APPENDIX 16
Memorandum submitted by the Police Federation
of England and Wales (CJSB 21)
INTRODUCTION
1. The Police Federation of England and
Wales represents over 129,000 officers in the ranks of constable
to chief inspector. Our members work closely within the Criminal
Justice System (CJS) and have daily contact with the victims of
crime. We therefore welcome this opportunity to comment on the
policy paper "Justice for All".
2. Whilst we broadly support the Government's
proposals for CJS reform, many of which we have advocated for
a number of years, the search for the truth would be better
served if some of the reforms were more radical or far-reaching.
We make specific proposals on such issues.
DISCLOSURE
3. The present procedures for pre-trial
disclosure are weighted heavily in favour of the defence: whereas
the prosecution has to disclose everything, the defence can spring
surprises, effectively ambushing the prosecution. The proposed
change to remove the restrictions on the jury being invited to
draw inference from discrepancies between the defence case pre-trial
and at the trial (paragraph 3.52) is a move in the right direction,
but we would go further. We call for the full disclosure of pre-trial
evidence, under judicial control, by both the defence and the
prosecution.
4. Further, in the Crown Court, witnesses'
intended evidence in chief should be put down in writing in witness
statements[14]
to be exchanged, before the trial, between the prosecution and
the defence at a time specified by a judge. If there were then
discrepancies between the witness statements and the evidence
as given at the trial, the judge should be under a duty to draw
this to the jury's attention and, where appropriate, invite them
to draw an inference. Only in the most exceptional circumstances
should either side be allowed to introduce a witness whose witness
statement had not been exchanged in accordance with the judge's
order.
RULES OF
EVIDENCE
5. We accept, of course, the principle that
evidence should be properly obtained in accordance with rules.
But if the search for the truth is to be paramount, the
determining factor in admissibility should be the enlightening
effect, which the evidence has on that search, rather than on
a detailed scrutiny intended to identify some minor procedural
irregularity, thereby preventing the evidence from being put to
the court. We would like to see legislative change which would
enable all relevant and potentially enlightening evidence to be
put before the court for the court to determine its value and
admissibility.
VICTIMS AND
WITNESSES
6. Victims should be at the centre of the
CJS and providing justice to them its core objective. The CJS
needs to be more sensitive to the trauma experienced by the victims
and witnesses of crimes, which is aggravated by then having to
give evidence in court.
7. The search for the truth will
not be assisted if witnesses are reluctant to come forward. The
evidence is that they are reluctant. A recent survey[15]
found that four out of ten witnesses felt intimidated. Of these,
half felt intimidated whilst waiting to give evidence and more
than one-third (36 per cent) gave as the reason that they had
to share facilities with the defendant.
8. Around half of witnesses (54 per cent)
felt that the other side's lawyer was discourteous and that they
had not been allowed to give a full response to the other side's
questions (46 per cent).
9. What is needed is a holistic approach
to making the experience of giving evidence in criminal courts
less stressful. In practical terms this involves:
— ensuring that witnesses do not have
to attend court unnecessarily, sometimes for several days, waiting
to give evidence, often as a ruse by the defence;
— improving the Witness Service, not
only by extending it to magistrates' courts, but by ensuring that
it is reliably available at all court locations;
— delivering promptly and meaningfully
on the proposed national strategy for victims and witnesses;
— the use of witness statements (see
paragraph 4 above) so that witnesses will be less worried about
becoming forgetful or confused; and
— in all criminal courts, providing
separate facilities for prosecution witnesses.
We are disappointed, in light of the above survey,
at the lack of specific proposals in "Justice for All"
for separate facilities for prosecution witnesses.
10. We welcome the proposals to publish
a national strategy document and to appoint a commissioner for
victims and witnesses. Any codes of practice will need to address
the difficult issue of the treatment of witnesses under cross-examination.
We recognise that the testing of prosecution evidence is an essential
aspect of natural justice for the defendant, but this should not
involve discourtesy to witnesses or preventing witnesses from
giving a full answer to the questions put to them in cross-examination.
We recognise that achieving the right balance will be no easy
task.
CROWN PROSECUTION
SERVICE (CPS) CHARGING
ROLE
11. There are currently six pilot schemes
in operation trialling a new role for the CPS, that of reviewing
police evidence and determining with which offences a suspect
should be charged. We are encouraged with the emerging results,
particularly relating to improvements in Police investigations
and lower discontinuances.
BAIL CONDITIONS
12. An integral part of these pilot schemes
has been the releasing of suspects on bail, often for several
weeks, whilst the CPS review the evidence and decide on any charges.
It is also a common investigative practice for the police to release
suspects on police bail while investigations are continued.
13. When suspects are released on bail in
either of these circumstances, there is often a high risk that
they may commit further offences particularly where, for example,
intimidation, domestic violence or hate crime is involved. To
reduce the risk of further offending, we think it is essential
that the police should be able to impose bail conditions on a
suspect before he or she is formally charged. We therefore fully
support this proposal: it is the very necessary concomitant of
suspects being released on bail pending CPS charging decisions.
REVIEW OF
REHABILITATION OF
OFFENDERS ACT
14. Over nearly 30 years, this Act has been
effective in enabling former offenders with spent connections
to obtain employment whilst at the same time protecting the public
by requiring full disclosure where necessary. The role of the
Criminal Records Office will assist in this process.
15. In advance of the review, our comments
are restricted to the issues surrounding young offenders. The
current procedures provide for the issue of reprimands and final
warnings to juveniles and the involvement of local Youth Offending
Teams introduces an element of appropriate professional intervention.
These procedures are designed to avoid the need for a juvenile
to appear in court and acquire a criminal record, but their effectiveness
would be diminished if the possibility of a criminal record no
longer existed as an ultimate sanction.
16. Therefore we have misgivings about the
proposals for "wiping the slate clean" of crimes committed
whilst under 18 years of age. We applaud the aim but fear that
it will send the wrong message to young people. It will suggest
that despite a reprimand, a final warning and professional intervention;
despite what may be several convictions leading to a criminal
record, offending under the age of 18 will be condoned by the
clean slate policy. There would be no deterrent and no protection
for the public from persistent young offenders.
MAGISTRATES' SENTENCING
POWERS
17. We support the proposal in paragraph
4.19 that magistrates' sentencing powers should be increased from
six months to eighteen months. The six-month limit is too low
and often results in a defendant being sent to a crown court just
to be sentenced. It makes sense for magistrates who have reached
a verdict also to pronounce sentence (paragraph 4.24).
18. We welcome the proposal in paragraph
4.26 for preparatory hearings. The present system is a drain on
police resources since decisions made are not binding. These hearings
and the proposals in paragraph 3.22 for judicial control will
facilitate parties' preparation for the trial and make the system
far more efficient.
BENCH TRIALS/TRIAL
BY JUDGE
ALONE
19. We agree that in fraud cases, the trial
judge should be able to direct the trial alone or with lay members
(paragraph 4.27). Fraud trials are frequently lengthy and highly
complex, making unreasonable demands on jurors both in terms of
their understanding of the technical issues involved and the time
that they have to serve.
20. We also agree with the proposal that
defendants should have the option of a judge alone directing their
trial in emotive cases. We foresee that defendants will exercise
this option where:
— there has been adverse publicity;
— public opprobrium is attracted—such
as sexual offences and child abuse;
— the case is legally complex; or
— there are technical defences, verdict
will be accompanied by an appealable reasoning.
ADVANCE INDICATION
OF SENTENCE
21. We agree with the principle of shorter
sentences for early guilty pleas. We welcome the advent of plea
bargaining which will be open and transparent and recorded in
the court. We believe that the principle should be applied from
the earliest stages when a suspect is first questioned by the
police about an alleged offence.
EVIDENCE OF
PREVIOUS CONDUCT
AND CONVICTIONS
22. We agree with the approach that entrusts
relevant information to those determining the case as far as possible,
and that this should apply to both witnesses and defendants. Therefore
evidence of relevant previous conduct and convictions should be
allowed to be adduced where the prejudicial effect of that evidence
does not outweigh its probative value (paragraph 4.54). We agree
with the examples in the White Paper.
DOUBLE JEOPARDY
23. We believe that the limited exceptions
to the double jeopardy rule as proposed by the Law Commission
strike the correct balance between the two basic principles:
— the state should not be able to make
repeated attempts to gain a conviction for the same alleged offence;
— it would undermine public confidence
in CJS if the guilty could avoid conviction and punishment.
We suggest that a second trial should be allowed
on the grounds of new evidence for any offence and should not
be limited to serious offences only.
PROSECUTION RIGHT
OF APPEAL
24. We support the prosecution right of
appeal against perverse verdicts on the grounds that no reasonable
jury could have reached such a verdict on the evidence before
them and the verdict is probably untrue or unfair.
RESTRAINING ORDERS/DOMESTIC
VIOLENCE
25. We wholeheartedly agree that the court
should be able to impose restraining orders on offenders, following
their conviction for violent crimes or sexual offences, to prevent
contact with victims or witnesses.
26. This proposal would also fill a loophole
in the powers of the courts to deal with incidents of domestic
violence. The advantages of such restraining orders include:
— peace of mind for the victim;
— one-off incidents would be covered;
— they can be both open-ended and recorded
on the PNC, whereas civil injunctions expire after six months
and can be recorded only on local intelligence systems; and
— the police would have immediate access
to important information.
27. We would also support anonymity for
victims of domestic violence if it could be demonstrated as a
result of a pilot scheme that this would encourage victims to
come forward.
November 2002
14 Additional to the defence statement which is a
summary of evidence. Back
15
Survey of vulnerable and intimidated witnesses (BRMB 2001). Back
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