APPENDIX 12
Memorandum submitted by the Metropolitan
Police Service (MPS) (CJSB 7)
1. INCLUSIONARY
APPROACH TO
EVIDENCE
1.1 The MPS strongly supports the recommended
inclusionary approach to evidence. The current imbalance of the
application of the system is unfair to society and victims when,
time and again, facts are ruled inadmissible and shorn away from
the prosecution case, leaving a jury to make decisions in the
absence of all the evidence. Trials that take all the available
evidence into account, with proper caution, are far more likely
to build confidence in a system dedicated to discovering the truth.
1.2 The current system relies upon complex
rules of admissibility, that are incomprehensible to the layman.
It would be far more logical to move towards a presumption of
inclusivity so that all the evidence, which is pertinent to establishing
the truth is presented to the court unless there are exceptional
reasons to the contrary. Those who are trusted to make right decisions
should be relied upon to make those decisions while in possession
of all the available evidence.
2. EVIDENCE OF
PREVIOUS CHARACTER
2.1 The MPS strongly supports the proposal
to allow courts access to information about previous convictions
during a trial, provided that they are relevant to the case at
hand. The MPS considers that courts should be regarded as responsible
enough to make judgements based on the evidence before them, and
that this information should be a part of the inclusive approach
to evidence as a whole. We would not, however, support the routine
use of all previous convictions. In addition, the MPS would also
welcome the introduction of strict guidelines governing the use
of this proposal by the courts, in order to avoid inconsistency
in its application. Any variations would undermine the purpose
of the changes and erode public confidence in what is a robust
and sensible suggestion.
2.2 While we are aware of the view of the
legal profession on this proposal, we do not accept that the position
of the Law Commission is tenable. Given that the intent of the
White Paper is to build confidence in the judicial process, the
Law Commission's own observation that, "We are unable to
say whether, if our scheme were carried into effect, more or less
character evidence would be presented to fact finders", undermines
this intent. If even those who propose it cannot say what the
result will be, it is clear that this proposal is unsatisfactory
and may prove to be totally unworkable. What is preferable is
a transparent system that will build public confidence in the
judicial process.
3. TRIAL BY
JUDGE ALONE
3.1 The MPS strongly supports the proposal
for trials to be heard by a judge sitting alone in complex fraud
or organised crime cases. Complex trials spanning months of evidence
and the most intricate of modern financial dealings do impose
difficulties on juries.
3.2 The MPS strongly supports the proposal
that trials be heard by judges alone in cases where the jury could
be intimidated. While the legal profession has cited "birthrights",
and made mention of an "over-mighty state", there are
sufficient and robust safeguards in this regard. The fact that
the jury system has existed for so long unchanged does not render
it immune to the need for reform at a time when society is changing
faster than ever.
3.3 Judges are capable of hearing such cases
and making proper decisions, and are more likely to resist in
a robust manner any inappropriate attempt to influence them. It
is clearly in the interests of justice for there to be no risk
of bribery or intimidation affecting the outcome of the trial
process.
4. DEFENCE DISCLOSURE
4.1 The MPS strongly supports the planned
alterations to the rules of disclosure which place much greater
emphasis on the responsibilities of the defence for the provision
of accurate defence statements. The current system of disclosure
does not promote justice but is inherently partial.
4.2 The current provisions allow opportunities
for a minority of lawyers to exploit the system to their advantage,
and judges have not always confronted the practices of submitting
inadequate or tardy defence statements or making excessive disclosure
requests. The proposed measures will, if applied as foreseen,
curtail these practices and ensure that the defence is made to
engage effectively in the process. The proposals will assist in
getting at the issues at the heart of a case, and in the search
for the truth, rather than in its suppression.
4.3 Historically, there has been a measure
of reluctance within the judicial system as a whole to resist
late service of defence statements, or to challenge requests by
the defence for disclosure. Public confidence in the system can
only be strengthened when the system is seen to be utterly fair.
5. UNUSED EXPERT
EVIDENCE
5.1 The MPS strongly supports the proposal
on unused expert evidence as vital to redress the unfairness of
the current system. In the adversarial process, the character
and experience of the expert witness has a substantial effect
on the outcome of a trial where there are competing opinions concerning
particular facts. Under current disclosure provisions the defence,
unlike the prosecution, is not required to disclose the details
of all expert witnesses from whom it has sought advice. The defence
may have obtained advice from any number of expert witnesses until
an opinion, which accords with the defence case is obtained. It
is not in the interests of a fair judicial process for the defence
to have the opportunity to suppress adverse expert witness evidence
and refer only to the best interpretation in support of their
case. In support of an inclusionary approach to evidence generally,
this measure should be adopted and the information be given to
the jury.
6. CONDITIONS
ON PRE-CHARGE
BAIL
6.1 The MPS strongly supports this proposal.
It is the view of the Bar Council that such conditions are in
breach of Articles 5, 6, 7, 8 and 11 of the European Convention
on Human Rights. It is the view of the MPS that the rights of
the individuals and communities who suffer the depradations of
prolific and intimidating offenders must be safeguarded. If re-offending
is to be prevented and witnesses and victims protected from harassment
and intimidation, these measures are necessary.
7. JUDICIAL DISCRETION
7.1 The MPS strongly supports many of the
measures in the White Paper. We believe, however, that many of
them will in practice fail unless the discretion of the judiciary
in their application is clearly defined. The courts should not
sit aloof from the community they serve; they are an integral
part of the creation and maintenance of a safe and just society.
It does not serve the public to preserve a process, which has
no purpose beyond itself.
8. PRE-TRIAL
CASE MANAGEMENT
8.1 The MPS accepts that there is much work
to be done in order to achieve the best possible product to assist
in pre-trial case management. The proposals for issues at the
heart of a case to be agreed in front of a judge or magistrate,
in addition to a time scale for required actions, will clearly
benefit victims and witnesses alike by streamlining the system.
It is vital, however, that this does not become a one-sided process
in which only the police and CPS are under pressure to do more.
The defence must not be allowed to shy away from its responsibility
to address outstanding issues.
9. PERFORMANCE
INDICATORS
9.1 There is an argument that the Criminal
Justice System is not a system at all, but a group of separate
agencies, working towards different, sometimes contradictory,
targets, with overlapping operational boundaries. A cohesive system
should encompass common procedures and protocols, and work to
one unified set of objectives, which are applicable across the
entire process. At present agencies are measured on conflicting
Performance Indicators. The MPS contends that an integrated, coherent
performance framework for which all agencies are accountable is
the only way forward. The Courts should not be exempt from such
provisions.
October 2002
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