The government's latest criminal justice bill, due to become law this autumn, marks a new departure in criminal justice reform. For several decades now, nearly all judicial reforms have sought to ensure that no innocent person ever faces a guilty verdict. Now this new bill sets out "to rebalance the criminal justice system in favour of the victim and the community." This mantra reoccurs throughout last year's 159-page white paper that preceded the bill, along with observations such as: "a criminal trial is not a game under which a guilty defendant should be provided with a sporting chance."
Many readers of this magazine will regard that as code for an illiberal attack on historic civil liberties. I profoundly disagree. My own involvement with the criminal justice system is small?since 1995, I have given up one day a fortnight to serve as a magistrate at my local youth court. Why? Most people assume that, as a professional screenwriter, I'm on an extended research expedition. But not so. I believe in the magistrates' court system and its unique English variation, namely the amateur judge, the justice of the peace. We are a conduit between people and the criminal justice system, untempered?in the best sense?by legal training or the need to make a living from it.
For while it is the QC-dominated Old Bailey trials that command the headlines, 96 per cent of all criminal cases are settled in the magistrates' court and almost all youthful criminal careers start (and can therefore be stopped) in the youth court. There is no more important cog in the criminal justice machine. But it remains an under-funded Cinderella service. As a consequence my last few years on the bench have become increasingly frustrating. I give my time voluntarily in the hope of halting a few of those budding criminal careers. But it has become increasingly hard even to bring a matter to trial. What's more, as certain types of crime have increased?especially inner city street crime?people have started to lose faith in the justice system, what the white paper rightly calls a "justice gap." So, despite some reservations, the criminal justice bill will be welcomed by most people I know who work in the youth courts.
Most mornings at Balham youth court, we three justices sit, watching the clock, waiting for the trial to commence. Usually we wait in vain. Last July saw 74 trials listed but only 26 went ahead; August saw 36 out of 73 proceed. A trial is more likely than not to be adjourned. And Balham is an average inner city youth court, servicing Lambeth and Wandsworth.
What causes these adjournments? It might be a new request for a document or it might be a previously requested document that has not been produced by the Crown Prosecution Service (CPS). It might be that a previously unconsidered witness is now required or it might be that a witness has not been warned to attend or that a police officer witness is required elsewhere. It might be that the defendant has only just instructed a new solicitor or it might be that the CPS simply isn't ready.
Any suspicion that the defence is not complete renders a trial open to subsequent appeal. Any decent advocate asked to represent a defendant who offers no defence has no choice but to pressurise the Crown evidence, to demand every interview or police radio transcript. Underfunded and understaffed, the CPS cannot keep up with this demand for paperwork, transcripts, exhibits and tapes?and the result is adjourned trials. You might think that this merely postpones justice: but most cases are adjourned for at least three months and when the new date arrives, the victims can often not be bothered to come back.
Of course, it is quite reasonable that any defendant has access to the fullest possible defence. But unless we are willing to fund a far more effective CPS, unless we are prepared to expand the number of police officers and their civilian support staff, then justice will continue to be denied.
Actually, the CPS is better than it used to be. It was only established in 1986?a single national body of 6,000 lawyers and clerical staff charged with prosecuting people on behalf of the rest of us (replacing a patchwork of local arrangements). It started grossly underfunded and its performance was often dismal. Helped by an increase in funding, matters improved in the early 1990s. But after a reorganisation in the mid-1990s, performance slipped again. The 1998 Glidewell report on the CPS stressed the communication failure between the police and CPS in obtaining and preparing evidence?for example, CPS requests for more documentation from a police officer would too often go astray or lie forgotten while an officer was on leave. The report recommended joint police/CPS units, known as criminal justice units, which have helped in some places. But funding and morale problems remain, especially in London.
Even if the CPS became perfectly efficient, there is a second cluster of problems to sort out around the "rules of evidence." The criminal justice white paper asks: "Does the sheer detail in the Police and Criminal Evidence Act create too much potential for the police to be tied in legal and procedural knots?" The answer is an emphatic yes. There was much in the above Act?passed in 1984?which was long overdue: the taping of police interviews with suspects, the constraints on the questioning of suspects. (Before the Act most prosecution cases were based on confessions made to the police, now that it is quite rare.) But now any decent lawyer knows how to unpick the evidence and attack how it has been acquired from a suspect until it collapses in an inadmissible heap. As a result, the police are constantly on the defensive and the CPS would rather not proceed than come unstuck later. Like any civil service department, it operates on a risk avoidance principle.
A separate but related issue is the way that evidence is presented in court. Here, I think most magistrates will welcome the relaxation of the "hearsay" rules proposed in the bill. I have never understood the need for the blanket ban on anyone-even a police officer reciting from notes-repeating what someone else has said unless they can also attend court to confirm or deny it. Police evidence is always paraphrased as "as a result of information received, I proceeded to..." although it is clear that what was said was "that bloke over there done it, officer." Witnesses are baffled when we have to interrupt and prevent them from saying what was said to them. But most important, an opening-up of hearsay will enable evidence to be heard from those who cannot attend court. Many victims of a ?100 burglary may not think it worth losing a day's pay to attend court. If the losses are minor or insured, it seems too trivial. Yet if the 14-year-old, embryonic burglar can be convicted and helped out of his criminal ways, the gain to both him and society is priceless.
For crown court jury trials the bill also proposes to "remove restrictions on the jury being invited to draw inferences from discrepancies between the pre-trial defence statement and the defence case at trial." This seems long overdue. Any such discrepancy by the prosecution or their witnesses is fully exploited by the defence while the latter dance around, frequently changing tack without any adverse comment. One result of this discretion is that police officers waste huge amounts of their time sitting around in court waiting to give evidence?the defence insists they are all there just in case it thinks of something to ask them. (Police officers actually give evidence for only 3 per cent of their time spent at court.)
The bill also aims to prevent "disclosure becoming a battleground between prosecution and defence in which the defence hope to 'trip the prosecution up' at an early stage" creating endless adjournments. So it is proposed to give the "prosecution a right to apply for an early judicial ruling in circumstances where the defence statement is accompanied by unreasonable requests for long lists of prosecution documents." But this will only work if the ruling can be delivered swiftly and if the judiciary is given robust backing to turn down these long lists, or even short ones, for minor trials. This is a crucial change?already practised by some district judges (formerly known as full-time stipendiary magistrates) who demand to know what the disputed issues are and then allow only documents which are strictly germane. The white paper aims to "reinforce the professional obligation on defence lawyers to assist decision-making by the courts by defining and clarifying the issues in the case." This is the right idea but hard to implement. How can a law lord deny an appeal on the basis that "we didn't realise what the issues were at that stage?" And once the appeal court has ruled in favour of that the floodgates may open.
The proposed relaxation of the rules about the admissibility of previous convictions is another complex issue. The white paper outlined a series of examples, mostly focusing on offences which are frequently repeated?sexual assault or taking without owner's consent. Both charges often attract "it could not possibly be me" defences or a "consent to sex" defence; both are usually undermined by the existence of similar previous convictions. Far too often the career criminal or repeat sexual offender will get away with calling on the "why on earth should it be me?" defence which properly only belongs to the "good character" defendant. Stories of jurors gasping in horror after hearing of the previous convictions of someone they have just acquitted are a staple of court lore. (In times past, knowledge of a defendant's past conduct was taken as a given; jurors or magistrates would judge people whose character they knew from living in the same town or village.)
The white paper proposes a range of sensible safeguards but there is always a danger that the police will concentrate their efforts on prosecuting those with previous convictions in the belief that they will more easily get a guilty verdict. And we know that with, for instance, a sexual assault (especially if paedophiliac), the police's first port of call is the usual suspects list. But, on balance, I believe that the potential for abuse should not block the proposal.
If the relaxation of the rules about previous convictions, with appropriate safeguards, can be justified, there must be greater doubts about the relaxation of double jeopardy, the rule that prevents anyone being tried more than once for the same offence. There is no doubt that there is a public appetite for it following the collapse of the Stephen Lawrence trial and other high profile trials. And the change in the law is proposed only for serious offences where there is "new and compelling evidence." But this seems to be mainly a bone thrown to the law-and-order populists.
At the other end of the spectrum, the government has, rightly, ducked a battle with civil libertarians over restricting the defendant's right to choose a jury trial. The bill proposes scrapping jury trial only for complex fraud trials and cases where there is a risk of jury intimidation. But the bill does also propose to raise the maximum custodial sentence that magistrates can pass from six months to 12 months, in the hope that fewer cases will go on to the crown courts.
Miscarriages of justice occur not just when an innocent person is wrongly accused but also when there is more than enough evidence to convict a guilty person but a case collapses because the system makes an effective trial impossible. Some of the reforms discussed above will help to make it easier to get more legitimate convictions. But the real devil here is in the detail, in the dogged, workaday practice of the police and the magistrates' courts. So let us take a recent example of how a single criminal event worked its way through the system.
In July 2001, my son Jacob, then 12 years old, was mugged on Clapham Common?he wasn't hurt, a "light" mugging by inner London standards. He was walking our dog Betty and came home at about 6.30pm, told me what had happened and we raced back to the common in the hope of spotting the young thugs. There was no sign of them but there was a police van parked on the far edge of the common. I went to tell them what had happened and who we were looking for (one attacker was apparently wearing a bright yellow shirt). "No problem," said the officer, "They're already in the back of the van."
It turned out that they had been arrested for a second mugging soon after. So we went to the police station to give a statement. That's when our odyssey into the victim's side of the justice system began. Thirty-nine hours later (spread over nine months) a verdict was reached. This is how Jacob and I passed that equivalent of a working week: initial statement to police on evening of incident, four hours; first ID parade, four hours; second ID parade, three and three-quarter hours; first (aborted) robbery trial, three and three-quarter hours; additional statement on witness intimidation, two and a half hours; second robbery trial, eight hours; extra witness intimidation statement, two hours; first (aborted) witness intimidation trial, four hours 15 minutes; second witness intimidation trial, six hours and three-quarters. Total spent on a minor matter of justice: 39 hours.
In fact, you can double this to 78 victim-hours because I had to accompany Jacob through every stage of the process. In all, he missed four days of school and I had to significantly interrupt five of my self-employed days' work. At a late stage, idling away time in the witness room, the detective constable in charge of the case turned to me and said, "We're really impressed with how you've stuck at this, always back for more." And he said this knowing that I have a vested interest in the success of youth justice.
The policeman was still impressed because most people don't stick it out. Over 30,000 magistrate court cases were abandoned in 2001 because witnesses refused to give evidence or failed to turn up. Forty per cent of witnesses are not asked to give evidence on the day they are called. In my son's case, I have no doubt that most "normal" witnesses would have given up, the robbers walking free. Indeed, the story of Jacob's mugging is a microcosm of how the system currently fails victims.
To begin at the beginning: we were driven to the police station and placed in the canteen to wait, about an hour, for an officer to take a statement. When our officer arrived, Jacob told his story and then dictated it again slowly while the officer wrote it out in longhand. The accused, by comparison, is merely asked to respond to questions while everything is tape recorded. Usually the latter process takes no more than 20 minutes, whereas the victims have to dictate it and watch it being written out. Not only does it take much longer but also the officer's syntax usually strips the words of emotion and the statement ends up not quite reflecting what the victim wishes to say.
So why is there nothing in the bill allowing victims and witnesses to give their statements in the form of question and answer onto tape? Lawyers might object, fearing that police could lead witnesses towards answers which might render them inadmissible. But I have no doubt that this would quickly shake down and an effective set of open questions would be developed by police forces. If the resulting summary of a witness interview was then disputed, the full tape?like the accused's interview?could be heard by the court which would then be in a position to make up its own mind. That would often mean jurors or magistrates hearing the victim's distress and it would take a daring defence counsel to insist the tape was played. Most important, the victim could be in and out of that police station in half an hour. Watching an officer write it out, getting it wrong, make corrections, initialling those corrections is enervating and unnecessary.
But little did Jacob and I know that our ordeal was only just beginning. Next came the ID parade. Quite rightly, these have been reformed to ensure that no longer can the black-skinned accused find themselves in a parade with eight white men, or short people in a parade with eight six-footers. But the result is that the accused can now simply refuse to take part in the parade on the basis of the inadequacy of the other bodies. What was initially refined to give the accused a fair chance has now been perverted into a decoy system for defendants. And can you imagine how hard it is to round up a dozen 15 year olds (from whom the accused chooses his eight), even at ?10 a head? Especially if they need to have bleach-blond hair, as demanded by the accused in Jacob's case.
You might presume, as I did, that a refusal to stand in the parade would play badly for the accused-rather as the drunk driver's refusal to give a specimen weighs against him. But no, he was simply allowed to stamp his foot and refuse (apparently this happens in more than half of such parades). Shame-faced, the police officer came into our waiting room and told us we would have to come back another time. We had sat waiting for two hours while the accused's solicitor haggled and now it was all a waste of time.
The white paper suggests extending video ID parades?a kind of television mugshot parade. But will the technology and bureaucracy work efficiently enough? It now takes the Metropolitan Police eight weeks to copy 30 seconds of CCTV footage.
Eventually, four months later in November 2001, we come to our robbery trial at Camberwell youth court. We arrived promptly for a 2pm start. The accused is often driven to court or visited the night before by the police to remind him to come, and even fetched if he forgets. He also has a solicitor to greet him at court, take him through the process and sit with him through the trial, fully paid for. The law does not pay for anyone to greet, escort, brief or sit with the victims and witnesses.
No one greeted us at court. In the public waiting room, we brushed past the knees of the two accused boys and their mothers and sat on the opposite side of the room. They glared across at us through a haze of tobacco smoke. No one asked us why we were there or attempted to tell us when our case might be called. When I finally used my inside knowledge to find the list-caller, he ushered us into the witness waiting room. There was one, but there was no sign to tell witnesses that it existed.
If we care about making life easier for witnesses, there should be two channels to take the separate parties into court. It is absurd that my son should have to sit opposite his attackers. The white paper limply states: "It is vital that those who attend court as witnesses are protected from intimidation. Separate facilities help ensure this." It offers no financial commitment except in the case of new courthouses.
After half an hour in the witness waiting room we were told that the lawyers were arguing about the admissibility of the ID parade evidence and at 2.45pm the district judge abandoned the trial. No one told us why, no one called us into court to have it politely explained that the trial would have to be adjourned to another date.
This brings me to the most glaring omission from the bill. In the 19th century, when many of the foundations of our justice system were laid, clerks took their note in inky copperplate and it was essentially an oral procedure. As a result it was crucial that the proceedings occur in a single, flowing stream, all the participants assembled before it was safe to begin. Now, in 2003, we have biros, computers and digital recorders. So why do magistrates' court trials have to take place on the same day? Why can't the district judge hear some evidence and then adjourn until the next stage is ready. Occasionally this already happens?time runs out?and everyone concerned fixes another day in their diaries for the trial to be picked up again. No one howls about a miscarriage of justice.
Why can't all trials stop and start according to the availability of witnesses, enabling them to give their evidence and then go back to their daily lives? Jacob's evidence could have been heard that first day and we could have gone home, our job done. There will be occasions when the defence might argue that they were not in full command of the facts when the victim's evidence was heard (a week or month previously) and so were not able to properly cross- examine. But these instances would be vastly outweighed by the increased number of completed trials.
So, fruitlessly dispatched from court in November with a new trial date in February, we went about our daily lives. Then Jacob was out Christmas shopping in Wandsworth when he found himself face to face with one of his bailed attackers. The accused threatened him with a punch and walked on. So, within hours, we're back at the police station, doing another snail-pace statement (two and a half hours) about this act of witness intimidation.
When a charge of witness intimidation comes in front of me as a magistrate, I always think hard about withdrawing bail. Yet there's nothing in the bill about bail, just that the "offender can no longer expect to be repeatedly released on bail to re-offend while awaiting trials which disintegrate for lack of evidence or witnesses... research shows that nearly one quarter of all defendants commit at least one offence while on bail, rising to 38 per cent for offenders aged under 18... "
The bill is also silent on the rules for proceeding in absence. Currently, for some minor trials, if the offender fails to turn up, the trial goes ahead without him. We need to consider whether this should be widened. Many offenders choose not to attend, knowing it will make the trial less likely. (There is an apocryphal story that young offenders sit on the low wall outside Balham Court, waiting: if the witnesses turn up, they don't; if the witnesses don't, they do.) Proceeding to trial without the defendant present?as I have been encouraged to do by clerks?would either reduce non-attendance by offenders or make their non-attendance academic.
And so we come, finally, to the trial of Jacob's muggers. After seven hours the guilty verdict came through. Three weeks later, the police rang me to say that the two boys had each got a four-month detention and training order, which means two months in a young offenders' institution and then two supervised in the community (the equivalent of probation). Despite a career on the bench avoiding custodial sentences, I was pleased.
But when my son and I returned a month later for the witness intimidation trial, we sat around all morning, waiting for the boy to be produced from his institution in Bristol, only to be told at lunchtime that "no one had issued a production order." This time we were invited into court to be told, so I asked the district judge whose responsibility it was to have issued it. "No one," she snapped. The truth was that the very court that had sent him down a month previously, had not thought to send for him.
Finally the witness intimidation trial did proceed at the second attempt and did find him guilty. Another four-month detention order, consecutive.
The whole business had started in July 2001, it was now April 2002. A nine month process during seven of which the offenders were free to re-offend and probably did. Could it have run any faster? The white paper proposed setting up "arrangements for judges or magistrates to agree with the prosecution and defence at the outset what issues are in a case, what action is required, and a realistic timetable for this to be fulfilled." But, as we found in a pilot scheme at Balham, there's little that these conferences can achieve while all the other problems remain.
But at least our trial was over and Jacob and I were free to get on with our lives. Well, not quite. In mid-June, I was notified that one of the convicted was appealing against conviction for robbery. This was a boy who was unwilling to go into the witness box to account for himself on the day, yet now he had the right to demand that we, the victims, turn up at crown court and repeat our evidence. In the event, after I had cleared the day in my diary, they did not go through with the appeal. I can only presume that a barrister opened the brief and said, "not an earthly with this one." So I would add this to the bill: "If you don't give evidence on your own behalf, not only can inferences be drawn (as at present) but you surrender the right to an appeal on any grounds."
Could Jacob's unpleasant experience have been avoided? Not completely. But one simple change would have made it a lot easier?if the two boys had been encouraged to plead guilty in the first place. The evidence against them was overwhelming: not only were they picked out at an ID parade, in court Jacob was able to name the make of yellow shirt his attacker was wearing, based on a label smaller than a stamp. Yet still their lawyer used the mechanics of the law to do everything to prevent the trial going forward. This is standard. The admissibility of the ID parade was questioned; doubt was cast on whether he was actually wearing the yellow shirt at the time (a contemporaneous police Polaroid settled that); every discrepancy between my son's statement and what he then said that day in court was ruthlessly exploited, his incomplete answers taken as signs of doubt rather than merely a 12 year old trying to behave well in court. Given the adversarial system, some of these "tricks" are unavoidable. What matters is to change the system, so that the tricks have less impact and the defendants are forced to account for themselves rather than cast doubt on the victims.
In about eight years on the bench, I can count on one hand the number of times the defendant has produced what I call the "Agatha Christie defence." Rarely do they produce alibis or counter-factual evidence. Often, asked in the witness box where they were at the relevant time, they shrug and say "dunno." Presumably they do the same when instructing their lawyers, who are then forced to attack the quality of the evidence gathering. Time and again, I sit in court and hear submissions on the way the evidence was produced. If this falls, there is no defence. Regular offenders know that there are a host of delaying tactics available to lawyers and every delay, every adjournment for new documents, shakes out a few more witnesses. To offset this, the white paper advocated stronger incentives to plead guilty, something we often talk about in the retiring room. This has not survived into the bill itself which merely tries to discourage some borderline cases from going on to crown court trials by allowing the magistrates to say in advance whether they are considering a custodial or non-custodial sentence.
There are some other good ideas in the bill. A witness will now be able to read his or her original statement before giving evidence. The defence cross-examination often consists only of asking the witness to remember what happened and then making great play of the fact that what they say is different from the original statement, written months before. No magistrate or judge is impressed by this, but still the lawyers do it.
The proposal for a victims' commissioner is also overdue. But it will need money. And too many sentences in the white paper begin with the phrase "As resources become available..." According to the Audit Commission, ?80m was wasted last year on failed trials. Total funding for the CPS is now about ?440m. But how much new money will be pumped in? A first-class system of criminal justice is a foundation of a civilised society?but this is not currently reflected in the allocation of public money.
One of the biggest problems remains the police/ CPS criminal justice units which prepare case papers. Outside London a large number of these units have now been established and in many cases are said to work well. But in London the first one was only established in July 2002. Moreover, while CPS salaries for lawyers and clerical workers may be fine in Newport or Sunderland, in central London they are often not high enough to attract sufficient good staff. Speaking to the inspector who runs the office which sent Jacob's witness summons (in an envelope which did not feature the word "London," let alone a postcode), he told me that the week before he had sacked someone after finding 20 case files squirrelled away in his desk drawer. Not knowing how to handle them, the man had simply hidden them. The white paper concedes that the "CPS has to discontinue 13 per cent of cases passed to it by the police" and "only 55 per cent of contested cases are properly compiled."
Most of the crown prosecutors who appear in front of me do a decent job. What lets them down is the quality of their back-up. As long as the CPS is infected with a buck-passing civil service mentality, the cases will never be properly prepared. And that will remain heaven for defence lawyers who need only stand and remind the court that they were promised document X or transcript Y and win another adjournment. The white paper admits that "at present, there is no clear responsibility for managing the process to ensure the prosecution and defence are ready to proceed" and goes on to recommend that magistrates handle the process. But when we instituted such a process at Balham in 2001, we found no discernible increase in throughput of cases. Without further reform and better funding of the CPS, especially in London, I see little cause for hope.
With so many crimes undetected (police successfully detect only 23 per cent of recorded crime), the few that do come to court must be pursued with vigour. Bring all those to completion (the majority will result in guilty verdicts) and it could have a big effect on offending, especially in the youth court. Make that first offence stick and maybe, just maybe, they will not go on offending. Show them that any court case can be sidestepped by cunning adjournments and pettifogging obstruction and you will give them a license to re-offend until they drop.
