Examination of Witnesses (Questions 80
- 99)
TUESDAY 5 NOVEMBER 2002
MR IAN
BLAIR AND
MR JOHN
BURBECK
80. Is the proper way of dealing with that not
for the prosecution to put up its own experts and for the credentials
of the defence expert to be probed at the time and allow the jury
to choose between the two sets.
(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.
81. So you had no notice of who their expert
was going to be?
(Mr Burbeck) No.
82. Surely, under the present arrangements,
they are obliged to tell you really, are they not?
(Mr Burbeck) No.
83. In advance.
(Mr Burbeck) No.
84. None at all? Not until he turns up in court?
(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
we 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.
85. Yes, but we can all think of cases, can
we not, where the apparently least qualified expert would be discredited
at trial and some years down the line turned out to be right.
Think of Dr Black and the Birmingham pub bombing case, for example,
who was comprehensively destroyed by the judge, never mind the
prosecution, and all those years later he turned out to be right.
We should, on the whole, stick to comparing the quality of their
evidence, should we not, rather than destroying them on the basis
of their qualifications.
(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.
86. Have the provisions in the 1996 Criminal
Procedures in Investigation Act helped you? The police lobbied
very hard for that; I thought that was supposed to solve the problems
of disclosure.
(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.
87. If the present Act is not enforceable, how
would you enforce what you are now proposing?
(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.
88. And that does not happen under the 1996
Act?
(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.
89. The reason Auld thought about this and then
concluded it was not a good idea was because he said it would
be difficult to enforce. Do you disagree with him?
(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.
90. Going back to this objection from the Bar
Council that once you know who the defence witnesses are the temptation
is to concentrate on discrediting them personally rather than
discrediting their evidence. That is a danger, is it not?
(Mr Blair) Yes, it is.
91. It does happen, does it not?
(Mr Blair) It could happen.
92. It does 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.
93. I was not thinking of that necessarily.
As recently as two weeks ago I had in my office a constituent
who was charged with child abuse and he has one witness who will
speak up for him, the head of the school where he taught, whose
character was unblemished. The next thing he knows, she is suddenly
charged with some sort of expenses fiddle. As soon as his case
is out of the way, her case comes to court and is chucked out
instantly by the judge. It is too late by that time. It took so
long that he had already served his sentence before her case was
dealt with. This happens, does it not? Now, not five or ten years
ago?
(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.
94. It is the most natural thing in the world—it
happens in politics—if someone says—
(Mr Blair) That is a completely different set of rules.
95. You have to go for the man and not the ball,
so to speak. Does the same danger not apply in this case, with
rather more serious consequences.
(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.
96. But it could not be shown to be a deliberate
act. It is all very murky, is it not? It is just that this crucial
defence witness is incapacitated for the time it takes to get
a conviction in the other case.
(Mr Burbeck) I would not say they are incapacitated.
97. Discredited.
(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 are.
Bob Russell
98. Mr Blair, are instances of jury tampering
quite rare, or is this a major problem?
(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.
99. You mentioned £9 million in London
over the last two years. Are you able to say how many trials that
has involved?
(Mr Blair) No, but I can certainly find that out[1].
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.
1 See Ev 18. Back
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