Where are we going with this, and where do we want to end up? (Part 2)
Part two of an ongoing, indefinite number of ‘observations’ in no particular order.
Eroding the right to trial by jury
It was proposed by this Government (when Jack’ Straw was Home Secretary) to remove the right to trial by jury for offences including theft, criminal damage, burglary and assault, or so-called ‘either way’ offences, and in fraud trials (proposed when David Blunkett, Charles Clarke, and John Reid ‘ were each Home Secretaries).
As the name implies, these can be dealt with either by the magistrates or before a judge and jury at the Crown Court. Such offences include theft and handling stolen goods. A suspect can insist on their right to trial in the Crown Court. Similarly, magistrates can decide that a case is sufficiently serious that it should be dealt with in the Crown Court – which can impose tougher punishments.
Lord Justice Auld, was asked by the Government in 1999 to inquire into,
the practices and procedures of, and the rules of evidence applied by, the criminal courts at every level, with a view to ensuring that they deliver justice fairly, by streamlining all their processes, increasing their efficiency and strengthening the effectiveness of their relationships with others across the whole of the criminal justice system, and having regard to the interests of all parties including victims and witnesses, thereby promoting public confidence in the rule of law.
He concluded that,
The defendant should no longer have an elective right to trial by judge and jury in ‘either-way’ cases. The allocation should be the responsibility of the magistrates’ court alone
I’m not entirely sure whether the Government thought up their proposals before or after Auld’s review. Regardless, he provided some very interesting material about and insights into juries.
But something I’ve always found odd is this:
Over the last two or more centuries judges have been more instrumental than juries in declaring and protecting the rights of citizens. Sadly, juries did not prevent the miscarriages of justice uncovered in the late 1980s and early 1990s arising, in the main, from falsification or concealment of evidence that so shook public confidence and gave rise to the appointment of the Runciman Royal Commission some ten years ago.
I say odd because I wonder how on earth can juries be expected to prevent miscarriages of justice arising from the police falsifying or concealing evidence (e.g. in the cases of the Guildford Four, Macguire Seven, and Birmingham Six). I would expect juries to tend to believe the police rather than the suspect. Wouldn’t you?
Furthermore the implication (or least a reasonable inference to draw) is that a judge, sitting on his own, might do better. But the judiciary did not prevent those miscarriages of justice either, did they? Indeed the judge at the trial of the Birmingham Six prevented the jury from examining their ‘confessions’. And when the Birmingham Six pressed charges of assault against the West Midlands police in 1997, the Court of Appeal rejected their case (supporting the appeal by the police against their writs), with Lord Denning (incidentally, seven judges agreed with him) saying that,
Just consider the course of events if their [the Six’s] action were to proceed to trial … If the six men failed it would mean that much time and money and worry would have been expended by many people to no good purpose. If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous. That would mean that the Home Secretary would have either to recommend that they be pardoned or to remit the case to the Court of Appeal. That was such an appalling vista that every sensible person would say, ‘It cannot be right that these actions should go any further.’ They should be struck out either on the ground that the men are estopped from challenging the decision of Mr. Justice Bridge, or alternatively that it is an abuse of the process of the court. Whichever it is, the actions should be stopped.
In short, “we must not countenance the undermining of public confidence in the criminal justice system, so even if these men are innocent they must be kept inside”. Now that is an appalling vista.
It seems rather perverse then to conclude that a jury that was lied to, and who had evidence withheld from it, was somehow at fault for not preventing a miscarriage of justice.
Whatever; I’m drifting off topic and Auld dealt with the subject better than I can.
I also think it interesting, given the Government’s naked populism, that the public seems largely in favour of juries – absent other considerations I would expect the Government to improve the right, not erode it. But then there are other considerations.
There are the usual arguments that eroding the right to jury trial would only affect a minority of trials (and suspects). I wonder if there is an inverse of argumentum ad numerum, a logical fallacy (I’m perhaps incorrectly applying here) that consists of the assertion that the more people support or believe something, the more likely it is to be correct (or as I like to call it, the Millions of Flies Can’t Be Wrong fallacy). In other words, the assertion here is that we need not be concerned because only a few people will be affected, which incidentally seems to be something the Government claims of pretty much every objectionable liberty-infringing proposal.
There was also the argument that we should do away with juries in complex and lengthy fraud trials because they are thick. Well, that’s not quite how the Government put it, but that’s what they meant (they have since backed away from that position). They wouldn’t wait to see how the reforms of case management would play out – oh no, let’s have more reform. And the Parliamentary machinations relating to the Fraud Trials (without Jury) Bill were symptomatic of the lengths the Government go to in order to get objectionable measures on to the statute book. (We are in the odd position of having the power on the statute book, within the Criminal Justice Act 2003, but it cannot be used unless it is approved by both Houses of Parliament…)
If I recall correctly some former jurors have strenuously objected to being called incompetent, and suggested that, if the state minded adverse judgements so much, perhaps it could put its case a little better.
Apparently the ‘slippery slope’ or ‘thin end of the wedge’ argument is a logical fallacy. I must however insist on using it here because you can quite clearly see that if we agree a fraud trial is complex and therefore requires that the suspect be tried without a jury, any number of other trials – say, terrorism, serious organised crime – could be equally if not more complex, and therefore if they are equally or more complex, why shouldn’t they be tried without a jury?
It is for that reason (if you generally support jury trials, of course) that you should be very wary of proposals to get rid of juries.
There are of course reasonable ways to ‘streamline’ trials – improve case and trial management. For example, apparently one judge tells the prosecution to pick the best four or five points they have out of their ten or twenty, and just proceed with those.
One more important thing about juries is their de facto right of ‘jury nullification’. This is where they can – merely by being a jury – acquit a defendant despite his violation of the law. They are rarely informed they have this ability.
Juries don’t only appear in criminal cases. They are also involved in inquests – not every inquest, just the most serious / controversial (out of 500,000 deaths in England and Wales each year, only 500 have inquests with juries). The Government has proposed getting rid of juries in ‘sensitive’ inquests, in its recent Coroners and Justice Bill (view its progress here). Again there was the argument that only a minority of inquests have juries. Why not get rid of them altogether? Of course that is unreasonable. We should have (or get rid of) juries based on the merits, not on the numbers.
The ostensible reason for getting rid of juries is to deal with inquests, such as Azelle Rodney’s, where the case seems to rest on intercept evidence. The Government’s solution is to get rid of juries and have security cleared coroners. And of course the Government says it should be up to the Government, not a neutral and informed decision-maker (a coroner or judge) whether or not a jury should be involved.
Of course there is a much more reasonable solution – for instance, we could treat intercept evidence in inquests in a similar way as it’s treated in criminal cases.
At the time of writing, I think the Government has backed off from demanding it be given the power to appoint coroners in such cases. Their approach here was ridiculous – there was no way such a power could be considered fair (and it would definitely be unlawful under Article 2, right to life, of the European Convention). Suppose you killed someone – would it be fair to be able to appoint your own judge?
Essentially that is what they suggested, that the state should be allowed to appoint their own coroner to oversee an inquest into a death that may have been (or was known to be) caused by an agent of the state. This affects ordinary people, not just suspected terrorists and criminals, such as the families of the soldiers killed at Deepcut barracks.
(There is more in this Bill to be concerned about, as Liberty and others make very clear.)
The purpose of the criminal justice system
I have to wonder about the Government’s motives here. I think Auld was genuine about the need for reform. But what’s more important to the Government? Delivering justice fairly or streamlining all their processes, increasing their efficiency, and/or political expediency? Performance management, targets, and managerialism?
We know Tony Blair’s opinion:
For 8 years I have battered the criminal justice system to get it to change. And it was only when we started to introduce special ASB laws, we really made a difference. And I now understand why.
The system itself is the problem. We are trying to fight 21st century crime – ASB, drug-dealing, binge-drinking, organised crime – with 19th century methods as if we still lived in the time of Dickens.
I just want to point out that here that he suggested we never had anti-social behaviour, drug-dealing, binge-drinking, or organised crime before the 21st century – however, one need only look up Mother’s Ruin to put the lie to all of that in an instant.
Also, 19th century methods (wot, like gathering evidence, finding motives, presenting the case to court?) are inadequate not on their merits but because they are from the 19th century – another logical fallacy, argumentum ad antiquitatem, or ‘something is bad because it is old’. This is curious because Blair seemed to wholly approve of fingerprinting, which dates from the 1700s B.C., if not earlier Yes, B.C.: ‘Before Christ’.
The whole of our system starts from the proposition that its duty is to protect the innocent from being wrongly convicted. Don’t misunderstand me. That must be the duty of any criminal justice system.
But surely our primary duty should be to allow law-abiding people to live in safety. It means a complete change of thinking. It doesn’t mean abandoning human rights. It means deciding whose come first. I believe three things work.
First, a radical extension of summary powers to police and local authorities to take on the wrong doers.
We will publish plans to do this by the end of the year. They will tackle specifically binge-drinking, drug-dealing and organised crime; and develop existing laws on ASB.
Second, we need a uniformed presence on the street in every community. Officers on the beat is what the public have wanted for years and they’re right. I have seen teams of police and CSOs in action. It works. We want them across the whole of Britain over the next few years.
Third, give our young people places to go so that they’re off the street.
In other words he claimed the “primary duty” of a criminal justice system is not justice but (ostensibly) the protection of everyone other than the suspect. I confess this is so alien to my view (and what I understand to be the reasonable view) of the criminal justice system that I initially had trouble comprehending what he was talking about.
As a symptom of Blair’s somewhat peculiar perspective on the criminal justice system, I’d also like to mention that he demanded to know of Foreign Office officials why they were seeking assurances of Egypt that people deported there would not be subject to “ill treatment whilst in detention” and that they would “receive a fair and public hearing” – according to him, such things were, and I quote, “a bit much“.
Blair never explained how innocent people who become suspects are protected by such a system. And he never provided evidence that those “three things work” – nor his definition of work – he merely claimed to “believe” that they work. (But I’m not sure he sincerely “believes” in much at all.)
I think a reasonable definition of ‘work’ in the justice system would include the following: it deters people from committing the crime; fairly determines if a suspect committed the crime and appropriately punishes that person; reduces the likelihood of him committing that offence again or indeed any other (recidivism); justice must be done and seen to be done; it should operate as quickly as is reasonable.
So does the use of summary powers or summary justice ‘work’? Is the target of “offences brought to justice” (where ‘justice’ can merely mean, ‘dealt with’) appropriate, reasonable, productive?
The huge growth in on-the-spot fines to keep offenders out of the courts is in danger of bringing the law into disrepute, the Lord Chief Justice’s chief of staff [Lord Justice Leveson] says. …
… summary criminal proceedings … have ceased to be summary. There has been an incremental growth in paperwork and procedural formality and of the time that the formalities take to bring a case to trial. So that, in some parts of the country, it has been taking over six months to bring simple and straightforward criminal prosecutions to court. This is one of the factors that has been responsible for the growth of ‘diversion’ that is the administration by the police of conditional cautions or fixed penalties, so that the lesser offences do not come within the purview of the court at all. Diversion can make sense in the case of some minor offences which do not require to be dealt with on an individual basis. The Magistrates are concerned, however, that there should not be removed from their adjudication cases that call for an individual sanction that it is designed to prevent re-offending. I share that concern, and I am also concerned at the length of time that is elapsing before cases are brought to trial before the Magistrates.
The current system of measuring police performance has distorted operational priorities, criminalised many individuals for trivial misdemeanours, and prevented forces from focusing on what is important locally. There is much to be welcomed in initial attempts to reform the performance framework. We are pleased that the generic targets for offences brought to justice and sanction detections, which encouraged forces to focus on the easiest crimes to resolve rather than those which have the most significant impact on public safety, have been removed from the 2008/09 statutory performance indicators …
I think Blair’s comrades were and continue to be of similar bent. Certainly proposals for reform have not stopped coming – 60-odd criminal justice bills in 11 years, over 3,000 criminal offences etc. I don’t think there is anything malign – it’s just that the people in charge don’t have as much respect for our traditional (and proven) freedoms and rights as they do for political expediency; and law and order is one of the most important political issues, so they have to be seen to be doing something, even if it means churning out ever more legislation.
I’ll give you an example of something that made me think “what a complete waste of time”: when they made Causing a Nuclear Explosion a criminal offence. Quite why causing a nuclear explosion would not be covered by S2 Explosives Act 1883 (offence to cause an explosion likely to endanger life or cause serious injury to property), or indeed any other offences of harm to people or damage to property, such as the law on murder, I just don’t know, and nor it seems does anyone else.
What else can be done to punish wrongdoers more ‘efficiently’?
Reducing and reversing the burden of proof
The criminal standard of proof is ‘beyond reasonable doubt’ – the civil standard of proof is ‘more likely than not’.
A lower standard of proof would make it easier to punish wrongdoers, wouldn’t it?
In 2004 the Government proposed lowering the standard of proof in trials relating to terrorism or organised crime (see also this). Perhaps not quite to the civil standard but certainly less than the criminal standard. Sadly the response to this suggestion was so overwhelmingly negative that we heard no further detail.
We could also unreasonably reverse the burden of proof, for example in relation to s49 Regulation of Investigatory Powers Act, notices to require disclosure of an encryption key. Apparently it is rather far-fetched that someone might forget the key to encrypted information, so the onus is on him to prove that he has forgotten it, or of he goes to jail.
But why bother with criminal trials at all?
The right to personal liberty as understood in England means in substance a person’s right not to be subjected to imprisonment, arrest, or other physical coercion in any manner that does not admit of legal justification.
That anybody should suffer physical restraint is in England prima facie illegal and can be justified (speaking in very general terms) on two grounds only, that is to say, either because the prisoner or person suffering restraint is accused of some offence and must be brought before the courts to stand his trial, or because he has been duly convicted of some offence and must suffer punishment for it.
Over the past 20 years, public policy has increasingly reflected the view that criminal prosecutions and sentences alone may be an inadequate legal response to criminal and other unacceptable behaviour.
The statute book now contains a growing number of examples of a different model: powers enabling individuals or public authorities to seek civil orders from a variety of courts to prohibit undesirable behaviour, backed by criminal sanctions if the subject of the order breaches the order.
As civil orders are rather easier to obtain than criminal sanctions, being subject to a lesser burden of proof, it is no wonder they are attractive to legislators.
Here are the examples the Committee gives of these “inroads into personal liberty”:
- The Company Directors Disqualification Act 1986 created a civil remedy of disqualification, which enabled the court to prohibit a person from acting as a director; breach of such an order is subject to criminal sanction.
- Part 5 of the Criminal Justice and Public Order Act 1994 created a power for police to request that a local authority make an order to prohibit trespassory assemblies which could result in serious disruption of the life of a community or cause damage; breach of an order made under these provisions may result in criminal prosecution.
- Part 4 of the Family Law Act 1996 conferred powers to make residence orders (requiring a defendant to leave a dwelling house) and non-molestation orders (requiring a defendant to abstain from threatening an associated person); criminal sanctions are available for disobedience to these orders.
- The Protection from Harassment Act 1997 created a criminal offence of harassment (section 1), but section 3 also created a civil remedy, enabling individuals to apply for an injunction in the High Court or a county court to restrain another person from pursuing conduct which amounts to harassment, and breach of such an order was made a criminal offence.
- The Crime and Disorder Act 1998 created anti-social behaviour orders(ASBOs); local authorities were empowered to seek orders from the magistrates’ court where a person acted “in a manner that caused or was likely to cause harassment, alarm or distress” (section 1). The Act also created sex offender orders; a chief officer of police was given power to seek such an order where a person is a sex offender and that person acts “in such a way as to give reasonable cause to believe that an order under this section is necessary to protect the public from serious harm from him” (section 2).
- The Football (Disorder) Act 2000 created “banning orders“, designed to prevent known football hooligans from causing further trouble at home and abroad. Breach is subject to criminal penalty.
In fact there are two types of banning order that can be made: one, on conviction of an offence; two, on a complaint.
- The Anti-social Behaviour Act 2003 amended Part 8 of the Housing Act 1996 to give powers to housing authorities to seek ASBOs.
- Part 2 of the Sexual Offences Act 2003 (which repealed the Sex Offenders Act 1997) created “sexual offences prevention orders“, “foreign travel orders” and “risk of sexual harm orders“.
- The Prevention of Terrorism Act 2005 created control orders “against an individual that imposes obligations on him for purposes connected with protecting members of the public from a risk of terrorism” (section 1) and “a person who, without reasonable excuse, contravenes an obligation imposed on him by a control order is guilty of an offence” (section 9).
The obligations of the control order must be considered in their entirety, but it has been found by our judiciary that 16 hours or more house arrest is a deprivation of liberty and therefore the control order must be amended or quashed.
More recently there are Violent Offender Orders, and Serious Crime Prevention Orders of which the Committee said:
We draw to the attention of the House the fact that the far-reaching restrictions of a SCPO may be placed on a person against whom no criminal proceedings have been instituted or who has been convicted of no criminal offence.
Moreover, the restrictions which can be imposed are not limited to conduct forming part of the particular type of crime which has been proved, by civil standards, against the defendant.
ASBOs and other types of control order that now exist on the statute book generally deal with small-scale anti-social behaviour and have little impact on third parties associated with the subject of those orders. SCPOs will have a much wider reach. …
A broad question for the House is whether the use of civil orders in an attempt to prevent serious criminal activity is a step too far in the development of preventative orders.
Whether or not the trend towards greater use of preventative civil orders is constitutionally legitimate (a matter on which we express doubt), we take the view that SCPOs represent an incursion into the liberty of the subject and constitute a form of punishment that cannot be justified in the absence of a criminal conviction.