Examination of Witnesses (Questions 40
- 59)
TUESDAY 5 NOVEMBER 2002
MR IAN
BLAIR AND
MR JOHN
BURBECK
Mr Cameron
40. You have some good examples, but the point
remains that it must not be—we would all agree, I am sure—an
excuse for sloppiness. Just moving to this point about transferring
responsibility for charging to the CPS, I think most people would
agree that the good thing about setting up the CPS was that you
had an independent prosecutor. The bad thing, from many people's
perspective was that you took the police out of that process of
actually feeling they really had an on-going role in preparing
the case and in solving the crime and getting to the end of the
road. Is this not, in a way, going to make that worse? You are
taking the police out of yet another quite important stage of
the process.
(Mr Burbeck) In fact, the pilot sites 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 sites in a way that most people could
not have anticipated.
41. It will actually make the police and the
CPS work together better, because that is one of the criticisms
at the moment.
(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.
42. Are there certain categories of offences
where you would like to retain responsibility for charging within
the police?
(Mr Blair) There is going to be a whole issue around
routine cases, shoplifting and so on.
43. If it is obvious.
(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.
44. Those answers address the point about whether
it will lead to deteriorating morale in the police. You are saying
that from the pilot studies absolutely not; they are going to
be working together. What about the worries about delays and overcrowding
in police cells. We already have 500 prisoners in police cells
at the moment. You have your man, you are waiting for the CPS
to turn up but they are busy because they are under resourced,
so you have people hanging around in the cells. There is a bureaucracy
element to it, is there not?
(Mr Burbeck) You are right. In the pilot sites there
has been a longer time between the start of the investigation
and charge when the 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 the
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.
45. Is this not then introducing new delays?
I do not know whether you still live in Oxfordshire, but our postal
service is dreadful, particularly in my constituency, so we could
have the idea of people saying "The charge never arrived
so I missed my court appearance". Are we not aiming through
this whole paper to try to get the charge right, to get it delivered
early, to shorten delays in the justice system? Yet what you are
talking about is effectively stringing out the police bail, stringing
out the charging process, the charge is then delivered in the
post. Is that not going to make things longer and create more
delays?
(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.
46. Is the evidence really there that it is
wrong charges that lead to discontinued prosecutions? Is not really
that actually the evidence is not there and the CPS look at it
and say, "Sorry, there is no evidence"; it is not that
the charge is wrong.
(Mr Burbeck) No, the evidence from this report which
I have here shows that—
47. Which report is 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.
48. Surely we must all support that. The main
thing we want, surely, is more cases going to trial. That is the
problem. What we are talking about here is a tiny proportion of
the crimes that ever get committed. If we take a hundred crimes
committed, there are very few detected, even fewer get to the
charging stage, even fewer get to court. The real aim here surely
is to get more cases successfully to court.
(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?
Mrs Dean
49. If past criminal records are more readily
accessible to the jury, the prosecution will have more chance
of convicting defendants with previous records. Will this not
put pressure on the police to round up the "usual suspects"?
(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.
50. Do you then support the Law Commission where
they would require that previous convictions must have substantial
value in the determination of the case?
(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.
51. So you would keep it very simple?
(Mr Blair) Very simple.
52. Do you accept there might be grounds for
creating special safeguards against the admission of prejudicial
evidence in some cases, for example cases of historical child
abuse? You may have read the Committee's recent report.
(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 investigations. 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.
53. I think we felt there were particular concerns
with historic child abuse in the collection of evidence, and it
may be that there is not the quantity of evidence proving that
the abuse actually happened in the first place. So there are particular
problems in the historic child abuse. You want to see all evidence
that is relevant to the case brought forward. Is there any relevant
evidence that should be excluded, that you think might be prejudicial
to the person who has been charged? Can you think of any examples
where evidence should be excluded?
(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
from our own. There is nothing in the current proposals which
moves towards integrating the different rules of evidence. Ours
are more exclusive than most. The hearsay evidence issue is one
example. 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.
Chairman
54. Taking that simple example, is it not desirable
to have the person who actually handled the evidence in the witness
box rather than his superior who says that everything is fine.
There is a long history of superiors saying that everything is
fine when the man on the ground floor knows it is not.
(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.
55. Yes, but what is the problem about getting
the person who actually found the piece of evidence in the witness
box so that we can test his or her veracity instead of their superior
who, as you say, has no first hand knowledge?
(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—that we have identified: that the 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.
56. Just going back to another simple example
you gave, someone who has five convictions for shop lifting, presumably
if they have carried out a sixth offence there might be evidence
on a store video, there might be the store detective who saw them,
the buzzer may have sounded as they tried to walk out of the shop
with it. Why do you need to disclose that they have five previous
convictions?
(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
the facts. That is what the country is doing. We are saying that
if they are sufficiently skilled and trusted to determine the
facts, then they should be sufficiently skilled to determine 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.
57. Nobody would accuse them necessarily of
being ignorant. It is just that, with the best will in the world,
once you know someone has got a past track record in this case,
you can come to the facts with a prejudice in the back of your
mind. Mr Blair has just conceded that on the case of child abuse.
Why should it not apply to just about every other category of
offence?
(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.
58. I think that Mr Blair will concede that
in the case of child sex abuse or something it did.
(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.
59. You said a moment ago that offences that
were disclosable would have to be current or recent. How would
you define those?
(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.
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