for any extra officers for the Met for that purpose. We need a bit of training on drugs testing. It is a relatively simple process; it is not intrusive (it is swabbing). I think the CPS will need more lawyers, the drugs treatment agencies will need more people. One thing we cannot have is that the only people who can get access to drugs treatment are criminals; that would not be a very appropriate end.
(Mr Blair) I would think so, yes.
(Mr Burbeck) It is the only way we are going to stop the revolving door justice for these persistent offenders who are involved in acquisitive crime to feed their habit. Of course, a spin-off also is that it will help to achieve the health of the nation objectives.
Mr Prosser: So ACPO support it as well.
(Mr Blair) Or perhaps, Chairman, a targeting of that in that sense. If you do try to spread drug treatment for active criminals across the entire country, then we are going to take a very long time before we get there. But we already know the boroughs which are under most pressure; maybe we just start there and see whether this works.
(Mr Blair) You cannot remand somebody in custody for not going to treatment that does not exist. That is Kafkaesque, is it not?
Chairman: It is, yes. Thank you.
(Mr Blair) I can scarcely comment on Oxford, but that does seem to me to be perhaps pushing it.
(Mr Blair) My colleague tells me he knows something about it. He used to be the Area Commander at Oxford so he clearly has some options there.
(Mr Burbeck) This is to do with the development of restorative justice, moving that into the area of trying to improve the position for the defendant and on more minor cases, considering putting an offender through a treatment programme rather than going to court, as we do for some drivers now. Some drivers go through an education programme rather than appearing at court. There is a lot of sense in that. If we go back to our earlier arguments about trying to reduce the acquisitive of drug abusers, but the condition would be that if they did not complete the treatment programme they would then go to court.
(Mr Blair) I think that would be unfair. If it were just that, that would be awful.
(Mr Blair) That would assume that many serious offences are well pre-planned. They are not. They arise at 3 am in Stoke Newington High Street and suddenly you have this. I know, from having been a detective during the PACE period that the pressure of that clock is obviously helpful in some ways to be more efficient, but it is also damaging to the quality of the investigation. In big cases you literally have an officer whose job it is to keep telling you you have only got 59 minutes left. That is not a very good way of operating.
(Mr Blair) There comes to a point where that extension is the end. Of course, if you knew that you could bail them for 48 hours that would be an awful lot better, I think, for everybody in the heat of the moment than the present system.
(Mr Burbeck) Can I add to that that some forensic evidence takes time to obtain. The DNA process takes days, not hours. If you have an unconscious or seriously traumatised victim, it takes a day or two before you can get any realistic story from them. So, we come across a case, perhaps a rape, you have arrested the rapist, the victim is too seriously traumatised to give evidence and needs medical treatment; the PACE clock has started. What choices do the investigating officers have? They release the offender without any conditions or they hang on hoping they will get sufficient evidence to be able to prefer a charge within the PACE clock. I am in the same position as Ian Blair. I have been senior investigating officer in serious cases, and it is extremely difficult and stressful and justice is compromised.
(Mr Burbeck) In fact, the pilot sights are showing the exact opposite. The spin-off, which no-one really expected, is that there is a dramatic increase in team work. There has been a lot of innovation as well. Innovation in making the processes and the judgments better than was originally intended. What was intended was to bring in a lawyer's mind to ensure that the charges that were preferred were the right ones and therefore would not subsequently be changed. The advantage to the process was that it shortens the number of appearances before court. The advantage to the defendant, of course, was that the defendant knew what the allegation was at the earliest stage. The reality is that this joint working and this concept of a prosecution team has developed out of the pilot sights in a way that most people could not have anticipated.
(Mr Burbeck) That is what is happening. It is significantly better.
(Mr Blair) The phrase is that you bring the CPS in earlier and you keep the police in later so that they actually cross over and divide and hand over.
(Mr Burbeck) It is less of a relay race of handing over the baton which is what used to happen; more of a team.
(Mr Blair) There is going to be a whole issue around routine cases, shoplifting and so on.
(Mr Blair) I just do not think one would want to get involved in lengthy discussions about that process. There is a phrase in the pilot about routine. We need to have a definition of what routine means. For all serious and complex cases most of this happens already. We are constantly in contact with the central police work division of the CPS, the Treasury Council, and so on, before charges are preferred. That is fairly normal.
(Mr Burbeck) You are right. In the pilot sites there has been a longer time between the start of the investigation and charge when CPS are involved than previously. The time is then saved post-charge. That is why the police are so strongly in favour of this change for pre-charge bail, because we want those people out of the police station but with some sort of constraints in order that it gives the CPS chance to consider properly the proposals for charge and in order to prefer the charge properly. Indeed, the police have an idea that perhaps charges could be preferred by post, so there would be no need for the offender or the defendant to come back. If they received them from CPS in the post and their counsel were content with that, that would save another attendance at a police station. That is in the defendant's interest.
(Mr Burbeck) No, we are not proposing to string anything out; quite the reverse. What we are trying to do is bring some changes in which dramatically shorten the whole judicial process. It is too long. However, what we do know is that in order to get significant savings down the road, a little more time needs to be put into the planning end. That is what we are talking about. We are talking about putting more thought, more legal expertise into the pre-charge phase in order that the correct charge is preferred because we know if that is what happens, what happens after that is much quicker.
(Mr Burbeck) No, the evidence from this report which I have here shows that -----
(Mr Burbeck) This is the Home Office Charging Suspects, Early Involvement with the CPS Pilot Stage Two Evaluation published, as I say, last month. It shows that the conviction rates are going up. The number of cases discontinued is reducing. In the past police would charge which inconvenienced the defendant, the papers would then go to the CPS who would discontinue. How are the human rights of the defendant being addressed in that process? We have reduced the proportion of discontinued cases. That means it is a better deal for those defendants who were wrongly charged.
(Mr Burbeck) Ineffective trials are down; or, if you like, effective trials are up. The proportion of guilty pleas and pleas at first hearing are up. The quality of files is up. This is what has happened so far in these pilots. That is a Home Office study, not a police or CPS study. We are confident that these changes bring a better process. It means the right offenders come into the process with the right charges and then they get through right to the end to get an appropriate sentence because it is a better quality process.
Mr Cameron: Thank you. We will study that report carefully.
Chairman: Can we now turn to what I think is possibly the most controversial aspect of the Bill and that is the suggestion that past criminal records should be disclosable. Mrs Dean?
(Mr Blair) I wondered how long it would be before that phrase turned up. Let us be clear about what the police service is pressing for. It is not pressing for all previous convictions to be revealed to a jury or magistrates as a matter of course. It is pressing for similar previous convictions to be revealed. In that we rely very heavily on what is called the Oxford study of mock juries that were shown a series of cases with different information being provided. What it showed was that there was an increase in the likelihood, as it were, of conviction where similar offences were revealed to the jury. Interestingly, just to show again my argument that we need to treat juries as adults, when the offences were revealed that were not similar it was either no effect or it was almost the opposite effect. In a way that might undermine my own argument in that case. What I am trying to say here is that the jury will concentrate on what is relevant to it. I think that is the key piece. If the jury is so important - and I believe it is - then we should be giving them all the relevant evidence. One phrase that I have never fully understood in the criminal process is the phrase that that evidence cannot be admitted because it is more prejudicial than probative. That always tends to me to be odd because presumably the evidence that is most damning is likely to be the most prejudicial to the defendant. That is something that we ought to be putting to the jury. It seems to me that previous convictions for similar offences are part of that process.
(Mr Burbeck) I very much support that. The examples I give are that there is an individual with five convictions for shoplifting. It is reasonable, the police believe - or it is right - that the jury should be aware of that if he or she faces another case of shoplifting. If, on the other hand, they have convictions for violence or stealing a car we would say that is not relevant. It is similar convictions for a similar offence that are important. The early discussions we have had with those who were considering the drafting of this section, indicate that if there are any proposals to introduce this sort of evidence they would be wrapped up in a number of very complicated tests. The police service would be very keen to ensure that this did not occur. We do that for the simple reason that in a section under the Theft Act (I cannot remember the section) for dishonest handling there has been the possibility to admit similar fact evidence into that piece of legislation since 1968. It is never used. It is never used because, for all sorts of legal interpretations, it is felt to be too prejudicial. We are concerned that if the rules for including this evidence are complex, the practice will be that they will never be admitted. Therefore we want a simple test, which is that evidence of similar convictions will be automatically admitted unless the human rights test of unfair trial would be breached. We want a very simple rule of inclusivity.
(Mr Blair) I think what we are saying is that the Law Commission's tests appear to be pretty convoluted to us. I think here there is something relatively simple. It seems pretty unfair to ask twelve men and women to make some choices about things when one significant piece of information is deliberately and permanently withheld from them. There have been many cases where acquittals have occurred on major charges and then the jury have heard what the defendant's previous record was. That has been particularly acute in rape cases and with dreadful effects on the jurors.
(Mr Blair) Very simple.
(Mr Blair) I think we would want to consider and see what is being suggested. There is again a worrying indication that allegation of abuse against children weigh very heavily with jurors. I can understand that something of that nature would be something we would have to consider. You cannot rule out judicial discretion in this approach, but what we are looking for, I think, is a limit to that discretion. One of my areas of expertise in the past was about rape investigation. When we first got the piece of legislation that meant that a woman's previous sexual history could not be revealed in court, most judges still continued to allow it on the defence submission. I think we have to be very careful here and say it will be restricted to very, very peculiar cases.
(Mr Burbeck) I think as well as the constraint on similar evidence, the police would be saying that it should be current similar case. We are not looking to include very old material. Take the child abuse issue - which I think is the most sensitive and the most difficult - if an offender had two or three convictions which were current or very recent for child abuse, then we would say that serious consideration ought to be given to the jury having that and this is where we would be expecting the judge to make this decision using the human rights test.
(Mr Blair) I think, other than in very occasional cases, the evidence of previous acquittals ought to be probably excluded in that sense. We had that very significant rape case where there were a series of acquittals on the same modus operandi and that, I think, was a very rare one. I cannot see that as being anything I would want to bring forward. I think this is about normal cases and previous convictions. Not anything else. I think hearsay evidence, with all the safeguards, is something that we need to be examining. Again, it is this issue of saying to the jury, "Here is all the evidence, please choose".
(Mr Burbeck) If I could take the hearsay evidence issue, we would wish to increase the occasions on which hearsay evidence can be admitted. A good example is when the elderly make a statement and then, for all sorts of reasons, cannot remember a while later at the time of the trial. We would like their original statements to be admissible. We also have problems with hearsay evidence in connection with people who are perhaps less able - disabled in some way - because we are conscious at the moment that the rules of evidence are really aimed at the people with all their faculties who are verbally and orally skilled. It is currently difficult to admit evidence from a wide range of disabled people. We want the criminal justice system to be all inclusive and therefore we believe that the rules of evidence and, indeed, the hearsay rules of evidence, need to be changed. Then there is another area of evidence that concerns us, and that is to do with international crime. International crime knows no boundaries, as they say. We are increasingly having to deal with investigative agencies from other parts of the world who work to different rules of evidence as our own. There is nothing in the current proposals which move towards integrating the different rules of evidence. Ours are most exclusive than most. The hearsay evidence issue is one. In France, if they are executing a search warrant, a team of agents or officers will execute the warrant and only the team leader submits a report about what is found. That is not admissible in this country because unless the team leader actually found the items, the team leader's report, although it has judicial value in France, has none here. It is hearsay evidence. We would have to go to the actual individual who found the piece of property in order to get that piece of evidence admitted. That is a simple example, but there are many of these where our rules of evidence work against effective international co-operation.
(Mr Burbeck) We are just giving an example of where there is a great difference. The French judicial system has operated on that basis for many years. There is a very high level of integrity in their law enforcement officers. What we are suggesting is that if there is a judicial process abroad which has a very high level of integrity, then we should consider importing it into our rules of evidence.
(Mr Burbeck) It is the complexities of the investigation. It may be that this piece of information is merely background information to progress the tracking of a piece of evidence from point A to point B and we have to evidence each step. It is a lot of additional work which is not currently logged abroad in order to fill a gap in what is purely an evidence trail. I am not talking about major pieces of evidence. This is just an evidence trail for an item which we currently have to prove - and correctly so - as we have identified: that item found there is this piece which we are talking about in the trial process. Every time it changes hands it has to be evidenced.
(Mr Burbeck) If they are appearing before a jury then there is a challenge to the evidence. Presumably, if there is a challenge to the evidence, then the evidence will not be quite as clear cut as you suggest. We are asking the jury to determine on the facts. That is what the country is doing. We are saying that if they are sufficiently skilled and trusted to determine on the facts, then they should be sufficiently skilled to determine on some of the evidence. They should be able to weigh evidence. We do not accept the fact that you can trust them on facts but there is a perception that they are too ignorant to weigh evidence. We believe that they can perform both roles.
(Mr Burbeck) But we say that the research shows that this is not the case. If it is dissimilar evidence they are able to make the judgment that it does not affect their decisions in any way. We believe that juries are made up of people who are much more mature than the legal system gives them credit for.
(Mr Blair) If we are going to rely on the research, you have to rely on the research. And that is one of the things the research actually said. But I think this is going to be around "What is the defence being put forward?" If it is a simple issue of shoplifting, that this item is in the bag, we found it, the alarms have gone off, his or her defence is that it must have got in there by accident and he or she had put it there and forgotten to pay for it, that is an argument that can be put forward very easily, but it is much more difficult to put it forward if you have five previous convictions for shoplifting. You would expect somebody to be pretty careful about what they did with the items. This will be a piece of evidence that they will weigh in the generality. We have to accept that the way evidence is presented changes criminal defences. For instance, as in the case of rape where, in the past, a lot of the defence was "It wasn't me", the "It wasn't me" defence has disappeared because the DNA says "It was you". Therefore, the only defence is another defence. I think this is part of that process of getting the best possible evidence.
(Mr Blair) Again, I think there would be a reasonable test. I do not think I would stick on to it that it has to be within five years or whatever else. It is just a reasonable test.
(Mr Blair) Yes, you do want some consistency, but you also want perhaps differentiation between different types of offence. A GBH with intent maybe something that somebody does not do very often, but the fact that the person already has a conviction for that, albeit ten years ago, it is significant. Whereas for more minor offences you would be looking for a currency. I am sorry, I do not have the answer to that, but I can see it is a point which would need to be clear.
(Mr Blair) Indeed I have.
(Mr Blair) Yes. That is something that we cannot rule out, but I have spoken to you before, Chairman, about the Met's anti-corruption activity which is pretty significant. I think we are operating in a different era of events and a different police culture. I do not think we can legislate round deliberate misfeasance in that way. I can give you an example which has happened recently (and I will not name any more than this). A particular piece of police misbehaviour occurred recently in London and was immediately reported by two other officers. That is happening all the time, and I do not think that we should be operating on that basis. One of the things I was disappointed about - without being too critical from their position - were some of the arguments in the Bar Council's submission around this that were specifically about rounding up the usual suspects, police laziness, police this, police that. Of course that is possible, in the say way as there are some bad barristers and some bad solicitors, but I think we have to be asking what is the whole picture here. The whole picture is that rogue squads are a pretty rare event now. Previous convictions is not a piece of evidence in itself.
(Mr Blair) Yes, he probably would, but you might recall that I was the head of Police Complaints and Anti-Corruption exactly ten years ago in London and I have no illusions.
(Mr Burbeck) Could I just support what Ian Blair has said. The world has changed dramatically in that there are many more checks and balances in the process than there ever were, coupled with a dramatic change in culture. Police forces have pro-active teams who go out to dig out corruption within the forces. We do not just wait to hear about reports and complaints, if we suspect anything ourselves we pro-actively go searching for any potential wrong-doing. The whole of the custody process is much more objective and independent than it ever was before and in the early stages of PACE. The involvement, as we have heard, of the Crown Prosecution Service in the investigations from a much earlier stage has been going on for some time, but now, of course, they will be involved before charges are preferred. I will go even further than Ian Blair. I think it is unusual for a small group of officers to behave outside the law. I think it is impossible for a squad, and for a small group it is extremely difficult. If we get wrong-doing it is generally one or at the most a couple of officers and we crack down on it very, very quickly. There are many checks and balances in the system. What we are now asking for is some checks and balances on the other side as well.
(Mr Blair) I certainly would, although led by the Met it has now become a major ACPO national activity. There are annual anti-corruption conferences; there is a lot of spread of best practice. And if you or any of the Committee wish it, I am very happy to give a presentation at some stage around our anti-corruption work; I think you might find it quite interesting.
(Mr Blair) In terms of intelligence that is what we do. We have a list of the prominent nominals as we describe them; other people describe them as persistent young offenders or whatever else it is. That group exists and it exists inside our intelligence systems. The presence of previous convictions is not evidence. It is only part of a bigger picture.
(Mr Blair) No, but this person was walking across a square a hundred yards away from WHSmith's where the shoplifting took place, does not mean that we arrest them for that shoplifting.
(Mr Blair) Yes, but it does not actually make them the criminal; there has got to be a lot more. When that criminal, who has then been arrested and charged, stands in front of the magistrate or the jury without mentioning that he or she has got this string of previous convictions for previous offences, then we say that is unfair to the prosecution.
(Mr Burbeck) We are asking for an increase in the circumstances under which it can be admitted, not a free for all. In none of these changes are the police asking for unfettered, uncontrolled increase in our ability to put all evidence in before the magistrates or the jury. We are asking for increases in opportunity. We are asking for relevant evidence to be admitted, not for a whole range of partially relevant and unrelated issues. We are not asking for that. We are asking for relevant hearsay evidence. I talked about one where it involves the elderly who, for whatever reason, lose their memories. I have talked about international aspects. I have talked about where we have vulnerable witnesses, disabled witnesses. The other area that causes concern is when there are several defendants and if a large number of them plead guilty then a lot of evidence associated with them disappears from the prosecution case and you can often end up with perhaps only the ringleader pleading not guilty and the prosecution loses the opportunity to bring in all the evidence associated with the accomplices because it is hearsay evidence. That is the sort of circumstance where we want to be able to admit all the relevant evidence. It is a complex world. The rules of evidence in this country are extremely complex. They have become more and more complex over time. We want the whole thing simplified. We want relevant evidence; we want clear rules; and we want to be able to increase it in some of these areas. We want the country to trust juries and magistrates to be able to balance and weigh evidence. We want it to become very difficult to exclude a lot of evidence on these technical rules which have built up over time.
(Mr Burbeck) I accept that the inclusion of the previous convictions such as we have outlined would shift the balance slightly away from the defendant towards the state, yes, I do. But most of the changes are merely strengthening the position of the state and strengthening the positions of the victims and witnesses and will have no impact directly on the defendant, although I do accept that this is one that actually does adversely affect the defendant.
(Mr Blair) Whether it moves it to the balance of probabilities is a question to which I do not think anybody can say. There is not determined test on this. It is not going to be part of this Bill, but we - and I am sure many of you - wonder about the continuing relevance or appropriateness of our inability to do any research about how juries actually behave. At some stage somebody needs to come back and say why does the Contempt of Court Act rule out research about juries because in a way we are all operating in the dark here. Even the Oxford Study, because it could not be real juries. That does not seem appropriate at this stage.
(Mr Blair) It is the Contempt of Court Act 1981 that actually says you cannot do research on a jury.
(Mr Burbeck) We have significant concerns about disclosure and pre-trial management. I may well wrap the two up together as I respond to the questions that you ask. Article 6.3.d. - I am going to quote again from the Commission of Human Rights - says that: " a defendant should have the right to examine or have examined witnesses against him or her" - we accept that - "and obtain the attendance and examination of witnesses on his or her behalf under the same conditions as for the witnesses against him or her". It is "under the same conditions" that we think is pertinent to this particular debate. Under the disclosure regime, assuming it is properly carried out, and we do accept that both the police and the CPS have not been as professional as they need to be under the CPIA and we need to do more about it and we are doing more about it; both agencies are working harder to make sure that our side of disclosure is properly carried out. But if we disclose what our evidence is, we want an appropriate level of disclosure from the defence. We want to know who their witnesses are in advance so that we can check two things. One is find out who they are so that if there is any issue of challenge to the prosecution witnesses about character and background, there can be an equivalent - same conditions - challenge of the defence witnesses. Secondly - and we think this is quite an important aspect - when we know what the defence story is, we would wish to do some investigation to find out whether what is being alleged is correct. Indeed, sometimes if it is correct we may actually be able to end the trial - or trial process - at that stage. We believe there are significant benefits in proper defence disclosure. So, as a totality, we want a defence statement; we want proper judicial pre-trial scrutiny of both the prosecution and the defence; we want the case and issues summary that should go before the fact-finders; then we want the prosecution right of appeal against judicial decisions pre-trial, that is judicial decisions on process and on the admission of evidence. This whole pre-trial and disclosure issue is a big one for us and I hope I have outlined there what it is we are looking for.
(Mr Blair) I am in complete agreement with John. It seems to me that if we are going to attempt to modernise the system we should look across at parallel systems and the impact of the Wolfe reforms in civil justice was very, very strong. You have the plea and directions hearings, you have the disclosure of both sides and eventually the trial in the civil court is about the issues. I think one of the things that we have to understand is that there are a whole range of kinds of events going on here. I spoke some time ago to the Criminal Law Solicitors' Association and I acknowledged that for most of their clients the only way their solicitors could mount a defence was if the prosecution gave all their disclosure because that was the only way that in the bulk market there was going to be any understanding of what the case was about at all, because their clients would be difficult people with whom to interact. But at the very top end of the market there are people whose whole approach to this is to attack the prosecution evidence in a way which nobody knows what this defence is, where it is coming from. We have had cases with weeks of legal argument without ever reaching a point about whether or not these people did this. I think we just need to go back and say, "Right, let's have robust judicial case management so that when we come to trial we know what the trial is about". That seems to be very important to us. Mr Winnick was talking earlier on about attrition. The key to getting rid of this attrition rate - as it is so high - is to manage the case through the courts. We are looking for the judges to do that. I think the proposals in the White Paper - if they are the ones that are replicated in the Bill - are extremely sensible. We would be very strongly supporting those proposals.
(Mr Blair) If I could deal with that bit first and then we will go back to Auld. This is an iterative process; it is not at the same moment process. The prosecution must clearly provide first its evidence, what it understands to be relevant to the case, then the defence has an obligation to say "These are the lines of defence that we are taking". And then the prosecution will release any material that appears to be relevant to that. That does seem to me to be logical and appropriate. Going back to Auld, one of my colleagues described him as being like the Duke of York: he took us up the hill in defence disclosure and then he came back down again. I feel very strongly that we need to spend more time - as in most of our evidence this morning - preparing for the trial than concentrating on what the trial actually is.
(Mr Burbeck) Yes.
(Mr Blair) It would and it would also, I think, reduce the amount of time going on in crown courts of long delays and the jury being sent away day after day whilst all this is being discussed and so on. Again, it is about focussing on what is the issue here.
(Mr Blair) We talked earlier on about intimidation. One of the things we have to make sure of is that none of our behaviours could be described as that. I accept that. That is what the Bar Council has put forward. They have said these are likely to be difficult witnesses, hostile to the authorities and so on, and if they reveal that they feel that they are intimidated by the local police, then we would have to deal with it, but we would probably be in a much better position to deal with it than the opposite way round as it is at the moment.
(Mr Blair) Again, this seems to us to be part of the logic. If the defence being put forward was obvious at the time - it goes back to this same issue - if you are asked for an explanation and you do not give one, then when you give it, if it is a long time later on, then people are entitled to say, "Why didn't you tell us that in the first place?" Again, it seems to be a logical approach to this, a piece that the jury can weigh.
(Mr Blair) Going back to this idea that we move away from these two units of the Crown Prosecution Service and investigators being some sort of separate beast, I think team work piece. That is one that you would have to think very hard about. If any witness statement is put forward as a result of duress it is of course lamentably questionable. We need to take that into account.
(Mr Burbeck) Bear in mind that our proposals would highlight that earlier in the process. If there was a proper disclosure regime and proper pre-trial case management then you would hope that that would come out then. That is one chance for it to come out. There is a second chance for it to come out actually at the trial itself. By having a proper disciplined process pre-trial, as Ian says, is part of the planning to ensure that the trial runs smoothly, effectively and comes to a decision that is just. It is important to have this pre-trial process properly disciplined, we believe, in place.
(Mr Blair) Can I just add a particular piece around that that we want to emphasise, which is the expert witness, the defence disclose of the number of other expert witnesses they went to before they found one that agreed with their point of view. I do think that is significant.
(Mr Blair) Exactly, yes.
(Mr Blair) We go back to this whole issue, do we not.
(Mr Blair) What are the rules? It seems to me that if the rules are that a previous prosecution witness, an expert, would be disclosable; must be disclosable. It seems to be logical that if the defence has gone to six people before they can find one that says no, that was caused by this kind of weapon and the other five agree with the prosecution, then that seems to me to be a pretty significant piece of information.
(Mr Burbeck) Can I just expand on that. The main argument is the disclosure of confidential information between the defendant and the expert in some areas. We believe that disclose of the details of the expert does not necessarily mean disclosure of the confidential communication between the two. But if the prosecution have access to the details of the expert we can, for example, establish just how expert they are compared to the other experts. I have a case in mind, a murder, where the sixth expert - whose evidence was admitted - was significantly the least well qualified of the experts who was approached. We only found out by chance that the other five were much better qualified, much more experienced in these sorts of consideration.
(Mr Burbeck) How do you explain to a jury that an expert of this level of qualification is significantly more able than an expert of this level of qualification? Indeed, in this particular case the first the prosecution knew about it was when the expert turned up at the trial.
(Mr Burbeck) No.
(Mr Burbeck) No.
(Mr Burbeck) No.
(Mr Blair) They are obliged to tell us who their expert is, but they are not obliged to give us the other five they approached first.
(Mr Burbeck) And even then they can still produce witnesses at very short notice, often too short a notice for us to be able to do the necessary checks. We make applications for remands while we make extra enquiries, which is what we did in this particular case. We are trying to say that that disjoints the trial process: a witness appears, we ask for a recess while check the witness out, check the background of the witness out, then the trial can recommence. Proper disclosure minimises the number of occasions on which that will happen. We accept there will always be the exceptional case where, as the trial unfolds, the defence say, "If that is what has come out, we want to call the actual witness". We say that should be very much the exception rather than the rule, and it is the rule at the present, particularly in a magistrates' court.
(Mr Burbeck) We should consider the evidence in the whole. That is the police case. We do not want relevant evidence excluded. The juries or the bench should consider evidence in the whole.
(Mr Burbeck) There is no means of requiring the defence to conform at present.
(Mr Blair) There are no sanctions. It is certainly fair to state, Chairman, that there are a number of crown court areas where defence disclosure is actually quite effective because it is well managed by a particular judge or a set of judges. But in many cases that is not the case. What we are looking for is to rationalise this so that a rational person looking at it would say that this is the best evidence and we now know what the issues at stake are.
(Mr Blair) By making a system where the trial cannot proceed until the following events have taken place. It is as straight forward as that.
(Mr Blair) No.
(Mr Burbeck) No, this is about the judicial pre-trial scrutiny and the production of these documents. We say that if that process is followed we believe that there will be similar conditions for the prosecution and defence witnesses.
(Mr Blair) I began by making the comment that a lot of this was about culture. In the end it is saying to the judiciary that their first job is case management and they need that skill. The way the White Paper sets it out, by saying that you have to get to this point before you can get to that point, that has a huge logic. Some of the defence disclosures now are as little as we can test the prosecution evidence; it is not very helpful as an approach. This is, I think, a much better system.
(Mr Blair) Yes, it is.
(Mr Blair) It could happen.
(Mr Blair) We cannot sit here and say that none of this has any danger. We all know that whatever you do somebody somewhere will find a way of making it worse and less effective. But there are many ways in which we can stop that happening. That would be a much more serious matter than just mucking about with some witness. You have an interference through the courts of justice, criminal possibilities.
(Mr Blair) I obviously have no knowledge of that case. All I can say is that I hope it is a pretty rare event and I also think you have to be careful not to legislate round that point of view.
(Mr Blair) That is a completely different set of rules.
(Mr Blair) If, for instance, what you have just described, could be shown to be a deliberate act, then it is a criminal offence that has just occurred.
(Mr Burbeck) I would not say they are incapacitated.
(Mr Burbeck) They are capable of being discredited if that becomes an issue under cross-examination. It may not be. What we are asking for is for the same conditions for the defence witnesses as the prosecution witnesses. Are you saying that if that witness was the prosecution witness and, say, someone on the defence side had engineered it for the prosecution witness to have an allegation of fiddling expenses made against them before the trial, that is wrong? We are saying it is equally wrong. At the moment we are not suggesting that is a significant problem in the criminal justice system for prosecution witnesses. If that is the situation, why should it be any different for defence witnesses in the future? All we want is the same, nothing more. At the moment the conditions are not the same. The prosecution witnesses can be cross-examined to a significant extent about their background because we have disclosed to the defence everything about their background. We do not know about who the defence witnesses are, particularly in the magistrates' courts. We do not know who they are and therefore they cannot be cross-examined in the same way as the prosecution witnesses were.
(Mr Blair) It is a major problem in terms of how much it costs to actually protect a jury. In the last two years it has cost the Metropolitan Police £9 million to protect juries. One of the oddities about jury protection is that you do not know if it works. You have no idea whether this actual system works, and it can only happen on the say so of the court judge who has obviously had to have evidence provided to him to that end. I can assure you that the Metropolitan Police is immensely reluctant to carry this through, but it does happen and it is a concern.
(Mr Blair) No, but I can certainly find that out. I do not know how many trials. Most of the time there will be a protected jury going on somewhere in London, usually at the Bailey.
(Mr Burbeck) I do not have the figures on cost, but it is an increasing problem. In all the big metropolitan areas they have a proportionate figure to the Metropolitan Police. Indeed, even in the more provincial areas - such as my force area - I have had to carry out such a service.
(Mr Blair) I would say it is a growing problem, but it is not growing very fast. In a sense, we have had this problem for a number of years. It is usually connected with organised crime level because they have, not only if you like, the willingness to tamper with a jury or attempt to interfere with a juror, but also the ability to do it.
(Mr Blair) They are all different. I have a slight difficulty here about how I would describe the protection system, but let me put it this way: it is very difficult to protect those whose opinions might influence the juror. All you can do is protect the juror. He or she and their family are not as protected.
(Mr Blair) It is both. Both of those options arise.
(Mr Blair) We would provide, in a closed hearing with the judge, the information that we had.
(Mr Blair) There are two circumstances. I think the police in general have always been slightly puzzled about the complex fraud case, not just because of the complexity of what goes on but also the length. One thing I want to do before I close, if I may, is to talk about juries in general and jury service. As it currently runs people have to be prepared to sit on a big fraud trial for months. You are only going to be drawing from a small group of people who could possibly do that. I also think - and this comes back to something that Mrs Dean was talking about - that a defendant may wishe trial by judge along. Again, to go back to these child abuse cases which are very difficult cases for the defendants, I think there is something there around saying that a defendant should be able to elect a trial by judge alone.
(Mr Blair) I think the White Paper sets out a very clear set of safeguards that can prevent the kind of abuse you are describing: the idea that we did not get him this time, so let us do it again. Let me put it another way, a failure to do this means that scientific advances have no effect. If scientific evidence becomes available that was not available at the time of the first trial, then is it really rational that we should not put that back in front of another court. The fact is that it has to be that the evidence was not reasonably available. It cannot be about police incompetence in general. It has to be the fact that the witness was not known about and could not reasonably have been known about. It has to be about scientific evidence in a different way. You then have to get it through the DPP himself. We have then got to go to the appeal court to quash the acquittal and the appeal court can only do it if they believe there is compelling new evidence. That is quite a long way on and the idea that some disgruntled detective would start immediately plotting to bring this back, is unrealistic, I think. I think we are strongly in favour of that possibility. I think it would be pretty rare.
(Mr Blair) Absolutely, the court of appeal.
(Mr Blair) Yes.
(Mr Blair) Exactly. But the fact that something has existed for five or six hundred years does not mean that in new circumstances it cannot be examined again. It also has to be a significant and grave case, so we are talking about a pretty small number. But the fact that somebody out there knows that they committed a grave case can think they are completely free forever seems to me to be a miscarriage of justice as well.
(Mr Blair) I thought, when I saw the different submissions, that that was the weakest argument that I have come across really.
(Mr Blair) Yes, but even the devil's advocate would find that one particularly weak in that sense. It is almost inconceivable to think of anybody looking at the hurdles over which they would have to go, why not just get it right the first time?
(Mr Blair) The trouble is we use terms here that are very difficult. Is it my opinion that an acquittal was perverse?
(Mr Blair) Yes, I think that has happened. But I am much more concerned about a case where it was not actually a perverse jury. On the evidence they had available to them this person was rightly acquitted. My issue is that we now have this piece of evidence which could not have been available at the time, but which is compelling and had the first jury heard that then that might have been a different process.
(Mr Burbeck) I am very much with Ian on that second tier of offences. There are a significant number of offences where we know, for all sorts of reasons, information which cannot be converted into evidence. We know that the limited evidence that was put before a jury ended up with them making the right decision on that evidence but if more evidence was available they would have made a different decision. If the rules change, if the forensic position changes in the future, in a very very few serious cases we could see a situation where there would be a benefit to society for the DPP, the court of appeal and indeed the subsequent trial jury to reconsider that case. We think on those few cases justice is more important than finality at the first trial.
(Mr Blair) I am not aware, but I am aware of that circumstance in other cases, yes.
(Mr Blair) I think it must. All we have to do here is to think around cases of which we have known where in recent years we have reinvestigated cases from 20, 30 years ago. I am thinking of one in Surrey, the murder of a school boy, a man was convicted and sentenced to life imprisonment for the murder in the late 60's or early 70's, that was DNA; DNA produced that answer, nothing else did. If he had been already tried and convicted of that murder and the DNA had become available, we could have done nothing. It was compelling enough in that case for the jury to convict. That is what we need to be looking at. But we need to understand it is a very small number of cases with tremendous numbers of safeguards. I think the public would expect us to look at a new era, certainly of science, and say that it is wrong to hold on to this law. I think I have seen somewhere - although I am not sure where I have seen it - it can only be done once. We do not have a situation where we are going for the fifth time to do this. I think that would also be an important safeguard.
(Mr Blair) Not usually, but in that case they obviously did.
(Mr Blair) I have responsibility for that case. It is currently with the Director so I think we would be unwise to pursue that particular argument. Perhaps my colleague can help.
(Mr Burbeck) I do not think that is the prime reason. I think the prime reason is because we have seen how effective DNA is in helping us to solve either the intractable or the very old long standing cases. They are usually cases of murder or rape or other serious sexual assaults.
(Mr Burbeck) Two things there, the first is that we cannot afford to keep re-investigating crime. That is not the way we are going to reduce criminality. That is not the way we are going to make this country a safe place to be. We do want to get it right first time; we will be striving to get it right first time. We are talking here about the exception. We are talking about grave offences only. We are talking about where there is a substantial change in the evidence regime. We then have to argue it through the Director of Public Prosecutions personally, we then have to argue it through the court of appeal. No investigator is going to go into an investigation with the intention of thinking "Oh well, it doesn't matter if I so a sloppy job now; at some stage in the future - it may be 10, 15, 20 years' time - it is OK because one of my successors" - because it will not be the individual concerned - "can spend a lot of time re-investigating this and arguing it through all these different decision making tiers." That is not the way the police service operates and is not the way in which the whole thrust of the police approach to the criminal justice change is going to be.
(Mr Burbeck) The test is that it has to be a significant change in the evidence regime. It has to be significant. So where do you search for this significant change. We believe it provides the potential for when the next generation of change equivalent to DNA comes; we do not know what it will be, but we have the opportunity to take advantage of that dramatic change.
(Mr Burbeck) Is the court of appeal ever easily persuaded. The police view is that they are one of the bastions of integrity in the criminal justice system. They have a reputation for fairness and if they are in the process then I would hope that the public would be reassured that all this decision making will be done in the most objective and thorough and independent way.
(Mr Burbeck) And that is an important part. It is the Crown Prosecution Service who would take it forward, not the police. The police can spend all their time investigating, but if the Crown Prosecution Service cannot persuade the Director, it is a no-hoper from the first stage.
(Mr Blair) There is one equivalent to this, which is the Criminal Cases Review Body. My force has been involved in some of those investigations into what were alleged miscarriages of justice - and sometimes were miscarriages of justice - and we have found people innocent long after their convictions. I think this is just the other side. We know in the Hanratty case that DNA was enormously significant in the decision as to whether that case was properly brought or not. I think this is just the equivalent on the other side.
(Mr Blair) No, I do not think there are going to be many, but there will be some.
(Mr Burbeck) I have just been nudged. One of the reasons for the check and balance against an incompetent investigation is that before you have a retrial the evidence must have been unavailable at the time of the original trial. If it was available and the police were incompetent, did not find it, then it is excluded. The evidence must have been unavailable at the time of trial; it must be new.
(Mr Blair) Yes, it was merely reflecting in the White Paper on the emphasis that was placed on this in the executive summary and then when you get into the heart of the White Paper it seems to be an awful lot less.
(Mr Blair) I would like to see a situation in which people available for jury service were obliged to do it in the sense that if the jury bailiff writes out and says "You are required at this crown court for this two week period" you are entitled to write back and say "I cannot do that", in which case he will say "If you cannot do that, give us two weeks inside the next 18 months when you can do it". And that is it. That is the piece to me. If we do not take it down that line where you can refuse once or twice or whatever it is, but you have to give a period when you will be available, then we are never going to get a representative jury. Certainly from my perspective, that is a much more important issue than the slightly curious point about whether lawyers or judges should be on juries. It is much more important to get a genuine cross-section of people.
(Mr Blair) I think that has now actually been cleared in that sense. There has been some guidance given. There was a judicial review. It has been accepted that the police have the right to require the person to appear on the doorstep.
(Mr Blair) The debate goes on. I think we have now reached a stage where most people have their own personal views. My personal view is that we ought to be using that evidence in court, but I know there are colleagues in the country who have an opposite view.
(Mr Blair) The case against remains, as I understand it, the ability of the other side to learn the surveillance methods that are used. Secondly, it opens up a wedge of disclosure which some colleagues would find very uncomfortable because it will lead relatively quickly through to what was the evidence you put before the commissioners to get the interception. That then starts to head towards who was the informant who gave you this information. I think there are some difficulties, but again I think we have to look across different parts of common law jurisdictions and say that they do not seem to find it so difficult there. But I would not put that forward as a Metropolitan Police view, because I think it is such a divided question that it needs a lot of debate.
(Mr Blair) I was lost there; I thought you were meaning the police station cell.
(Mr Blair) I thought that was a slightly dying activity.
(Mr Blair) I do not know that I could comment on it. If that evidence comes to light through prison sources then we would be obliged to use it. It would be very odd if we did not use it.
(Mr Blair) There have been one or two.
(Mr Blair) I do not think it is fair to see this as a trawl. What will have happened in that case is that one person will have come forward. At that point the investigators are then going to ask if there is any corroboration of this. They will then start that process. But the idea that we send people to prison half-charged with something and see if we can find somebody to grass them up in jail is, I do not think, accurate.
(Mr Blair) I am not saying it from that point. It starts with somebody coming forward usually.
(Mr Blair) I think this is arguing from the particular to the general. It is not a very common event.
(Mr Burbeck) I am with Ian on this. I am not aware that it is a growth industry. What I am conscious of is that in order to get all the evidence that we can put before a jury on occasions, if we have become aware that conversations have taken place and the fellow prisoner is willing to give evidence, then they have been called to give evidence. But surely that is part of presenting all the evidence to the jury, which is the debate we are having. The police believe the jury should hear all the evidence. There is certainly no service strategy, no service direction, no service guidance to SOA's to go into prison to find these people.
(Mr Burbeck) I suspect those few cases are the ones that make the headlines, but they are very much the exceptions.
(Mr Burbeck) I suppose there is just the one, and that is that ACPO believe that the criminal justice system was developed to deal with reasonable people. There have been all sorts of changes, but primarily it handles reasonable people well. The problem we now face as a community is that there are three significant changes in criminality that the criminal justice system does not address. We want changes so that it can address international crime, particularly in the trafficking of human beings and drugs. Organised crime, which has a large amount of money and therefore can buy expertise and time and is willing to bend every rule in order to evade justice. The third is the one we have already talked about, the local bully in the community who is frightened of no-one, including the criminal justice system, and makes sure everyone is frightened of them. We want to ensure that all the changes that are brought in within this particular piece of legislation are effective against all those three different tiers of criminality.
(Mr Burbeck) It is to do with the international evidence. I have already talked about the rules of evidence and the fact that there is no integration with Europe, for example. We have no integration with the rules of evidence in Europe. Another aspect is that, if we take human trafficking for example, we have no means of giving people who want to give evidence in those cases immunity from prosecution if they are involved in subsequent criminality. Something like a grand jury system. We have no facility to offer that sort of immunity at present.
(Mr Burbeck) This Bill puts some of those steps in place. I am just asking you, in all your considerations, that you bear in mind these three levels of criminality. The danger otherwise is that the proposals in the White Paper and the Bill get diluted by those who wish not to see change and it gets pulled back to dealing with this reasonable criminal. We want to be assured that it also deals, in addition, with the unreasonable criminal.
(Mr Blair) My point was really to emphasise what I think is the most important issue that I raised in front of you, which is the issue around drugs. I noticed how you responded to the issue of whether the treatment was available. That is an important point. I would not want to see the legislation delayed in its consideration by the House about that point. If we had the legislation we would, I hope, with cross-government support be able to deliver the resources to the areas of most significant strain. There is no question that that figure from Hackney, that level of opiate and morphine abuse among criminals is a problem which we have to address. I would really want to be saying that if there is any part of the legislation that is around that, that we say of course we have to have the resources available to offer that piece, but we must press on with that legislation.
(Mr Blair) Absolutely.
Chairman: Thank you gentlemen. You have been extremely helpful. You have given us plenty to think about. I look forward to seeing you again some time in the future. The session is closed.