APPENDIX 8
Memorandum submitted by the Law Society
(CJSB 15)
This paper summarises the Law Society's main
concerns about the Criminal Justice White Paper. It draws extensively
on the experience of the Society's Criminal Law Committee, which
is comprised of defence practitioners, senior prosecutors, a District
Judge, legal advisers (previously known as Justices' Clerks) and
an academic lawyer. A number of the Committee sit as Recorders.
In this paper, we comment briefly on just a
few selected issues. There are other matters we consider equally
important, which we have not commented on, such as juries in serious
fraud cases, as our position is well rehearsed elsewhere.
Although we welcome the extent to which the
White Paper reflects some movement from the earlier indications
of the Government's likely position, the White Paper still suffers
from underlying philosophical flaws. The rhetoric is aspirational
but the use of such phrases as "search for the truth"
are cosmetic. The Law Society has long had concerns over the increasing
trend to graft inquisitorial elements onto our existing adversarial
system without the essential safeguards required in an inquisitorial
system such as judicial oversight of police investigations. Indeed,
the White Paper explicitly refers to adopting a civil approach
to reform of disclosure and admissibility in criminal proceedings.
The question of whether we should adopt an inquisitorial system
in place of an adversarial system has not been addressed by the
White Paper. The Society is concerned that an uncomfortable hybrid
may be developing. If an inquisitorial model is to be seriously
considered, there must be a full examination of the different
models and a clear and honest debate on the preferred model and
the reasons for that choice.
The Law Society also regrets lost opportunities
to make effective reform of practical matters. One example is
current media frenzy surrounding some cases, which we consider
to be a real danger to the integrity of the criminal justice system.
Some trials take place under a media spotlight of misinformed,
inaccurate and biased reporting so that the ability of the system
to deliver justice is undermined. Payments to witnesses and trial
by media has a debilitating effect on confidence in the criminal
justice system. Trial by media now means that there are those
whose lives are effectively ruined despite an acquittal. As it
seems unlikely that the proposals to regulate payment to witnesses
will be implemented and given the continued unrestrained reporting
of cases pre-trial, the Society now reluctantly concludes that
there should be a ban on reporting of the personal details of
all parties in criminal proceedings unless and until there is
a conviction.
Another lost opportunity is in the area of court
security. Lord Justice Auld recommended a designated court security
service. This is not touched on by the White Paper. Civil and
criminal courts are effectively unprotected. Those security staff
present are not employed to intervene in violent incidents involving
witnesses, members of the public, court staff, the judiciary or
advocates. The administration of justice must take place in a
safe and respected environment. CCTVs that can assist investigations
after the event are not a solution.
BAIL
The Law Society believes that depriving a person
of their liberty, or constraining their freedom can never be taken
lightly.
The White Paper proposes to extend police powers
so that they can impose bail conditions on persons who are suspects,
but against whom there is insufficient evidence to charge. The
Law Society accepts that in the CPS charging pilots, the pre-charge
investigation period took longer, and that accordingly—if
the cases being dealt with by the pilot is to be extended to include
the more serious and complex cases—then pre-charge bail
is a logical step, in the pilot areas.
There is, however, a real risk that the power
will be overused and that conditional pre-charge bail will become
the norm rather than the exception. Rights of appeal against bail
conditions with public funding for representation in such an appeal
should be incorporated in the primary legislation to ensure that
the power is not misused. Restricting the freedom of movement
of persons not yet before the courts must never become a matter
of routine.
PREVIOUS CONVICTIONS
The Law Society opposes the Government's proposals
for allowing information about previous misconduct to be given
during trials. We consider that most of the examples in the White
Paper are adequately catered for by the existing rules on similar
fact evidence. It is therefore misleading to suggest that the
legislation requires amending, rather than the current practice
or procedure.
The Law Commission recently examined the issues
thoroughly, before publishing proposed draft legislation, which
formalised the procedures for admissibility of previous misconduct,
and removed the "tit for tat" element that is a feature
of the current regime. We accept the principle of the Law Commission's
proposals. The Government's draft clauses go beyond the Commission's
proposals. We do not consider that the justification for this
has been adequately made out.
There is a real risk that if the Government's
proposals are implemented, many defendants will be convicted because
of their history, and not because there is evidence that they
committed the particular offence for which they are charged. Such
an outcome would be counter to the Government's wish to rehabilitate
offenders, quite apart from being wholly unjust. We believe the
legislation will result in less thorough investigations and more
miscarriages of justice.
If the wrong person is convicted then this is
a miscarriage for the wrongly convicted, for the victim and for
society. Confidence in the criminal justice system requires confidence
that convictions are reliable.
JURIES IN
YOUTH CASES
We reject the proposal to deny young defendants
the same right to a jury trial in the most serious cases, which
is afforded to an adult defendant.
In our response to the Criminal Courts Review,
we suggested that there was no reason why a judge and jury could
not sit in the youth court. The culture of the youth court already
incorporates the Lord Chief Justice's recommendations to make
the process less intimidating for child defendants in ways that
the Crown Court seems as yet unable to do.
Given our view that for grave crimes a youth
should still have the right to jury trial and that the youth court
should incorporate a jury, we see no reason why the adult co-defendant
cannot follow the youth, rather than the youth following the adult
into the Crown Court.
JURY COMPOSITION
The proposal to increase the pool of potential
jurors and to enforce rigorously the requirements to attend are
welcome, particularly in the context of lengthy and complex cases.
The Society considers jury summoning areas should be aligned with
court committal areas, to help ensure that the ethnic make up
of juries is more representative, and to reduce the risk that
black defendants from one geographical area are tried by an all
white jury summoned from a completely different geographical area.
November 2002
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