Examination of Witnesses (Questions 440
- 452)
TUESDAY 26 NOVEMBER 2002
LORD FALCONER
OF THOROTON,
QC, MS CECILIA
FRENCH AND
MR IAN
CHISHOLM
440. Yes.
(Lord Falconer of Thoroton) If you give anonymity
then you are sending a signal that this is a different sort of
crime to other crimes, so there is a very considerable risk in
giving anonymity. Currently the Home Secretary is of the view
that you should not distinguish defendants in sex crime cases
in that way but he has also made it clear that he is willing to
listen to arguments in relation to that to see whether or not
there are circumstances that could distinguish them. At the moment
the Home Secretary's view is that one should not distinguish these
crimes from other crimes, and therefore there should not be anonymity
for defendants.
441. We already concede that in relation to
the victims. They are anonymous, are they not?
(Lord Falconer of Thoroton) They are anonymous in
relation to sex crime.
442. So we have already established it is a
different category of case.
(Lord Falconer of Thoroton) It is a different category
of case for the victim and the reasoning behind giving the victim
anonymity is that it encourages victims to come forward in circumstances
where they might be reluctant to do so and this is an encouragement
for them to do so. The same argument would not apply. The argument
in relation to the defendant would be this is an area where there
is a possibility of mistakes being made and it must be on the
hypothesis that that risk is greater in these cases than other
cases, therefore we will permit the defendant to be anonymous
until conviction, if that occurs. That does send out a signal
that these cases are different from other cases which would be
a signal both the public and the jury would see and therefore
we are currently against the proposal. As I say, there should
be a debate about this.
443. One of the arguments is the ruinous effect
such charges, whether upheld or not, have on people's lives. There
is a very high number of cases where the case collapses either
before it reaches court or during the course of proceedings.
(Lord Falconer of Thoroton) There are a significant
number of crimes where to be charged with it would have a ruinous
effect, separately from sex crimes. There are benefits also where
the case does collapse, in the sense that quite frequently the
material that is then reported quite legitimately does indicate,
whether it be a sex crime or another crime, that a mistake was
made. So again the ruination of the defendant applies to other
cases apart from sex crimes.
444. One frequently comes across teachers, social
workers and the like—and one can understand the arguments
here—who years after being acquitted or perhaps in some
cases never being charged are still suspended from their jobs
and in fact are never going to work again. We came across quite
a few in relation to the historic child abuse cases.
(Lord Falconer of Thoroton) In that context overall
the mere making of the allegation quite separately from the charge
is what causes the damage, but the question in relation to criminal
charges is whether or not you make an exception in relation to
sex cases and that is, as it were, raising a question mark over
the prosecution in a way that you do not in other charges. That
is why we think there should not be anonymity at the moment.
445. Let me try another one on you—prohibiting
admission of unrecorded cell confessions, to which we referred
a minute ago.
(Lord Falconer of Thoroton) Everybody is aware of
the dangers of cell confessions. The way it is dealt with at the
moment is that the judge decides whether or not it goes in. I
think that is probably the right place to leave it, is it not,
on the basis that judges have been astute since the Police Criminal
Evidence Act to exclude confession evidence where there is a real
danger attached to it. There may be cases where it is appropriate
and I can think of cases recently where the evidence has been
allowed in.
446. And the case has collapsed spectacularly.
You were going to say ones where—
(Lord Falconer of Thoroton) I was going to avoid saying
anything at that point! I thought it unwise to step into that.
447. There have been some spectacular collapses,
a long parade of criminals through the witness box all on the
understanding that their parole will come up a bit earlier than
it otherwise might have done or some charges will be overlooked
in future.
(Lord Falconer of Thoroton) This is the point you
made earlier on, which is it proceeds on the basis that having
been interrogated the defendant then begins to confess to somebody
else. So the dangers in relation to it are significant and generally
recognised by the judges. If a cell confession is let in when
it should not have been, there can be an appeal, which I suspect
is some of the cases to which you are referring.
(Mr Chisholm) The Law Commission did consider this
issue as part of their review of hearsay and, interestingly, concluded
it should remain subject to the discretions and cases in common
law. The consultation responses to the Law Commission report were
broadly of that view as well.
448. We have had serial criminals walking down
the steps of the court and saying within the hearing, "Good
heavens, they believed me, I never thought they would." I
can think of one major case where exactly that happened.
(Lord Falconer of Thoroton) The major criminal being
the person to whom the confession was made or being the defendant
in the example you have given?
Chairman: No, the criminal being the
person to whom the confession was made, often several of them
these days since one cell confession alone is sometimes not sufficient
and is a lot less credible. It is quite clear, is it not, that
in some cases there has been deliberate pressure to discover cell
confessions? You make sure they are remanded, for example, with
someone who has a record of being a police informer. The police
have a chat with the prison authorities and they arrange to have
such a person in their cell. That is what happens, is it not?
Bob Russell: Surely not.
Chairman
449. And it needs discouraging, does it not?
That is my point and it is not discouraged by present arrangements.
(Lord Falconer of Thoroton) If and insofar as cell
confessions have been actively sought, it is not a good idea at
all. As far as whether they should be admitted or not, broadly
the right position has been reached that the judge can decide
whether or not they go in.
450. Restrictions on pre-trial publicity of
an investigation. This is something submitted to us by a chap
called Rodney Warren of the Law Society. I will just read the
point he makes: "I think there needs to be some rule and
investigation about the point at which proper and fair reporting
can start. There have been some recent high profile cases where
it is improbable that an adequate investigation can ever be maintained
in the case, let alone a trial following . . . I am talking about
comment or press releases that occur after an individual is charged
which are designed to serve the need for the press' thirst for
information rather than answering the course of justice."
(Lord Falconer of Thoroton) The point at which the
contempt laws kick in currently is after charge. The law says
that if you publish anything that might prejudice a fair trial
after charge then the law officers can bring proceedings against
you for contempt of court. I do not think the law needs to be
changed. Separately from that, one has got to recognise that some
crimes when they are committed attract so much publicity for obvious
reasons that one has got to recognise those crimes will be reported
and probably should be reported because the idea of the restrictions
on the reporting of the crime being too great is not in the public
interest. Going back to the position of juries, jurors, by and
large, are good at sifting evidence and coming to conclusions
and looking at the thing from the point of view of what happens
in court. As far as the law is concerned post charge, I do not
think there is much change that one could effect other than to
say, as the current law does, if you do publish material that
might prejudice a fair trial after charge then you are liable
to contempt. If you set the timing before charge you have got
some uncertainties and you have also then in some cases cut out
the benefits which are considerable, not in these high profile
cases but cases where investigations go on to seek to draw to
the public attention criminal activity that would not otherwise
be discovered. The balance has got to be struck between ensuring
a fair trial for the defendant and but also permitting the press
to do their job both in relation to reporting crime and in relation
to investigation.
451. Thank you very much, Lord Falconer. Are
there any points that you would like to make in connection with
the Bill that we have not given you an opportunity to make?
(Lord Falconer of Thoroton) Simply this: there are
significant things in the Bill like charging by the CPS, like
the process by which cases get prepared, like the allocation of
cases that we have not talked about and that nobody has really
talked about in the course of the Bill's introduction and what
has happened subsequently. Just to make the point the Bill intends
to make the system work better and very many of the things which
have not attracted controversy, like the things I indicated, have
got widespread support because there is a widespread feeling that
the system needs reform to make it work better, not to undermine
the fundamental principles of the independence of the judiciary,
the presumption of innocence and jury trial being the norm in
serious cases, but to make it work better in a way that victims,
witnesses, defendants and communities as a whole have some faith
that it will actually deliver justice, ie provide adequate security
in relation to those people whom the criminal justice system does
arrest, because I think people recognise that crime will never
be eradicated but if they see a defendant arrested, charged and
then never being tried because the time it takes is so long, and
them threatening and intimidating witnesses on the way there,
what faith will they have that the state will protect them when
they are entitled to protection?
452. I think we are all signed up to making
the system more victim and witness-friendly. Inevitably this morning
we have concentrated on the most controversial parts of the Bill.
Can I thank you very much for coming. You have been extremely
helpful and we look forward to hearing from you on one or two
outstanding points.
(Lord Falconer of Thoroton) If there are any more
material facts that you want, do not hesitate to contact my officials.
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