§ 4.3 p.m.
§ The Minister of State, Home Office (Mr. Mark Carlisle)
I beg to move,That this House takes note of the 11th Report of the Criminal Law Revision Committee on Evidence (Command Paper No. 4991).As this is the first time that the House has had the opportunity to debate this important report on the law of evidence in criminal cases, it is appropriate that at the outset I should express the thanks of the Government and of all hon. Members to the members of the committee, which was set up by the then Home Secretary, Mr. R. A. Butler, in 1959.
The Criminal Law Revision Committee has been a Standing Committee to examine such aspects of the criminal law which Home Secretaries may from time to time refer to it. Successive Home Secretaries have been fortunate, as I am sure the right hon. Member for Birmingham, Stechford (Mr. Roy Jenkins) would agree, in having had the services given free and on a part-time basis of a most distinguished body of specialists in criminal law under the present chairmanship of Lord Justice Edmund Davies. The production of any report, and certainly a report of the size of the Eleventh Report, has meant for the committee a great deal of hard and meticulous work. The fact that on this occasion some of the committee's major recommendations have proved to be controversial will in no way diminish our respect for or appreciation of the work which the committee has done.
The report, on its publication in June 1972, attracted a good deal of attention. I recognise that many of its recommendations have been shown to be controversial. Many memoranda and pamphlets have been produced by various interested bodies and we have had the opportunity to pay them careful attention. We listened with great interest to what was said when the report was debated in another place. As was made clear then, and has been repeatedly said by the Government, we do not intend to reach conclusions on the report until we have had the opportunity of considering the views of hon. Members. It is in the light of today's debate and the debate which took place in another 892 place, and in the light of the views expressed in the many representations received by the Home Office, that we shall formulate our proposals.
It was following certain decisions of the courts in 1963 and 1964 that it was decided that a comprehensive review of the law of evidence should be undertaken. I think no one who has practised in our courts would deny that it has grown up over the years as a patchwork of case law and statutory provisions. Accordingly, the then Home Secretary, Mr. Henry Brooke, referred the matter of rules of evidence in criminal cases to the Criminal Law Revision Committee.
The committee's terms of reference were:to review the law of evidence in criminal cases and to consider whether any changes are desirable in the interests of the fair and efficient administration of justice; and in particular what provision should be made for modifying rules which have ceased to be appropriate in modern conditions.That was as long ago as 1964.
In November 1966 the committee was able to publish an interim report covering three aspects—namely, written statements, formal admissions and notices of alibi. The recommendations of the report were implemented by the then Government in Sections 9 to 11 of the Criminal Justice Act 1967. Those sections provided that written statements may be admissible in evidence with the consent of the parties, that any fact about which oral evidence is admissible may be admitted on behalf of the prosecution or the defence, and that when an accused person proposes to raise the defence of alibi he must give advance notice of the particulars of his alibi.
That Act has now been working for some six years. Although some criticisms have been voiced from time to time, there is no evidence to suggest that its provisions are not in general working well. Its provisions have, I believe, been generally accepted. It is right to say that they were a not unimportant first part of the study of the law of evidence which has now been completed.
The main report took eight years to produce. But we must not forget that, as well as the interim report, during this period the committee produced its extremely important report on the law of theft. Further, we should not forget that 893 the committee is composed of men who were serving part time whilst engaged in professional practice.
Those who criticised the report when it was first published went as far as to say that the committee which produced the report was out of touch with the work of the courts in that it included among its members no one actively practising at the Bar. The impression was given that the report had been produced by a group of people who had no experience of the effect of the rules of evidence on practical criminal cases. While it is true that the list of members at the time when the report on evidence was published did not contain the names of any practising members of the Bar, this was very much a partial truth. I suggest that the Home Office can hardly be blamed if those who it appoints to the committee as practising members of the Bar are elevated to the Bench during the period that they are working on the committee. It might be said that it shows that the Home Office picks rather well.
What can be said with certainty is that all the learned and distinguished judges on the committee at the time of its report had had extensive experience as practising barristers in the criminal courts, quite apart from their day-to-day contact with the courts as members of the Bench. Further, the solicitor member of the committee was an extremely experienced practising solicitor doing a great deal of criminal work.
Nor should we yield uncritically to the fashionable view that distinguished academic students of a subject may somehow be disqualified from contributing to the discussion merely because they lack practical experience. Whatever the merits or demerits of this report may be, it is the work of some of the best legal brains in the country, the work of a body with unrivalled knowledge of the criminal law. Its views are entitled to much more consideration and respect than was accorded them in some quarters at the time the report was published. The very fact that it is a part-time committee, with members giving their minds to the problem of law reform at the same time as they were immersed in day-to-day work in the courts, gives added weight to the committee's recommendations.
894 I am not for a moment suggesting that the recommendations ought to be accepted, either wholly or in part, merely on the authority of the committee. Some of the recommendations undoubtedly touch on matters of fundamental importance and are issues which Parliament alone should decide. What I am saying is that the composition of the committee gives its recommendations the right to be treated as a weighty contribution to the solution of an extremely complex series of problems.
In addition, in view of the soundings which the committee had made—when it circulated its preliminary conclusions on the most controversial matters to those bodies professionally concerned and found that the majority of persons and bodies consulted at that stage agreed substantially with its provisional proposals—the committee had some right to think that its proposals represented a far greater consensus of opinion, particularly within the legal profession as a whole, than the immediate reaction following publication of the report may have implied.
There can be little doubt or dispute that the law of evidence is overdue for reform. It is one of the most complex areas of the law, encumbered by rules and precedents which are frequently difficult to interpret. Many of our strict rules for the exclusion of evidence in criminal cases were, as the committee pointed out, framed in conditions far different from those applying in our criminal courts today. They were framed at a time when the accused person was seldom represented, when there were few rights of appeal against conviction, and above all when, prior to the Criminal Evidence Act 1898, an accused person and his wife were, in many cases, not even permitted to give sworn evidence in their own defence.
The question to which the House should address itself, the question which the legal profession has to consider, is whether, despite the changes in conditions in the conduct of criminal trials that have occurred, it is still necessary to conduct those trials in accordance with rules of evidence promulgated as a necessary, even if inadequate, protection against injustice at an earlier stage in our history.
Much of the comment on this report has been set in the context of the rate 895 of acquittal in jury trials and in the context as to whether the rules of evidence in themselves account to any significant degree for the fact that about one person in two of those pleading not guilty in contested trials in the Crown Court is acquitted. It is true that the committee referred in its report to the views expressed to it on this matter. The report refers in relation to this to the question of sophisticated professional criminals.
Leading from this, some commentators have gone as far as to suggest that the main purpose of the committee's recommendations is to make it easier to convict such professional criminals, regardless of the consequence to the rights of the innocent individual. Such a view arises from a misreading of this report. The committee, as I see it, was not unduly influenced by the increasing sophistication of the criminal underworld. This factor, to which it referred, was only one of a number of points which the committee put forward to illustrate how the position had changed over many years.
The chief grounds on which it proposed a removal of some of the restrictions on admissibility were twofold. The first was that there was no clear reason why some of those restrictions should ever have existed and, secondly, that the proposals would lead to a simplification of the law. As it said at the beginning of its report:ideally all evidence should be admissible which is relevant in the sense that it tends to render probable the existence or non-existence of any fact on which the question of guilt or innocence depends.The committee went on to acknowledge that relevant evidence should nevertheless be excluded if it might be too prejudicial to the accused. We should remember that the committee's study was the first major review of the law of evidence in criminal cases this century. Its authors were chiefly motivated by the desire to propose what was in principle right and proper.
The Government have reached no conclusions upon the report and if, in my remarks on the details of the report, I make any comments on the merits or demerits I hope that they will be accepted as perhaps the occasionally permitted personal comments of someone who has practised in the criminal courts rather 896 than the considered opinion of the Home Office.
I should like to channel today's debate along lines which I hope will enable hon. Members to concentrate on those areas of the report where comment would be most fruitful. Such recommendations in the report fall into four groups. The first is that group which is clearly favourable to the accused—those recommendations and proposals which have drawn little adverse comment and of which I mention two, namely the comments on evidence of identification and on evidence as to previous convictions as it relates to the cross-examination of witnesses for the prosecution.
Concerning evidence on identification, the committee proposes that where a case against an accused man depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence allege to be mistaken, then the court should warn the jury of the substantial need for caution before convicting upon such evidence. The committee held mistaken identification to be by far the greatest cause of actual or possible wrong conviction.
The committee has, therefore, recommended for the first time that there should be a statutory obligation upon the judge to warn a jury of the dangers inherent in such evidence. If I may commit myself to a personal comment, it would be that one cannot be, or have been, a Minister in the Home Office, and involved in discussions from time to time on arguing the rights or the doubts of any particular conviction, without appreciating the importance and the nature of that proposal. I believe that it is allegations based on the wrongful identification of an individual witness that give rise to some of the searching problems with which those involved in the criminal side of the Home Office have to deal.
On the question of previous convictions and the imputations on character witnesses for the prosecution, the committee has proposed a substantial support of the defence over the matter of an accused's previous convictions. At present any imputation made against the character of a prosecution witness by the accused may result in the latter's previous record being brought before the court. As anyone who has practised in the courts will know, there are not infrequent occasions where an accused cannot put forward his 897 defence without at least by implication making such an imputation.
In the most recent judgment on the matter—that of Selvey v. the Director of Public Prosecutions in the House of Lords in 1968—it was ruled that unless what is said amounts in reality to no more than a denial of the charge, and except in rape cases where the accused alleges consent, the accused may be cross-examined about his previous convictions, if the imputations are designed to show the unreliability of the prosecutor and his evidence and also if they are necessary to enable the accused to establish his defence.
I am sure that there is no practising lawyer in the House who will not from time to time have been put in the invidious position of considering whether certain questions necessary to a defence can safely be put to witnesses without risk to the character of his defendant. Under the Committee's proposals only imputations against a witness whose main purpose was to raise doubts as to the latter's credibility would put the accused's record in issue. The accused would, therefore, be free to put forward a defence which might impute misconduct on the part of a prosecution witness without fear of being forced to disclose his own previous misconduct.
The House should remember that this group of recommendations is clearly advantageous from an evidential point of view to the interests of the defender.
Secondly, large areas of the report, and of the attached Bill, are apparently completely non-controversial. I will merely list them. There are the hearsay clauses which relate to computer records and business and public records. There are also clauses about the opinion evidence of experts and many technical details about cross-examination. None of these has brought any measure of disagreement. In that group I would suggest that the removal of the right of the accused to make an unsworn statement from the dock, although it has been in part challenged, has generally been accepted, as equally have the committee's recommendations about competence and the fact that a spouse should be able to be a competent witness in all cases against her husband. I emphasise that I know that at the time there was some misunderstanding, but the recommendation of the committee is not that she 898 should be a compellable witness against her husband in all cases; merely that she should be competent when she wished to give evidence for the prosecution.
The third area has recommendations which cover a part where undoubtedly confusion exists in the present law-confusion which demands review but where the recommendations of the committee are controversial in nature. I take only two—that on hearsay and on confessions. The law of hearsay, first, is generally recognised to be one of the most confused parts of the law of evidence and the one most in need of reform. There are obvious dangers in admitting statements made by persons who cannot be produced before the courts. At the same time there have been notorious cases in which the most compelling evidence was hearsay in character and which had to be excluded by the strict rule against it.
The Criminal Law Revision Committee has sought to produce a rational code to replace the existing welter of anomalies. Many of its proposals have been welcomed. On the other hand, it is an area where some of its proposals have met the sharpest criticism. It may well be urged that in some respects the committee has gone too far. I make it absolutely clear that the Government will pay the most careful heed to the criticisms that have been made. However, I have little doubt that a measure of rationalisation and simplification of the law of hearsay is an urgent need. I hope that in the light of the comments we have received it may be possible to bring forward proposals to meet it.
As for confessions, the present law is that for any confession to be admissible it has to be voluntary, in the sense that it has not been obtained from a person by fear of prejudice or hope of advantage. All of us involved in the law know the strictness with which that rule has from time to time been applied and the effect which it has had. What the committee recommends is to narrow the scope of what shall count as a threat or an inducement—to such threats or inducements as would be likely, in the circumstances existing at the time, to render the confession unreliable.
Even those who criticise that proposal admit that threats or inducements may well be harmless and not tend to render 899 doubtful the truth of a confession. Surely the Committee is right to concentrate the minds of those concerned in these matters—not that merely a fear of prejudice or hope of advantage has been held out, but what effect that advantage or that fear has had on the reliability of the confession. I am bound to say—this is about the one purely personal remark I propose to allow myself—that I find the Bar Council objection to this provision somewhat inexplicable, other than, perhaps, because it is steeped in the natural conservatism of the profession to which I belong.
I turn finally to what are, in many ways, those two proposals which have given rise to most criticism. The first is the evidence of previous convictions and the second is the accused's right to silence.
On the first aspect—the circumstances in which previous convictions should be admitted—the committee said that it had… proved far the most difficult of all the topics which we have discussed.But the nub of it is to be found in Clause 3(4) of the committee's draft Bill, which would have the effect of making it somewhat easier in certain cases to bring the accused's previous convictions before a jury. It is suggested that, where the accused admits the act but denies criminal intent, evidence of other conduct by him which tends to show in him a disposition to commit the kind of offence charged should be admissible for certain particular purposes. The chief of these would be to show that he possessed the state of mind necessary to make him likely to be guilty in respect of that conduct.
It is difficult to estimate what effect such a change in the law would have. Some recent studies have shown that, in the majority of cases, the accused admits that he was present at the scene of the crime but produces or attempts to produce an innocent explanation. It is then to be expected from other studies that in these cases, as in other cases, some at least of the accused will have previous convictions of a kind which would then become admissible under the committee's proposed new rules. We have no evidence of the effect of such a change, but I think that the important question to ask is whether the new rule would be fair. I am conscious that this provision has been 900 strongly attacked by the Bar Council, amongst others, and by many noble Lords who spoke in the debate in another place, and again it is an aspect on which we should like the views of the House of Commons.
I turn now to that provision in the proposals which has given vent to the greatest controversy. This is Clause 1 of the committee's draft Bill and its effect on what has been defined briefly as the accused's right of silence. It is important fully to understand just what the committee recommends. The clause proposes that if, at the time of interrogation or when he is charged, the accused fails to mention to the police any fact which he could reasonably be expected to mention and on which he subsequently relies in his defence, the court and the jury may draw such inferences as appear proper, and that such a failure to refer to the matter at an earlier stage might amount to corroboration of prosecution evidence to which that failure is material. It follows from that proposal that the committee has also recommended various changes in the judges' rules and the wording of the police caution.
In view of the extreme degree of some of the criticism which has been made against this proposal, I want to make three points. First, it relates only to those matters which the person could reasonably be expected to mention; secondly, the inferences that can be drawn are only those as appear proper in all the circumstances; thirdly, without in any way detracting from the importance of this major recommendation, I suggest that it perhaps does not involve quite so great a change in our law as some people have implied, because at present, while a judge may not suggest to the jury that it should draw an inference of guilt from the defender's silence, or that they should "use their common sense" about it, or words of that nature, none the less he may say that the fact that the accused has not mentioned his story before is something which the jury may take into account when deciding the weight which is to be given to his evidence in court.
§ Mr. Clinton Davis (Hackney, Central)
Is not a fourth important point the fact that all these matters were very seriously canvassed before the United States 901 Supreme Court in the Miranda v. Arizona case, and that that very distinguished body came to a conclusion diametrically opposite to that of the Criminal Law Revision Committee on this issue?
§ Mr. Carlisle
There are many important aspects of these recommendations, and obviously one takes account of what has been said by the United States Supreme Court. I merely said that there were three points that I should make on the proposal to set it into perspective without in any way detracting from its importance.
Another of the committee's proposals makes similar provision so far as the trial is concerned, and allows the jury again to draw an inference from the fact that the accused refused to give evidence. It follows, therefore, that it allows the prosecution, as well as the judge, to comment on that failure, and, taken with the earlier provision in Clause 1, it allows the prosecution to cross-examine on any failure to give an explanation at an earlier stage or to invite the jury to draw its inference from that fact.
As I have said, we have had a great deal of comment on this matter. Some of the comments have been totally opposed, some wholly favourable, and some would accept it but only in certain circumstances. Obviously, there fore, we are anxious to hear the views of hon. Members.
Perhaps I may pose two questions. First, is it unreasonable that, when a man keeps silent when being questioned by the police and then goes into court and offers an explanation, he should be asked and challenged as to why, if the explanation is true, he did not give it before? Would an innocent man have anything to fear from such a situation? Alternatively, is it the case that people, when interviewed by the police in circumstances which are probably wholly strange to them, are quite likely, although innocent, to become nervous and tongue-tied to a degree, and that it would therefore be unreasonable to draw any inference from their failure to offer any explanation at that stage?
§ Mr. Emlyn Hooson (Montgomery)
Is not the point here the practical one that a man may keep silent, not because he is protecting himself, but because he is pro 902 tecting someone else and there may be other constraints on him? He may not give evidence for that reason. This was so in a case I handled. If an adverse inference was drawn in such a case, it would be a wholly unjust result.
§ Mr. Carlisle
There may be many reasons for a man choosing to remain silent which may not relate in any way to his guilt. But the weight of much of the argument is in the way I have put it. First, is it unreasonable that, when a man keeps silent when being questioned by the police and then goes into court and offers an explanation, he should be asked and challenged as to why he did not give that explanation earlier? Would an innocent person have anything to fear from such a situation? Secondly, do the very nature of the police investigation and the circumstances in the police station create a situation in which it is unreasonable to draw any inference from the failure of the individual to give any explanation at that stage? We expect to hear differing views from hon. Members on this issue.
I venture my own personal view. I wonder whether this question is quite so much one of black and white as some critics have suggested, or whether there is not perhaps a halfway house. I took note of the Law Society's evidence, asking whether there is not perhaps a major distinction between cross-examining an individual in the course of his giving evidence about his failure to offer an explanation at an earlier stage, with his opportunity to explain that failure to the jury, and one's invitation to the jury to draw what inference they think proper from the fact? Might one not accept that side without necessarily going so far as to say that the refusal to answer questions earlier should amount to corroboration of the case for the prosecution as it is being presented? One can draw a distinction between the effect of that failure to give evidence being corroboration and being a matter from which the jury can draw its own inference.
This issue raises important questions about police procedure in interviewing and interrogating people, to which the committee gave considerable thought. The committee looked at the arguments for and against a system of monitored or supervised interrogation. It did not favour supervised interrogation. The committee 903 considered carefully the arguments for and against the tape recording of interrogations but without reaching a unanimous conclusion.
The minority of the committee argued that all interviews in police stations in the larger centres of population should be recorded so as to provide a safeguard both to the police, who may be subject to wild accusations of misbehaviour, and to the person interviewed, whose account of an interview would rarely be accepted if it conflicted with that of the police. The committee thought that Clause 1 should be suspended until that was done.
The suggestion of the tape recording of interviews in police stations is in many ways an attractive proposition. Those who practise in the criminal courts will be aware of the frequency with which defendants attack "the verbals". Sometimes the attack may be justified and sometimes it is the only possible defence. I have no doubt that an impartial mechanical record of what was said would be of value if it could be satisfactorily achieved.
However, the majority of the committee drew attention to several important difficulties and disadvantages. We cannot be sure how far the recording of interviews would reduce the effectiveness of criminal investigation by making people less willing to answer questions. The effect that tape recording in police stations only might have on the credibility of non-recorded evidence of interrogations again cannot easily be assessed, but it might be considerable. Even if there are tape recorders in police stations, there will be other occasions when evidence is given which is not tape recorded. Again, quite elaborate arrangements might be needed to exclude parts of recordings which could not be admitted in evidence or which were clearly wholly irrelevant. Finally, foolproof safeguards against tampering would be essential. All these drawbacks are of substantial weight.
Nevertheless, there is a widespread view, which I share, that we should look further into this question to see what is practicable. If the difficulties and disadvantages can be overcome—and I do not wish to underestimate them—the tape recording of interviews could be in the 904 interests of the accused and, equally important, could serve to safeguard the police against unwarranted allegations. The recommendation made by the majority of the committee was that experiments should be made to see how far the use of tape recorders in interrogations might be helpful. The committee was not, however, able to consider all the practical problems of the kind I have mentioned, or to suggest how they should be solved.
The next step, in the Government's view, must be to carry out a detailed examination of precisely how an experiment could be carried out. In the language of technology, we need a feasibility study. Before any experiment can be set in train we need to be satisfied that we have worked out how to tackle all the practical and procedural problems that might arise, not only for the police but also for the courts and the legal profession.
I am glad to be able to tell the House that chief officers of police have agreed to participate in such a study of the feasibility of using tape recorders on an experimental basis. It is my right hon. Friend's intention to set up a steering committee to undertake such a feasibility study. We propose to invite to take part representatives of the Bar Council and the Law Society, together with representatives of the courts and the police. There will need to be a thorough and careful examination of the many difficulties involved, and it would be wrong for me at this stage to forecast how long that study will take.
I am conscious that I have spoken somewhat lengthily in opening the debate, although I am equally conscious that my speech compares in length of time with many of those made on this matter in another place. I have attempted to touch on some of the more important recommendations of what is undoubtedly an extremely important report, and I have attempted to set them in perspective, and I have tried to pose some of the questions that I believe must be borne in mind when deciding one's attitude to the report. The Government will listen with interest to the contributions of hon. Members.
The subject is one of intrinsic importance. It affects the whole relationship 905 between those who may be accused of criminal activities and the judicial process. It concerns matters on which we need to be sure that any changes decided upon are right. It concerns matters which cross party views in the House and outside. I hope that the contributions that we shall hear in the debate will assist the Government in coming to the right conclusions on this matter.
§ Mr. Ernie Money (Ipswich)
On a point of order, Mr. Deputy Speaker. I shall be grateful for your ruling on this matter. During his speech my hon. and learned Friend the Minister of State adverted, as was almost inevitable in the circumstances, to the debate which took place in another place on Wednesday 14th February 1973. It is inevitable that during our debate in this House a good deal of our deliberation will turn on matters that were considered in another place. It is the tradition that the only views which are expressed in another place that may be quoted in this House are those expressed by the Front Bench. In the particular and rather special circumstances of this debate, I should be grateful for your ruling, Mr. Deputy Speaker, on whether the views expressed by noble and learned Lords from the cross benches will be admissible during the debate?
§ Mr. Deputy Speaker (Mr. Oscar Murton)
The Chair considers that it would be in order for hon. and right hon. Members to refer to such matters as illustrations in the course of the debate.
§ 4.50 p.m.
§ Mr. Alexander W. Lyon (York)
Despite the distinction of the committee which produced the report, what we are doing here today is burying Caesar, not praising him. The Minister of State has suggested that this is a sounding debate and that our opinions will be considered when the Government make decisions about the report's recommendations. But anyone who has seen the wave of criticism that has followed the committee's recommendations must find it difficult to believe that any substantial change in the law will follow.
It is true, as the Minister said, that the report contains some good recommendations. I hope that the good will not be interred with the bones of Caesar, but I fear that when one sees the way in which the committee got it wrong on the essen 906 tial balance that ought to follow in the criminal trial, one must have doubts about almost every aspect of it.
I turn to make some fairly short observations on the recommendations in detail, because if I am right it would be a work of supererogation to deal at length with any of the recommendations. I want to try to understand why a committee as distinguished as this should have got it wrong. On the committee there were eight judges, three professors of law, the Director of Public Prosecutions and one legal adviser to the Home Office. None was barrister at the time that it reported, but some of the judges who sat on the committee were in their day distinguished advocates who had experience at the criminal Bar.
None of us who practises in the courts would wish to minimise the distinction of people such as Lord Justice Edmund Davies and Mr. Justice Lawton. We are dealing here with people who know what they are talking about, and I do not wish, in any criticism I may make of them, to suggest otherwise. If I may add a personal note, I learned my jurisprudence at the feet of Professor Glanville Williams and I doubt whether there is a more lucid mind in the law in this country. I always note with interest anything that he says on law reform. I am happy to observe that he was in a minority on a number of the recommendations, although he approved of the general thesis of the report.
The essential question is whether we needed to change the criminal trial in England in the ways that have been recommended. It is true that the law of criminal evidence is a patchwork of case law and statutory recommendation, but so is much of English common law. So what is the pressing need now for change?
We must remember when advocating change that the English criminal trial and the right of trial by jury are fundamental concepts in our understanding of what we loosely call the English way of life. It is part of our approach to the relationship between citizen and State that if a person gets into difficulties with the police there will be a fair examination of the evidence against him and of his response to it. Therefore, it is no wonder that there should be such widespread public concern about recommendations which are 907 as fundamental in their changes as these are.
When the committee disparaged the suggestion that some of its recommendations might be considered unfair and asked what people meant by fairness in those terms, it underestimated the feeling of the man in the street, as well as the lawyer practising at the Old Bailey, about what is fair. I can give an example, from my own experience. In a recent criminal case I had occasion to make some imputations upon the character of one of the prosecution witnesses. I was immediately met by an application from the prosecution to cross-examine the accused person about his previous convictions. The application was made when the jury was out. It was granted, despite my objections, and in due course the points were put to the accused. The look of bewilderment that spread over the faces of the jury was immediate. Their response to my not objecting was clearly hostile.
When, in the course of the case, I explained why this had taken place and urged that, none the less, though it was strictly within the rules of law, it was wholly unfair, the jury clearly took the point. Although the case against the accused was strong, and though he had previous convictions, the jury refused to convict. There is an essential feeling in the British mentality that one has to act fairly in these matters because so much hangs on the consequence of a conviction.
Therefore, I approach this matter from that point of view. Why change? There are two major arguments. The first is that on which the committee proceeded—that it is logical to change and that it is logical in a criminal trial to allow in any relevant evidence unless there are good grounds for excluding it. One must basically, therefore, proceed on the basis of allowing in evidence and reducing to as few as possible the number of exclusions which will be permitted.
That was clearly stated by the committee in paragraph 14 of its report, which says:Since the object of a criminal trial should be to find out if the accused is guilty, it follows that ideally all evidence should be admissible which is relevant in the sense that it tends to render probable the existence or non-existence 908 of any fact on which the question of guilt or innocence depends.The language of the law, said Oliver Wendell Holmes, is experience and not necessarily logic. To substantiate the argument, I will use as an example the controversial recommendation about the right to silence.
The Minister says that if the police have reason to believe that a man is guilty of a criminal offence, and the matters on which they base that suspicion are put to him, it is right that he should be called upon at that point to give an explanation. In a memorandum of dissent to a report of Justice some years ago, the hon. and learned Member for Northwich (Sir J. Foster) made this point. In those circumstances, the only one who may know what happened is the accused. It is logical to ask him to give his explanation at an early stage in the investigation so that the matter can be cleared up or can proceed.
As the critics of the report have said on a number of occasions, there are two basic reasons why logic in this case is a poor guide. The first was stated most convincingly by the Criminal Bar Association in its memorandum, a very powerful argument in view of what the Minister of State had to say about the Bar. It says:We would add the obvious: the great majority of people who fall foul of the criminal law, or who are suspected of doing so, are inarticulate, or weak, or fearful, or inadequate or deprived; the facts surrounding an alleged crime and the intentions and motives of the persons involved may be highly complex, most people find it difficult to sort out the relevant facts in a situation even when assisted in the friendly atmosphere by their own solicitor.Those of us who have ever seen a brief prepared by a solicitor know that the proof often leaves out some of the most relevant facts that ought to have been included. I return to the quotation:even a simple road accident may afford seemingly impossible complications requiring thought and time properly to resolve.That must be so. The apparently logical argument that the man who knows most about it ought to be called upon to give an explanation may fail by the inadequacy of the personality of the person concerned.
The best example of that is surely the case of Timothy Evans. Timothy Evans gave two confessions to the police. It is now accepted on all sides—despite the 909 report of Mr. Justice Brabin—that Timothy Evans was not guilty of any of the offences with which he was charged. That was one case of an innocent man being hanged. Why did Evans give those two confessions? The reason largely must lie in the inadequacy, about which we know, of the personality of Evans. He was the kind of man who would be overawed in a police station. He made a confession but he might very well have said nothing at all in view of his inadequacy. Yet he was wholly innocent, confused and innocent. It is that kind of person the rules about the rights of silence are designed to protect.
The other reason why logic may not always be the right course stems from our experience of what goes on in a police station. Here I tread with some care. I do not want it to go forth from this House—certainly not from myself—that any of us would say that the practice of police officers is always bad—quite the contrary. But that the practice of police officers is sometimes bad is undeniable and we have plenty of evidence to substantiate that fact. Where I fear it is most widely in error is in the area where a good and honest police officer feels that he has got the man who committed the offence but he has not quite got the evidence that would be admissable to prove that he has the right man. In one sense he knows that he has got the man. What is meant by "knows" is that he strongly suspects that he has got the man. It satisfies his mind and therefore he wants the evidence to satisfy the court.
I might have some temerity in putting forward that argument if it were not contained in the report. Paragraph 52 sets it all out in detail and anybody who wishes to pusue the argument can look for it there. It is clear that the minority were doubtful about the majority recommendation in relation to the right to silence for this very reason, and justifiably so.
I will come to the question of Sir Robert Mark in due course but much of the thinking in the Dimbleby Lecture was based on the assumption that a 'copper" knows that the man is guilty and yet the man is acquitted. Therefore, there must be something wrong with the criminal trial.
Nobody, except the person present, knows what we have to try to do in the 910 process of police investigation and criminal trial to find out whether it is proved that that happened. The rules of evidence are designed to ensure that so far as possible we can prove it without any unfairness to the accused or to the community as a whole.
I do not regard the rules of evidence as being merely a game which lawyers indulge in for their own enrichment, as the committee at one stage was apparently suggesting. I regard the rules of evidence as having grown up precisely to get to the point which the committee itself said was the object of criminal trial—namely, to elucidate so far as possible the truth in order to discover whether the accused is guilty of the offence which is alleged against him. I am not so preoccupied with logic.
The second argument is put forward in the report but, as the Minister said, the report did not use it as a strong argument. Indeed, the whole reason for considering this area was different. It has been strongly suggested by Sir Robert Mark and a number of other police officers, and also by sections of the Press, that too many people are getting off and therefore there is something wrong with the criminal trial.
I have had the advantage of spending an hour and a half with Sir Robert discussing precisely that aspect of the matter. I must pay him the tribute which almost everybody I have met pays to him, that he must be one of the most remarkable police officers that this country has ever had. He has an intelligent and extremely stimulating mind and I found my 90 minutes with him abrasive but rewarding.
However, I still feel that he suffers from that basic flaw in his reasoning. As he said in his Dimbleby Lecture, a failure rate of 50 per cent. shows that we cannot always expect to convict the guilty, or never to prosecute the innocent.But in my opinion a failure rate of one in two is far too high. I doubt whether it would be tolerated in many other kinds of activity, so I think it's something that certainly needs looking into. In the absence of any reliable research no one can say with any certainty why the acquittal rate is so high.Personally, I do not think the acquittal rate is necessarily high. The figures produced suggest that it is no more than about 15 per cent. of the total number of people who are proceeded against in this country. If it is as high as 50 per cent. 911 of those who plead not guilty, one still has to bear in mind that the number of people who so plead is only 30 per cent. of the total who are proceeded against. Seventy per cent. of people plead guilty and are dealt with on that basis.
Inevitably, those who plead not guilty are usually those against whom there is not a clear case, and it would be unusual if most of them were convicted when the matter came before a jury. The likelihood in those circumstances would be that there would be an even higher rate of pleas of guilty.
In his address to the Society of Public Law the Minister of State suggested that it was not particularly helpful to consider the statistics of the people who were convicted in this way, or of people who were acquitted, because it did not necessarily follow that any substantial inference could be drawn from the fact that a man who was acquitted had or had not any previous convictions. We were referred to the example of Mr. A1 Capone. Most people, however, think that it would be helpful to know whether Sir Robert has got it right. If he has, there may be some justification for changing the rules of a criminal trial.
Since Sir Robert first raised the matter, there have been some interesting researches into the subject. The Oxford Penal Research Unit carried out a study on a small sample of cases in the Oxford area. But published in The Guardian today is the synopsis of a much wider research programme, undertaken by Mr. Michael Zander of the London School of Economics. The full results of that research will be published in the Law Review as soon as the printing situation allows.
However, Mr. Zander has kindly provided me with a copy of his article. For the purposes of the argument and to have it on record, I shall quote Mr. Zander's conclusions, which he reached on the basis of the total number of cases he considered at the Old Bailey and the Inner London Crown Court. Those two courts are the busiest in the country and I am sure that it would be widely accepted—certainly by Sir Robert—that they deal with some of the most serious crime in the country. The study covered 100 cases 912 in which there was an acquittal at the Old Bailey, 100 cases in which there was an acquittal at the Inner London Crown Court, and a substantial number of cases in which there were convictions. The total number of cases considered was 1,435. The conclusions were these.
First, Mr. Zander considered those who pleaded "Not guilty". His first conclusion is:The rate of not guilty pleas seems to be unrelated either to the seriousness of the offence or of the anticipated penalty.He went on:The majority of accused persons in the higher courts plead guilty. This is true even of those with the worst records.Mr. Zander then considered the acquittal rates in the light of the allegations made by Sir Robert that not only was it disturbing that about 50 per cent. were acquitted, but that this was allowing serious professional criminals to get away with it. Mr. Zander goes on:The acquittal rate as a proportion of the total number of defendants is around 15 per cent. and as a proportion of those pleading not guilty is between 35 per cent. and 50 per cent. depending on the court or area.One interesting finding was that whereas the Oxford study had found that 50 per cent. were acquitted, the inner London study showed that about 40 per cent. were acquitted. On the whole, 38 per cent. at the Old Bailey and slightly fewer at the Inner London Crown Court were acquitted.
Mr. Zander continues:There is no evidence that courts which deal with the most serious offences or offenders have a higher acquittal rate than others—if anything, the reverse is true. The overwhelming majority of defendants in all offence categories are convicted—either after a guilty plea or on the verdict of a jury.Mr. Zander then looked at the effect of having previous convictions in the light of the suggestion that it was the professional criminal who was able to get away with it. He came to the conclusion that the proportion in the higher courts of all defendants with a prior record was approximately 70 per cent. But a significantly higher proportion of those convicted had previous convictions than those who were acquitted. He said:Equally a significantly higher proportion of those with no prior record are acquitted than of those with a prior record.913 That is the most interesting finding of the lot—that where there is a previous record, an accused person is more likely to be convicted than if there is no previous record. As Mr. Zander remarked:The worse the record, the lower the acquittal rate.
§ Mr. Charles Fletcher-Cooke (Darwen)
To what extent does the hon. Gentleman think that that is due to the fact that the modern sophisticated jury may realise that when a man's record is not put in and there is no reference to his character, it means that he has previous convictions?
§ Mr. Lyon
That may be something to do with it. It is also something to do with the atmosphere of the trial. I was coming to that in due course, so perhaps I may leave it until later. It is a matter which some critics fail to understand.
Finally, Mr. Zander went further. He asked permission of the commissioner, who had given his blessing to this study, to investigate the reasons for the acquittal, so far as the police or the lawyers could determine. Unfortunately, the commissioner could not give his consent in relation to the police, but he asked the lawyers who were involved. In 58 per cent. of the cases where there had been an acquittal, he obtained the opinion of both the defending and prosecuting counsel. In some other cases he obtained only one or the other, but there were comments from approximately 70 per cent. of the cases.
The interesting thing was that, just as in the case of the Oxford study, they found that the perverse verdict—the one where the jury had flown in the face of the evidence—was very rare. Almost a third of the cases were thrown out on the direction of the judge. One must, therefore, assume that it was a proper case to acquit. Of the other two-thirds, a substantial number were cases where the prosecution had failed to produce sufficient evidence for the matter to be decided against the accused.
In a great many other cases—in my experience, most of the cases, the prosecution are met with criticisms of the witnesses or the evidence that they give which they are unable to confute satisfactorily to the jury. The jury, therefore, feels that the case has not been proven. The perverse verdicts were reduced to about only 6 per cent. of the 914 total, which was roughly the same as the Oxford study experience.
In those circumstances, can it be said that the English criminal trial is failing to do the job which was set out for it by the committee, namely to convict the guilty and to acquit the innocent? According to this research and a good deal of other comment which has come in since the committee reported, where there is an acquittal there is usually reasonable ground for acquitting.
In those circumstances, it is about time that the police recognised that merely because they have said that a man is the one whom the police think to be guilty, the matter is not ended there. If 12 men good and true have heard the evidence fairly presented on both sides, and have come to the conclusion that they are not satisfied, it is right that we should leave the matter there. It may be that some guilty men go free. I, for one, would prefer that than that any innocent man should be convicted. I can think of nothing worse than to have been convicted and possibly sent to prison for an offence that one did not commit.
On the occasions when I have defended men whom I thought were innocent and I have felt that they might be convicted, the strain on me has been enormous. If they had been convicted, I should have felt uneasy about our system. I am happy to say that in cases where I felt that way, they were acquitted. Perhaps it showed on my face. Therefore, on the general thesis of whether we need radically to reconstruct the English criminal trial, I am not at one with the majority of the committee.
I said that I would comment on the various detailed recommendations, though I do not want to hold up the debate for long. I wholly subscribe to the recommendation about corroboration of identification—if anything, I think that it is too slight. Merely to tell the jury that it is dangerous to convict is not to suggest that it cannot convict, and although if one man is absolutely sure that may be enough to persuade the jury, I feel uneasy about such a conviction. I do not find any difficulty in the recommendations about the introduction of previous convictions of witnesses for the prosecution.
On the matters which the Minister said were not very controversial, which he classified in his second category, I would 915 not be sure that the recommendations about hearsay—certainly on the general recommendations about hearsay—are not controversial. I could accept the recommendations about hearsay in relation to specific kinds of evidence.
§ Mr. Carlisle
I did say that some of the provisions on hearsay were probably the most controversial of all, but I also said that there were others which could be grouped with those which had drawn no adverse comment whatsoever.
§ Mr. Lyon
I accept what the Minister said. It was not entirely clear. There was one item in the list on which I am not quite as complacent as most of the critics. The Minister is right in saying that there has been very little criticism, but I find some difficulty on the question of competence and compellability of spouses. I recognise, and the Minister is right to remind us, that what we are concerned with here is not compellability, where the recommendation for further compellability goes only slightly wider than the existing law, but competence. Is a wife competent to give evidence for the prosecution if she wants to? The case for the committee was that if a woman wants to give evidence against her husband why should she be stopped?
There seemed to me to be two possible arguments—first, that it might be very helpful in quelling criminal intentions that a man should be persuaded to discuss his possible future criminal activities with his wife and that she may be a restraining force. If the criminal realised that at some future date, when relations between himself and his wife might not be as good as they were, she could be called as a prosecution witness, he might be the more reluctant to discuss his affairs with her. It is a small point but it may be helpful in restraining some criminals from going that far.
Secondly, even if relations between a wife and her husband are not bad, by the time the trial comes along she is then, if the police ask her to give evidence for them against her husband, under a dual strain. One of the reasons for the introduction of the Bill was that it was not thought right for a wife to be put under that kind of pressure to give evidence against her husband when she had to consider her public duty. There are 916 many wives of criminals who feel some sense of anguish that their husbands should have gone so far as to commit criminal offences. They know that they can give some evidence against their husbands. In those circumstances, there would be some strain upon a wife and perhaps upon her relationship with her husband.
The Minister dismissed that on the ground that we were discussing competence rather than compellability. But I fear that he minimised the kind of social pressure that there would be upon a wife to give evidence for the prosecution because it was her public duty to do so. I am not at all sure that that is the right way. But I accept that my doubts are minority doubts on this argument and that others have accepted it.
I agree with the Criminal Bar Association about hearsay, but it is a matter that should be reconsidered by the Law Commission. It would have been better if the Criminal Law Revision Committee had proceeded in the same way as the Law Commission. It is all very well to say that it put its tentative proposals to a number of interested bodies, but it did not do it in the same way as the Law Commission—by producing a Green Paper open to comment by every organ of opinion.
In the light of our experience with the Law Commission perhaps we should abandon the whole idea of the Criminal Law Revision Committee and widen the Law Commission so that it may take in professional advice on criminal law. It should proceed in the same kind of way, taking advice from every sector, including the judges, issuing its general proposals as a Green Paper so that they may be discussed.
If that had happened in this instance, we should not have had anything like the amount of controversy. I hope that will happen in the instance of hearsay. The recommendations are complex and not necessarily the best for dealing with the situation. I much prefer further consideration by a body like the Law Commission.
I am not persuaded by the arguments on confessions, but I accept that confessions are a difficult area of the law of evidence and that we are in something of a mess. Here, again, perhaps the Law Commission should look at this matter 917 afresh in the light of the recommendations. I have already said what I wanted to say about the right to silence.
On the question of previous convictions, I cannot understand why it is regarded by the committee as being more cogent that a man has previous convictions in relation to his intent than in relation to the actus reus. It recommends that if a man agrees that he was at the scene of a crime, but he says that he was there for an innocent reason, it is right that one should be allowed to bring in his previous convictions against him. If the prosecution says that a man was in a yard in order to break into a building, but he says that he was in the yard in order to urinate, why should it be more helpful to the jury to know that his previous conviction was for shopbreaking? Even shopbreakers occasionally have to urinate. It may be that that was the honest reason for his being in the yard.
The jury may accept his explanation, but why should the added burden be put upon him because he disputes the intent? There seems to be no difference between the intent and the actus reus. Therefore I would not be prepared to accept that wider extension of the law.
I am afraid that, like the Minister, I have spoken for long enough. We can plead in mitigation only that neither of us has spoken for the length of time of the learned Law Lords in the other place. In the light of the sustained criticism from every source, the Minister in his address to the Society of Public Law and possibly Lord Widgery and the Lord Chancellor have been the only sources of comment favourable to the controversial opinions against them.
§ Mr. Lyon
The Minister says that he is in good company against them. I am in much more distinguished company—a rare feat for me. But the fact that the Minister and I are discussing this matter, rather than the Home Secretary and my right hon. Friend, suggests that this report will not see the light of day in sustained recommendation.
§ 5.29 p.m.
§ Mr. Charles Fletcher-Cooke (Darwen)
Although I do not adopt the extreme conservative view expressed by the hon. Member for York (Mr. Alexander W. Lyon), who has just spoken about the 918 glories of our procedure, I agree largely with his approach, for slightly less idealistic reasons. I look at the matter rather more commercially, and I would not bargain away the right of silence, the right to have one's record kept secret, and all the other suggestions that the report makes for such a small mess of potage as the report offers.
The trouble with criminal trials today is that, because the police are so overstretched, they rely more and more on oral confessions and admissions and less and less on old-fashioned detection. I have seen this happen rather remarkably in my lifetime. Before the war I was a humble practitioner at the criminal Bar and then for 25 years never went into the criminal courts. Now in my old age I never seem to be out of them.
During those 25 years the enormous difference in the mode of trials has had a great impact upon me. In the old days the police regarded detection as their job, and they had the numbers to do it. The incidence of crime was so much less that they proved their case by detection. Nowadays they are so stretched that the temptation to prove it by confession or admission is overwhelming. I do not blame them. If it were otherwise we should all perish in our beds.
It is wrong to say that the lawyers are responsible for what is sometimes referred to as the imbalance in the fight in the law courts. The reason is that the police are so overstretched. I should like us to get back to proof of guilt by detection rather than by confession or admission. The proof of guilt by admission and confession leads to trials of great length. The fashion now is that there should be a trial within a trial to see whether the oral admissions and confessions made to the police were in fact made, and the jury is sent out for days while sterile argument rages over and over again and then has to be repeated in the presence of the jury. It leads to a great deal of expense and lengthening of trials.
Secondly, in the old days the only confessions and admissions were usually not in police cases but in cases in which the Customs and Excise or the Inland Revenue were prosecuting, and they conducted their interrogations—as they do 919 still—in quite a different manner from the police because they have much greater opportunities of doing so. They have skilled persons who do little else. They have contemporary records and there is little challenge to what is said because everybody knows that it is a hopeless task.
Frequently, I think they press a bit hard. They seem to pay no attention when somebody says that he does not wish to answer their questions until his solicitor is present. They go on pressing him. They have a difficult task, and I make no criticism of those interrogating officers.
The public and certainly the profession are worried, not only about the present state of what are called the "verbals" but about the suggestion which the committee makes that interrogations by the police should be given an added sanctity by the fact that any refusal to answer before a man is charged with an offence, on being questioned by a police officer, is of great and public significance. I am not wedded to the law of the Medes and Persians about the right of silence, but I will certainly not give it up unless something is done about the "verbals".
One of the things which I was most pleased to hear from the Minister of State is that a trial experiment will be made in the proper recording of police interrogations. It is in that direction and down that avenue that we may come to a reconciliation of this problem. If some means, can be discovered by which police interrogation can achieve the sort of sanctity—respectability, I nearly said—that the Revenue and the Customs and Excise interrogations now, I consider, have, then if a man refuses to answer when he has perhaps had the opportunity of consulting his solicitor—or at any rate when a record of his refusal is unimpeachable from the fact that the tape is in the possession of a magistrate or other impartial person—it may be possible to proceed.
But I should not think that it would be safe to proceed with the present method of recording in a policeman's notebook, often 24 hours after the event, with all the difficulties and with a police force which is so gravely over-stretched and which, as the hon. Member for York 920 so rightly said, is convinced that it has its man and does not see why the rigmarole should be gone through, with the chance of his escaping. That so often happens and it is so tempting for the police. It is what is behind the police criticism of the present procedure.
If the problem of the verbal confessions or admissions can be solved by means of an unimpeachable record in the way that will apparently be experimented upon, then we might consider the right to silence again, but for the time being, no—it is far too dangerous to sacrifice what has been a universal and greatly treasured privilege or right in this country so long as the present system of police recording remains in its unsatisfactory condition.
I would say again, judging this thing on balance and seeing whether the balance of forces is right—that is what, even though they do not say so, was at the back of the minds of the Committee—we should not allow previous convictions in for issues of intent or consideration of the mens rea or state of mind of the accused. It may be, again if other balancing factors are incorporated, and even though it may be illogical, that one would look at that again, but at present there is not enough in the report on the side of the accused person to say that the "trade-in" is fair. I am sorry to use these commercial expressions, but in my commercial way, that is how I look at it.
One recommendation I do support. I have always been an enemy, long before this report, of the hearsay rule of evidence. I believe it to be totally outdated in every field. Juries today are perfectly able to judge the value of hearsay evidence and to evaluate whether it is worth anything or nothing—certainly when properly directed. The hearsay rule, as every instructed person knows, was invented because juries were so ignorant, illiterate and ill-educated in the old days that they could not be trusted to evaluate hearsay evidence.
Juries are very different today. They take copious notes and ask copious questions, and follow the trial with immense interest, and they can be trusted to judge the value of hearsay evidence and to give it its proper value in any circumstances. This would shorten the trial enormously and it would be much less artificial in the 921 minds of the jury. Nothing irritates the jury today more than to be sent out of court over and over again while some argument about whether something is hearsay or not is propounded.
There are three rules in our national life that I dislike. They all cause enormous complications and waste of time. I hope before I die to see the end of all of them. The first is the hearsay rule of evidence; the second is the earnings rule in social security; the third is the offside rule in association football. If we can get rid of all three before I am dead, I shall not have lived in vain.
§ 5.41 p.m.
§ Mr. David Weitzman (Stoke Newington and Hackney, North)
This is an interesting debate. Throughout my time in the House I have never been so tempted to go into a report in great detail, but I know that that appears to be the prerogative of the Front Bench, and I will restrain myself.
I want to begin by dealing with the thesis that we in this country pride ourselves on a system of trial and legal procedure which is the envy of many other countries. That is not to say, I agree, that valuable changes cannot be made, but I have noted in latter years a tendency to try to alter our system in certain fundamental matters. In my early days at the Bar, most civil cases could be tried with the assistance of a jury. That right is now severely restricted. Then majority verdicts in criminal cases were introduced. Now the Criminal Law Revision Committee has made recommendations which are so fundamental that there has been severe criticism not only from lawyers but also from many well-informed laymen.
It is now being recommended, apparently on the ground that what is sought is the "ascertainment of truth", that we introduce into our "adversary" or "accusational system" elements of the concept of criminal jurisprudence from the Continental "inquisitorial" system. In a letter in The Times on 5th October 1972, Dr. Manfred Simon, a retired French judge, said that he had long had a deep interest in and admiration for the protection given to the accused under English law, that this had deservedly inspired lawyers and legislators in other countries and that any changes which would endanger the proper protection 922 given by the English system to the accused were a matter of general, not merely English, concern.
His criticism of the proposed changes was that they would tend to introduce into English law certain features of the inquisitorial system without the safeguards that procedure in France had to protect the accused against arbitrary action by the police and judiciary alike. He said—and this is important with regard to what I have said about the tendency to change—It is a sad illustration of the insidious process whereby standards of even the most civilised countries can, under modern pressure, subtly but irresistibly be eroded.What is the main reason put forward for the proposed changes? I know that the Minister of State has doubted that it was the reason put forward by the committee, but it seems to me from my reading of the report that it is undoubtedly one of the important reasons for the committee's recommendations on certain points. It is said that changes are required because of the increase in the incidence of crime. Yet there is no evidence that existing procedure has in any way accounted for that increase. It is, rather, a social question. My hon. Friend the Member for York (Mr. Alexander W. Lyon) referred to the report on the last investigation, which showed to a considerable extent how wrong was the view that changes are required because of the increase in crime.
It is said that hardened criminals escape because of our procedure. Perhaps some do, but there is little evidence to support such an allegation. Even if it were true, in crime the individual is the person dealt with, and crime rate should not affect our criminal procedure in any way.
As one who may claim to have had considerable experience over many years—I have had the privilege of dealing with hundreds of different cases involving crimes of all kinds, in which the questions of the right to silence, confessions and hearsay evidence have arisen—I profoundly disagree with many of the recommendations and have grave doubts about others. I propose to deal with only some of them.
I want to deal in particular with the proposed abolition of the caution and the curtailment of the right to silence. The right to silence is a constitutional legal 923 right. The accused person should be told by those who have the power and the right to question him that he has that right.
It is not the professional criminal who will be affected. As has been said by the Bar Council and many other bodies competent to judge, it is the weak, the inarticulate, the person who does not know his legal rights, the innocent person, who will suffer. To say of such a person, as is proposed by Clause 1(1) of the draft Bill, that from failure to mention any fact which subsequently was relied upon in the defence an inference could be drawn—presumably showing his guilt or tending to show his guilt—would be an unwarranted and unnecessary fundamental change in our law. It would be a breach of the principle we have long cherished, that the accused is deemed to be innocent until he has been proved, by evidence adduced by the prosecution, to be guilty.
I should have thought that the committee would have paid much more regard to the necessity for observance of the Judges' Rules and the need for a lawyer to be present when the accused is interrogated. I know that there was some discussion of those matters, to which the Minister of State has referred. But we all recognise that, although as a general rule the integrity of the police is beyond question, there has been considerable disquiet on a number of occasions about the accuracy of interviews between police and accused, with no independent witnesses present, and that there is a need for verbatim reports. I welcome the inquiry the Government are to carry out with regard to taped reports. I hope that it may be extended beyond that and that something can be done to see that when an accused person is interviewed by the police a lawyer is present to protect his interests.
I turn to Clause 2 of the draft Bill, dealing with confessions. The committee recommended that the present rule should be relaxed. It is proposed that confessions obtained by a threat or inducement are to be inadmissible only when they are likely in the circumstances, in the words of the clauseto render unreliable any confession which might be made by the accused in consequence thereof.924 I have read carefully arguments that are said to support the proposed change. I do not think that they logically support the necessity for such curtailment.
In my experience, when we have a trial within a trial about the "admissibility of a confession", it is often difficult to deal with the matter. It is so easy for the police to advance their case that no threats or inducements were ever used. Yet very often damaging statements are put forward in the confession that are vital on the question of guilt or innocence. It would be very wrong to curtail the present right to keep out confessions in cases where they should be kept out.
I should now like to say a word about the power to compel defendants to enter the witness box. I do not suppose that the professional criminal would fear it or be affected by it. But, again to use the words of bodies that have considered the matter, it is the hesitant, the inarticulate, the weak, the innocent accused who might well suffer. My hon. Friend the Member for York gave some cogent illustrations.
Finally, there is the proposal to allow in evidence details of previous convictions. I strongly oppose that recommendation. Subject to certain exceptions, such evidence has never been admitted. A verdict is returned on the facts proved in connection with the crime charged. The mind of the jury should not be biased by references to the accused's previous history. After all, the accused has paid the penalty for his previous convictions, and damaging evidence of that kind should not be given.
I do not agree with my hon. Friend the Member for York's wholesale condemnation of the report. I agree with the Minister that there are some valuable recommendations in it. I have no doubt that the committee gave a great deal of consideration to the matters before it, and we should be indebted to it for its careful consideration. However, far too much attention appears to have been given to aiding the police in their fight against crime and far too little to the protection of accused persons. Let us not forget that it is better that the guilty should escape than that an innocent person should be convicted.
Above all, let us do nothing to detract from the important principle in our law 925 that a person is deemed innocent until proved guilty, and that he should be proved guilty only upon evidence properly adduced by the prosecution.
§ 5.54 p.m.
§ Mr. Edward Gardner (South Fylde)
I was glad to hear the hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) say—I agree with him—that there are recommendations in the report which are undoubtedly valuable and which should be considered by the Government. I also associate myself with my right hon. and learned Friend the Minister of State, Home Office, in recognising the distinction of the committee. I share with the hon. Member for York (Mr. Alexander W. Lyon) a certain nervousness about questioning conclusions reached by a committee of such eminence.
One of the most interesting points raised by the hon. Member for York was the question why such a distinguished committee had, in some major facets of its report, gone—in the view of some of us—so sadly astray. The reason lies in the fact that the committee was acting and was coming to its conclusion upon two basic assumptions. It is upon these two basic assumptions that the committee has mounted its argument for many of the major recommendations in the report.
Those two basic assumptions are the same assumptions as are the foundation of strong criticism of our system of criminal law by Sir Robert Mark, Commissioner of the Metropolitan Police. The first of those basic assumptions is that juries are acquitting far too many guilty professional criminals, and the second is that by changing the rules of evidence there can be a cure for what is happening, as it is apparently supposed to be clear that the rules of evidence tend to favour the defence more than the prosecution. I have felt that there has been growing a snowball of doubt as to the validity of those two basic assumptions.
After the publication of the report, the Bar Council published in the form of a memorandum what can only be described as a devastating criticism of some of the major recommendations made by the committee. The Bar Council's memorandum has had a considerable—I am almost tempted to say prodigious-influence on the Government's thinking 926 and possibly has been responsible for the delay in any attempt to implement the committee's proposals by new legislation.
In its memorandum the Bar Council says in effect that the basic premise upon which the committee urged some of its main conclusions was incapable of being substantiated, and was wrong. The basic premise which it says was wrong was the premise that too many guilty professional criminals are being acquitted by juries because the laws of evidence tend to favour the defence. I have been asked by my hon. and learned Friend the Member for Southport (Mr. Percival), who has unavoidably had to leave the House, to say that he wishes his name to be associated with the criticisms which have been raised by the Bar Council in its memorandum.
A new study of acquittals by juries has been released today and the hon. Member for York has provided a more than adequate precis of what it contained. I shall not go over the same ground. The author of the report, Mr. Zander, knows full well—he will forgive me for saying so—that he is a person with whom I do not always agree. However, I must now pay him a compliment, and I do so sincerely. The study of the acquittals by juries, clothed with convincing figures and facts, has two propositions which are contrary to the basic premise upon which the report of the Criminal Law Revision Committee was founded. The first of the propositions, based on the statistics set out in the study, is that professional criminals who commit relatively serious crimes are more likely to be convicted than the less experienced who come before some courts.
The second of the propositions which he seeks to support, and which in my view, on the face of it, is supported by what he has discovered, is that mere reform of the rules of evidence, as recommended by the committee, would have little or no effect upon the conviction rate. Mr. Zander's study of the random samples showed that most acquittals—and I would not think that any great analysis was needed to convince us of this—were acquittals for obvious reasons, such as the weak prosecution, the strong defence, the bad witness, the absent witness, and all those other reasons upon which one supposes juries act in acquitting people who are accused before them.
927 A quarter of the acquittals in the cases he examined were acquitted on the direction of the judge. Mr. Zander must be right when he comments that in these cases no amendment or reform of the rules of evidence could possibly be expected to alter the fact that these people would be acquitted, even though the rules of evidence were different.
In only a small number of cases were the acquittals without explanation, or perverse, and it would be reasonable to suppose that no one would expect to avoid perverse acquittals merely by changing rules of evidence. If Mr. Zander's study of the acquittals of accused people is accurate, and if its conclusions are reliable and can be generally applied, the basic premise upon which the report of the Criminal Law Revision Committee is apparently based can no longer be any reason or guide for changing what Mr. Roger Parker, Q.C., the former chairman of the Bar Council, described as thewhole ethic of the administration of criminal justice in this country… .One of the most important and controversial proposals of the committee is that the right to silence should be abolished. At present the right of the accused, after caution, is to say nothing, to decline to give evidence until his trial. That is a constitutional right of supreme importance to every citizen in this country.
I make no apology for quoting again a much-quoted passage from the summing up of Mr. Justice Devlin, as he then was—now Lord Devlin—in the case of Dr. Bodkin Adams who was charged with murder and who declined to go into the witness box and give evidence. Mr. Justice Devlin reminded the jury:We grant to everyone suspected or accused of crime at the beginning, at every stage, and until the very end, the right to say ' Ask me no questions. I shall answer none. Prove your case.' I hope the day will never come when that right is denied to any Englishman.I believe that unhappily that day would come if this proposal to deny the accused the right to silence were accepted by the Government and implemented by legislation. An individual when he is in the hands of the police, at a time when he is entirely alone, beset—Heaven knows—by what emotions and fears, has one thing to protect him, and one thing only, against an abuse of power by the execu 928 tive, and that is his right to silence. To deprive an individual of that right is to put into the hands of the authorities a power which may well injure the accused very much more than it might help ultimately the successful prosecution of a guilty person.
If I may say so with deep respect to this committee and its distinguished members, the weakness of the committee and its conclusions is that the committee was looking only at the laws of evidence. I believe that it should have looked at the problem as a whole, including the problems of procedure. I ask the Government to be very cautious—nay, indeed to decline—to bring in new legislation adopting the proposals of this report until both the difficulties of evidence and the difficulties of procedure have been examined fully and thoroughly. Perhaps the most convenient, obvious and effective way of doing this would be to send this problem, as the General Council of the Bar invites in its memorandum, to the Law Commission.
I hope that this absence of legislation, if there is to be an absence of legislation, will not discourage the authorities from taking steps now, as indeed they can, to do something about what are known as "verbals"—that is, the oral statements made by accused people to the police in the course of questioning by the police.
The present system is quaint, and uncertain and provokes all kinds of suspicions—some founded, some unfounded—in the minds of jurors who have to consider the acceptance of evidence of this kind. The police ask a question; the accused or the suspected person answers it; an hour later, perhaps two hours later, the police officer who has asked the question attempts to put down in his notebook word for word what he has asked and what the accused replied. If there are two police officers there, it is all very proper; it is allowed. It is wholly artificial, but it goes on every day and presumably every hour of the day. The two police officers can get their heads together and they can copy out of each other's notebook until they come to an agreed version of what was said. It is nonsense.
§ Mr. Peter Archer (Rowley Regis and Tipton)
Does the hon. and learned Gentleman agree that the normal practice— 929 quite properly and without dishonesty—is for the two police officers actually to write up their notebooks together?
§ Mr. Gardner
Yes; there is no suggestion of any dishonesty here. This is to the disadvantage of the police just as much as it is of the accused. One is seeking justice, but this does not mean that one is pressing on one side or the other. One is going, one hopes, straight down the centre. It makes an artificial difficulty and one which we should abolish.
There has been some adverse comment in America recently about the use of tape recorders, but I have no doubt that tape recorders could be used without difficulty and with security.
I should like to see a new set of rules—it does not need legislation—by which oral statements taken down by police officers during the course of questioning are at some stage, a reasonably short and convenient time after the statements have been made, shown to the accused and read over to him, with the accused being given the opportunity of reading them and then signing them as being a correct version of what was asked him and what was said. Such a simple procedural system could do much to avoid and eliminate many of the difficulties—embarrassing to the police, injurious to the accused—which are at present suffered as a result of the present system.
§ Mr. F. P. Crowder (Ruislip-Northwood)
I agree with every word that my hon. and learned Friend says. I wonder whether the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) is aware that originally police officers were not allowed to sit down together and write up their notebooks. I have reason to know this because I appeared in Regina v. Bates in 1955 and the then Lord Chief Justice of England, Lord Goddard, said that he saw no harm in it. Does my hon. and learned Friend agree that the position previous to that was that there was a police instruction that police officers were not allowed to sit down and write up their notebooks together? Whenever one asked them in court whether they had done so, they always replied that they had not, but one always knew full well that they had. With education as it is now, when people make statements why should they not write them out themselves?
§ Mr. Gardner
That may well be an improvement upon the simple amendment to the procedure which I have suggested. There is the risk—I put it no higher—of some misunderstanding between Sir Robert Mark, the Commissioner of the Metropolitan Police, and the General Council of the Bar. It would not be a bad idea if the General Council of the Bar arranged a meeting so that the problems which have just been outlined could be discussed and thrashed out with the Commissioner and we could bring to an end, as it is very desirable in everybody's interests that we should, the suspicions that so frequently arise in the minds of jurors as a result of the procedures which we at present use.
§ 6.15 p.m.
§ Mr. Peter Archer (Rowley Regis and Tipton)
Alexander Pope once reminded us what mighty conflicts rise from trivial things. The terms of reference of the Criminal Law Revision Committee, which were read to the House by the Minister, appeared to invite suggestions for technical improvements in the rules of evidence. That was a perfectly proper but unexciting kind of request. What it produced were proposals which, in the words of the memorandum of the Bar Council,go far beyond the amendment of technical rules and in practice will impair fundamentally the constitutional position of the individual.Debates about legal technicalities affect the ordinary lives of individuals. It is perhaps not surprising that suggestions as far-reaching as these produced a storm not only among lawyers but among the lay public. If, as my hon. Friend the Member for York says, we are present at the interment of these proposals, perhaps it is a little unfortunate—I appreciate that there are difficulties—that the House was not permitted to debate the proposals until the public debate had gone cold. That may explain why this debate is confined exclusively to lawyers, so far as I can see, and why the benches are so bare. The details of the proposals have been discussed so frequently and in so many places that there is little new that any of us can find to say.
The hon. and learned Member for South Fylde (Mr. Gardner) put so concisely and clearly many of the points which I might have wanted to put that in another forum I might have been 931 content to adopt his submissions. I wonder whether we might use this opportunity, Mr. Speaker, to discuss some of the rather wider implications arising from the committee's proposals. Perhaps if we do so we shall not be befogged by discussion of the merits or shortcomings of the distinguished jurists who composed the committee.
Without impertinence I ventured to say on a former occasion that when we discuss a snap reaction or judgment it becomes important to know the jurists who made it, but when we discuss a carefully-set-out argument or an analysis it matters not from whence it comes but whether it is valid. I do not propose to say anything further on the composition of the committee, save to say—I cannot refrain from getting in one parting shot—that I respectfully echo the comment of my right hon. and noble Friend Lord Gardiner in another place—namely, that after eight years' deliberations perhaps we could have hoped for a greater degree of unanimity. Perhaps that is uncharitable.
No system which human being devise can guarantee against mistaken verdicts. The only way to ensure that no one is ever wrongly convicted is never to convict anyone. The only way to ensure that no one is every wrongly acquitted is to convict everyone. Given that unhappy circumstance, it seems that two separate questions arise which have been confused in the course of some debates arising from the report. The first question is how we ensure that, where possible, our system of trials produce the right results. The second and separate question is, as the process of investigation, arrest, interrogation and trial must make up a single package, how we can ensure that when the system produces mistakes the balance is about right between mistaken conviction and mistaken acquittals.
It is fashionable to say that it is better for 1,000 guilty people to be acquitted than for one innocent man to be convicted.
§ Mr. Archer
There are occasions when I reject the hand of friendship. I believe that that proposition is not self-evident. In uneventful times when the public had nothing to fear from the activities of the police, and when the police 932 had all the resources at their command and the situation was well under control, that might be a proposition which we could happily accept. However, in times when members of the public, including innocent women and children, are as vulnerable as would appear from the unhappy announcement made this afternoon, we must look a little more closely at that kind of proposition.
The Bar Council in its memorandum expressed the matter in this way when it set out some of the factors of which we should take account. It said:in our view fundamentally, the willingness of the system and the society which it serves to accept the occasional acquittal of the facually guilty if, in the last analysis, it is the necessary price to pay for the certain acquittal of the factually innocent.In that form I doubt whether any of us would dissent. But if I may suggest that there is one flaw in an otherwise splendid memorandum, it seems that the council may have skated a little too lightly over the difficulties. A system which produces 95 per cent. accuracy in its results would be highly commendable, given all the factors which can lead to mistakes, but a 5 per cent. rate of inaccuracy could give rise to some real difficulties.
§ Mr. Alexander W. Lyon
I hope that my hon. and learned Friend has read the speech in another place of the Lord Goodman. He said with great wisdom that no human institution can ever be perfect and that if we are to have imperfection it is better that we have the bias in favour of the innocent rather than in favour of the guilty.
§ Mr. Archer
I am grateful to my hon. Friend for that intervention. He was anticipating the broad conclusion at which I would have arrived. It is only right that this matter should be raised but clearly we can never decide it statistically. There is a question of determining where the balance of the pendulum lies. A thousand guilty people acquitted to one innocent person convicted—I am not so sure. But ordinary people are vulnerable, on the one hand, to the operations of criminals and, on the other hand, to what could be a far more crushing blow—namely, being convicted wrongly of a crime which they did not commit, and if the proportion of 1,000 to one is too high, the proportion of one for one is too 933 low. That seems to be a matter which at some stage we should debate. I am not sure how we can produce statistics—
§ Mr. Archer
My hon. Friend has again anticipated me. I accept that some conclusions can clearly be drawn from those valuable statistics, but what we can never have are statistics of how many people brought before the courts were in fact guilty and how many were innocent. This is clearly a matter which can never be argued to a hard and fast conclusion. I claim no greater authority for my impression than that which Sir Robert Mark claims for his, but it is my impression that there is no reason to believe that the figure at the moment is too low. There is nothing to indicate that the balance is too far in the direction of upholding the defence rather than the prosecution. In paragraphs 21 and 22 the committee raised the question without ever indicating what answer it gave. It seems that it addressed itself to that question rather than to the other. I am content tonight, having agreed with my hon. Friend the Member for York, to put forward a plea for a more prolonged debate on that question at some subsequent time.
I turn to the other question of how to ensure, as far as we can, that the results which our system produces are accurate. The committee appeared to take the view that there were certain categories of criminals who were too frequently being perversely acquitted, and therefore there might be more accurate results if we could succeed in producing a higher proportion of convictions in that category. I do not think I could attempt to paraphrase what the committee said better than was done by Mr. Parker, who gave an interview as Chairman of the Bar Council on 30th January 1973. He said:This view is that the increase in the crime rate is largely due to the alleged fact that sophisticated criminals know that they can engineer acquittals in many cases by manipulation of the rules of evidence and procedure.That, as I understand it, seems to be the premise from which the committee argued 934 its answer to the second question. Mr. Parker went on to say:The Bar Council does not agree.Anyone who wishes to know why it does not agree can see the reason set out very fully in the memorandum.
The article by Mr. Zander, which my hon. Friend summarised, lends a great deal of support to the Bar Council's view. There may be some question as to how frequently professional criminals are brought to trial, if by "professional criminals" one means not the little man who somehow gleans a living from crime—although he is a professional criminal—but the highly sophisticated criminal who finds that he can make a better living from crime than from the professions and who uses all of modern technology in the process. There may be some doubt as to how many are brought to trial but, as I recollect it, very few who have been brought to trial have been acquitted.
But on the assumption, for the sake of the argument, that the committee was right in its diagnosis of the problem, the next question is how far each of its recommendations is directed towards the solution of that problem. I propose briefly to mention two recommendations, not because I think I can embellish what has been said elsewhere and during this debate but to try to explore how closely they approximate to a solution to the problem.
The first recommendation relates to what is said about the right of silence under interrogation. Obviously the right of silence in court is a quite separate consideration about which at the moment I say nothing. It has been said far more effectively than I can hope to say it that the person who needs a caution is not the highly skilled professional criminal. He knows that he does not have to say anything. Frequently, if he has planned his crime as carefully as the caricature of him which sometimes emerges seems to suggest, he has his explanation ready in any case. If he has not, he dries up and says nothing.
The person who is caught is the inadequate little individual who has probably never been in trouble before, who immediately gets flustered and blurts out an inarticulate account of the whole matter, leaving out what is vital. Anyone who has attended a legal advice centre to take instructions from someone under 935 stress will know how easily the most vital factor in the case gets left out unless someone deliberately prods to unearth it. And those of us who have drafted pleadings in civil cases know how easy it is, in the calm of our chambers, to produce pleadings which will not afterwards be criticised because some essential fact has been left out.
But here there are at least two other matters which ought to be borne in mind. Someone may leave out a vital fact not because he has forgotten it but because he wants to protect someone else, or not because he wants to conceal a crime from the authorities but because he wants to conceal the facts of the case from someone quite different, such as his wife. He may not want his wife to know that at the time of the accident he had another woman in the car.
Of course it can be said, and with some force, that all that is being proposed is that it should be left to the jury to draw what inference it thinks right from the omission. It is not suggested that it has to draw inferences. It is true that today juries are clearly more sophisticated, more awake, than they were a generation ago. But that argument leads to the abolition of the whole law of evidence. The purpose of having such a law is to protect juries, as sometimes even lawyers and judges need protecting, from information which is more likely to be prejudicial than it is to be helpful. If we are to have a law of evidence at all, those are matters which ought to be taken into account. If we are to rely entirely on the wisdom and common sense of the jury, let us burn all the textbooks on evidence.
The other danger of the proposal is that it endangers the inarticulate and possibly innocent in another way. We are all familiar with the police officer who is so convinced that he has got the right man that a little push over the line seems justifiable. So we get that revered institution, the "verbal". What this proposal invites is not (he inclusion of a "verbal" but the omission of one. This will be the injustice of the "non-verbal". And how often have we asked a client "Why did you say so-and-so?" and received the reply "I am not sure that I said it. I have no clear recollection of the interview. I was a bit confused anyway. If 936 I did say it, frankly I cannot remember why I said it."
One of the difficulties, as the hon. and learned Member for South Fylde said, is that the record of this kind of conversation is all too frequently a onesided record. The only person who has the record is the police officer.
One other recommendation which I would mention is the relaxation of the rule against evidence of other conduct in paragraph 92. The proposal is, if the actual presence of the accused is in issue, if the ostensible outward and visible facts are in issue, that evidence should not be admissible, but that where what is in issue is intention, it should be admitted. So much has been said about this that I do not propose to canvass the major arguments for and against. I only want to make the point that that recommendation was introduced rather as though what was being proposed was a fairly minor change in the law applicable to a limited number of cases. We know from the Oxford studies to which my hon. Friend the Member for York referred that a high proportion of cases turn on just that kind of issue.
Most of us know from our professional experience that far more cases turn on that kind of issue than on the issue of "whodunnit?" What is being proposed is a widespread change in the law at a time when one would hope that the tide was flowing in the other direction, at a time when it was to be hoped that someone who, in the course of a misspent youth, had made a mistake could live it down by going straight for a long period of time. My hon. Friend the Member for Manchester, Gorton (Mr. Marks) is introducing a Bill which has precisely that provision in mind.
This recommendation appears to be going in the opposite direction. As the Bar Council has pointed out, it could be applied almost without limit as to what constitutes "other matters" and something dragged up from a past period is much more likely to tell against the petty criminal who did not succeed at his first attempt than against the highly professional criminal who had succeeded in escaping detection for a long time.
If we could have the kind of debate for which some of us have asked, we might mention not so much what the report contains as what it omits. For 937 example, it omits the right while under interrogration to see a solicitor. Among all the other contributions which Mr. Zander has made to these debates, an important one was his article in the Criminal Law Review for January 1972 on the question of the right to see a solicitor. If these proposals were implemented, that right would be even more important. The fact that it was omitted rather lends colour to my submission that it was probably the balance of the pendulum which was in the minds of the committee rather than achieving accurate results. The time may come when we can debate all these matters in a different context. Meanwhile the police require some guidance of the kind which has been mentioned in these debates.
Some years ago the Association of Senior Police Officers asked the United Nations to begin discussions with a view to formulating an international convention to deal with the conduct of police. Unhappily the United Nations has not found time to discuss that proposal. Before the Council of Europe a fortnight ago some of us initiated a similar move in the hope that the Council of Europe would remedy that defect. Certainly the guidance for police officers ought to be in the form of rules which are debated in this House rather than in the form of Judges' Rules. It is not fair to ask busy judges to formulate such rules with their limited opportunities for consultation. And the rules should be debated fully among the people who represent not only the legal profession but the lay public. I hope that, when that wider debate comes before the House, the many points of detail which have been discussed during this debate will transpire not to have been lost.
§ 6.37 p.m.
§ Mr. Norman Fowler (Nottingham, South)
I have the one distinction in the debate in that I look set fair to become the only non-lawyer to take part. That is perhaps a pity because what we are considering is essentially the public interest. It may well be right that the views of lawyers and the public interest are the same. I know that hon. Members will forgive me if I say that that is not necessarily axiomatic.
This debate has been continuing for a long time, since long before the 938 Criminal Revision Committee was set up. One of the interesting features about it is how general attitudes concerned with the proposals set out in the report have changed. Generally those who support the proposals in the committee's report tend now to be portrayed as the blackest reactionaries who are striking at the very basis of our law. Yet there was a time when such proposals, particularly that to alter the rule of silence, were considered radical. Mr. Ben Whitaker, a former Labour Member of the House, wrote an excellent book on the police in which he advocated a change in the rule of silence. He called in aid an impressive line-up of Bentham, Salmond and Glanville-Williams. If I may put it in non-legal terminology, the membership of this committee is also an impressive line-up. I make that point not to establish that the supporters of change in this area are automatically on the side of the angels any more than its opponents are by definition the sturdiest defenders of freedom in this country. What I do suggest is that the supporters of this report have a decent case, aimed not at putting the innocent man at peril but at trying to increase the certainty of conviction of the guilty.
Basically I support the principles of the report, although I have some reservations which I will come to about its immediate implementation. In this country we talk a great deal about civil liberties and rightly we take the greatest pride regarding it. We should remember that one of the civil liberties that the public most value is freedom from violence and freedom from crime. From that it must follow that those who are guilty of violence and those who are guilty of crime should be convicted. Just as there is no justification in allowing an innocent man to be convicted, there is also no justification in allowing the guilty to escape. Clearly everyone in the debate recognises that there is a balance to be struck and that the trial procedure should recognise the demands of the innocent while at the same time ensuring the conviction of the guilty.
But surely we should also recognise that conditions and times change, that the rules dating back to the last century and even further may not be relevant today and that there is an overwhelming and unanswerable case for reviewing the rules 939 which at present obtain. Perhaps we should also remember the peculiar traditions in England itself concerning the tackling of crime. We hesitated much longer than many other countries to introduce an organised police force to detect crime. To prevent crime, we placed our faith basically in deterrent sentences, notably execution, but we balanced that by probably the most liberal trial procedure in Europe. In other words, many of our rules were drawn up to protect the innocent in situations where punishment was savage, where many of the accused were illiterate and where legal advice was rare.
Clearly that situation has changed. Legal representation is now much more usual and punishment is less severe. However, I suggest that it has also changed in one other significant way. That is, that in the last 10 to 20 years we have seen in this country and also in other parts of Europe—leaving aside the position in the United States and other major countries—the emergence of the professional and the semi-professional criminal.
On the whole, those are people who live basically on the proceeds of crime, whatever may be their other interests or fronts. There is a reverse side to the kind of description that the hon. Member for York (Mr. Alexander W. Lyon) gave of the criminal in this country. Anyone who believes that criminals today are all simple men who fall easy prey to the police has only to read the Daily Express of today to see a story of Ronald Biggs, who was released from prison in an organised escape, who evaded justice for eight years, travelling from country to country on a false passport, and who had plastic surgery so that he could try to evade justice even longer. The Biggs story is not only dramatic: it is serious. It shows that the day of the professional criminal has not only come but that it arrived some years ago.
I realise that the Biggs case is at the dramatic end of the scale but it is interesting to look back to the situation in 1963, the year of the great train robbery. In that year the number of robberies in England and Wales was 3,500. The number of robberies in England and Wales, including London, last year was 940 almost 9,000. Robbery is only one guide to serious crime. I am not suggesting that every robber or person included in that category is a professional or a semi-professional criminal, but it certainly is true that many are and that the proportion of professional and semi-professional criminals has increased.
Any serious research done in this country, notably by McLintock at the Cambridge Institute of Criminology, has shown that it is serious crime—crimes which the public would consider serious, notably crimes of violence—which has increased by more than average. I make this point not in order to correct what the hon. Member for York said but to show that there is also the other conclusion which we must take into account as well.
§ Mr. Alexander W. Lyon
Biggs is one of several thousand criminals, but only a very restricted number could be placed in his class. But he was convicted.
§ Mr. Fowler
That is correct, but the point is not whether Biggs was convicted or whether he was released from prison. The point I am trying to make is that the robbery figure has shown a far more significant increase not only in the United Kingdom but in Europe generally. There has been an increase in professional crime in this country and on the Continent. That is a truth that we should recognise and not simply say that there are exceptions. The Biggs figure is an exception, but that there are many others who are professional or semi-professional criminals cannot be denied.
I want now to deal with what I take to be the heart of the report, the part referring to the rule of silence. I accept in principle the case put in the report for change. I think that in principle the case is overwhelming. I believe that the present rule provides an unnecessary advantage to the guilty, and that if an accused person refuses to answer a question it will not only hamper the investigation but make it very much more difficult for the truth to be achieved—and, after all, the truth is the aim of the criminal trial. It is not a game played between lawyers but an exercise in establishing the truth.
941 Nor does the committee, contrary to what has been suggested, say that the right of silence should be abolished. An accused person may still remain silent, but the committee says that if he remains silent he will have an adverse inference drawn against him at his trial. That is the principle of the case. What of the practical implications?
I think we are all agreed that this is an area of importance and great delicacy and controversy. Rightly or wrongly, many people in the legal profession have come out against this proposal. As always, their opposition is and will be vocal and they will be and have been joined by others. One effect of the opposition may be to give the impression that if the proposal is implemented at this stage the scales of justice will be deliberately weighted in favour of the police. If that impression is received by the general public, it will be disastrous for the police. A successful police force depends upon public trust and co-operation. Any advantage that the police might receive from the kind of change suggested in the report would be far outweighed if that impression became general. Therefore, I be-live that the Government should not implement this proposal but should take three immediate actions which they could now take with general support and without prejudice.
First, the Government should commission a research project into this subject. Mention has been made of Michael Zander's research findings. I have only read the newspaper report—it was well timed to appear today—but even so I believe that Mr. Zander has produced a valued and interesting report. But I am sure he would be the first to agree that it is not necessarily conclusive. What Mr. Zander can do, the Home Office research unit can do as well, or can commission another body like the Cambridge Institute of Criminology to do.
If the results of the research suggest that the professional criminal is getting away with it—as not only Sir Robert Mark but many other police officers believe—that will increase the case for change. If the research does not show that the professional criminal is getting away with it, it will reduce the case for change. I do not suggest that such research will necessarily be easy, but it is about time that we as Parliament, with 942 the Home Office, took this area of research rather more seriously than we have done hitherto.
We are spending a fraction of 1 per cent. of the crime budget on research. That is a pathetic figure. The United States Crime Commission said that there is no other area where so much money is spent generally with so little knowledge of what we are doing. This is a prime example.
Secondly, it follows that if there is to be more pressure on the accused to speak, we should ensure that his words are accurately recorded. I am on the side of the minority rather than of the majority of the Criminal Law Revision Committee in this aspect. I am glad that my hon. and learned Friend has announced a feasibility study. Such studies are all very well, but surely at this time we should go a little further. I find it difficult to believe that there now remain technical difficulties in preventing tape recordings from being tampered with. Surely one of the points emerging from the Watergate scandal is that one can now find out where tape recordings have been tampered with. The Home Office and the chief constables should study such evidence. I hope that, if the feasibility study goes ahead, these technical matters will be disposed of quickly. The tape recording of statements would be a safeguard not only for the public but for the police as well and would have a general welcome.
Thirdly, the Government should examine the whole question of legal advice, taking up what the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) was saying. The professional criminal has a lawyer from the beginning, but not everyone is as fortunate. Legal advice centres could very well be extended throughout the country, much to the benefit of the general public and also to the advantage of fairer trials generally.
Treating these three suggestions as a package would, I believe, preserve the balance which both sides of the House are so anxious to preserve. I suggest that such changes would protect the innocent and strike against the guilty. Above all, I hope that the hon. and learned Member for York was not right when he opened his speech by saying that we had come to 943 bury Caesar rather than to implement the report. The worst and most disastrous thing that could happen would be for the report to be left to gather dust on a Home Office shelf.
§ 6.55 p.m.
§ Mr. Ronald King Murray (Edinburgh, Leith)
I share the regret expressed by my hon. Friend the Member for York (Mr. Alexander W. Lyon) that the report was not presented as a discussion document rather than as a formal report. It is an interesting attempt to change the law of self-incrimination in the light of present circumstances. That in itself is a dangerous exercise.
The law of evidence as now constituted has been built up not without considerable pain and suffering. One has only to remember that the cessation of confessions by torture dates from as recently as the glorious revolution of 1688 and 1689. We do not want lightly to discard legal and constitutional safeguards of such importance as those embodied in this area of the law.
On the other hand, the right to silence has never been absolute. The point of stress in the debate is the importance of the right of silence, and I broadly agree with the criticisms that have been made of the report in that regard. The right to silence has never been absolute, and the question is where the balance is to be set. I find it difficult not to agree with my hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer) that the value of the caution is not to the professional criminal but to the person who happens to be caught in the police net, who might or might not be a criminal, who might or might not be a witness. That is the area where gross injustice could be done by some of the reforms contemplated in the report.
For instance, if someone who has been at the scene of an affray is speaking to a police officer about it afterwards, surely it is common justice that at some point he should be made aware that the account he is giving may lead to a prosecution against him. That idea may not occur to him. He may see himself entirely in the rôle of a witness. It is only a matter of common fairness that he should be made aware of the possibility that a prosecution may result. When a policeman 944 is interviewing a professional criminal the matter is quite different.
One difficulty is to see how we can be fair to the professional criminal and, at the same time be fair to the ordinary citizen who may get caught up in the web of crime. We want the ordinary citizen who may get caught up to be assured of fairness at every level of the procedure. For that reason, I feel that the proposal to abolish the caution should be resisted.
Another matter that causes me concern is the proposed change in regard to confessions. Clause 2 of the draft Bill would alter the onus of proving that a confession by a suspect was freely volunteered. The advantage of placing that burden upon the Crown, where it is today, is a real one because it ensures that the police undertake carefully the procedure which ultimately results in the confession or alleged confession. If we get rid of that we do so without any corresponding advantage from the point of view of fairness to the accused, because the accused can challenge the procedure equally well whether the burden is upon the police to show that they have been fair or whether there is no burden on the police to show they have been fair. The change is negative and dangerous, and I am against it.
I accept that the right to silence could be qualified in certain ways, and I do not reject all the committee's ideas on this subject. One idea than commends itself to me is that of a simple and minimal change to allow the prosecution to comment freely on the failure of the accused person to give evidence. That is a small change that might point in the direction of improving the machinery of justice. On the other hand, it would be thoroughly retrograde to raise that kind of comment to a stage at which it would substitute for evidence or provide corroboration. That would be going too far. Such a modest idea should be considered carefully and tried before any more extreme advances are made.
I welcome the part of the report which proposes a warning about the dangers of identification where it appears that conviction may turn solely on the question of identity and where the possibility of mistaken identity is clearly in issue. In my experience in the criminal courts in Scotland, I have found time and again that my doubts are raised most in cases of that kind.
945 On the other hand—to touch upon a relatively non-controversial aspect which may therefore readily be implemented—I draw attention to Clauses 31 and 40. It is more convenient to draw attention to the clauses because they focus upon a matter that is enlarged upon in several paragraphs of the report. Clause 31 proposes to enlarge the field of hearsay in identification. It purports to cover various cases, for example where a witness cannot be found, where a witness is not able to be identified, where he is dead, and so on. I have doubt—although I do not think that the draft Bill was intended to have such an effect—whether Clause 31, taken with the qualifications imported by Clause 40 to protect certain pre-existing rules, is sufficient to protect the present procedure at identification parades. The Government may care to note that the Bill does not catch the most obvious cases of failure to identify.
From my experience north of the border—and I do not imagine that experience is much different south of the border—the most obvious case of advantage to the machinery of justice in allowing this alteration of the law is when someone who identifies a person at an identification parade, or in a less formal situation analogous to it, refuses in court to identify the person whom he identified unambiguously at the identification parade. That case would not be caught by the provisions of Clause 31 or by the qualifications imported into it by Clause 40.
I have some sympathy with the suggestion put forward by my hon. Friend 'he Member for York and accepted by the hon. and learned Member for South Fylde (Mr. Gardner). It would be useful to have an inquiry into this topic extended more widely than the Criminal Law Revision Committee. Before any legislative action is taken, it would be useful to refer this matter to the Law Commission. Indeed, I would go a little further and say to the Law Commissions.
I say that because one difficulty about our constitutional arrangements is that a report of this kind can be produced by the Criminal Law Revision Committee and an American or Japanese coming to this country might imagine that the Criminal Law Revision Committee dealt with the United Kingdom, but, strictly speaking, it does not. It is the Criminal Law 946 Revision Committee for England and Wales but, for reasons that I need not go into, it is not called that. It is unfortunate that when a report of this kind is produced the recommendations, which may have a big impact in the lesser jurisdictions of the United Kingdom—I refer particularly to Scotland and also to Northern Ireland—may sometimes in effect pre-empt perfectly fair considerations which may come from experience or ideas in those other jurisdictions.
Again I do not want to make too much of the point, but, as I come from Scotland perhaps I may be allowed to elaborate slightly. For example, the report proposes the virtual abolition of the Criminal Evidence Act, 1898. That is a United Kingdom statute of great importance and if it were to be virtually abolished in England and Wales, it would be anomalous for the Act to be continued almost entire in Scotland. Yet the Scots would have not a right to silence about whether that should be done but no right to be heard, and that is even worse.
§ Mr. Crowder
The hon. and learned Member has raised a matter of the greatest importance, namely, the matter of identification. We do not know the number of people at present in prison because of mistaken identification. Would the hon. and learned Gentleman agree that it would be sensible to include in any future Bill the provision that in matters of identification there should be corroboration?
§ Mr. Murray
I entirely agree with the hon. and learned Gentleman. That is a most helpful suggestion. Again as a Scottish practitioner, I would hesitate to uphold the advantages that our Scottish system has in some respects, but I think that corroboration is one of them.
That might be a useful point on which to elaborate my second complaint about the sense in which the report pre-empts consideration of matters affecting Scotland. For example, Clause 47(2) of the draft Bill reads:This Act, except insofar as it amends the Naval Discipline Act 1957 or makes any repeal in the Treason Act 1795 or the Representation of the People Act 1949, shall not extend to Scotland or Northern Ireland.It follows that to the extent mentioned the Bill is to extend to Scotland and Northern Ireland, notwithstanding that no committee comparable with the Criminal Law 947 Revision Committee has any say in the report's contents.
One has only to take one example. I take the Treason Act 1795. The first line of the repeals Schedule shows that what should be deleted from the Treason Act of 1795 relating to evidence of what constitutes treason, particularly with regard to writing, are the wordsevidence upon the oaths of two lawful and credible witnesses.So there, at a stroke, the Scottish law of corroboration would be abolished in the sensitive area of treason without any reference to any Scottish voice or learned Scottish body.
It seems to me that that is not the way in which to proceed in the United Kingdom. If it is really a united kingdom, we ought to be considering law reform in the whole of it, and where matters that affect the whole entrench upon these issues, they should be discussed in a wider context.
Perhaps I have used a long illustration to refer to the point of agreement from which I started. I strongly agree with my hon. Friend the Member for York and with the hon. and learned Member for South Fylde that it would be useful to have this matter discussed further by the Law Commission. The advantage of doing so of course is that the Scottish Law Commission could also be brought in. I feel that if we had a further review of that kind, what is good in this report—and there is much that is—could be separated from what is controversial.
I conclude by expressing regret that a report of considerable academic quality, embodying, no doubt, considerable practical experience on both sides of the legal profession, should have become involved with the kind of dramatic controversy that has led to the rather extreme condemnations that have been made of the report. The report deserves careful study and consideration in a calm atmosphere, not the sort of atmosphere in which one condemns it as a whole or praises it as a whole.
§ 7.10 p.m.
§ Mr. W. R. Rees-Davies (Isle of Thanet)
May I start by saying that there has been a long delay between the House of Lords debate and the debate in this 948 House? I should have liked more notice that it was due to take place today. We on this side of the House were totally unaware of this until last Wednesday or Thursday.
In ordinary circumstances, when one has only to read a Bill or a report of a debate in this House it is fairly easy. It was some months since I had read the Bar Council report, let alone the recommendations of the Criminal Law Revision Committee, and what their Lordships said in another place. I should have liked rather more notice. This is why, with one or two exceptions, those hon. Members who are now present are in the legal profession, with fairly substantial qualifications for speaking. This is a pity, as we could usefully enjoy the presence and contributions of other speakers.
First, I should like to ask the Solicitor-General a most important question, to which I hope he will be able to reply tonight. If I read the Lord Chancellor aright, this subject is one that relates to the reform of and administration of the criminal law. If that is so, it is a matter for the Lord Chancellor's Department and not for the Home Office. It is more than a year since I asked that certain matters should be sent to the Lord Chancellor's Department and away from the Home Office.
The Law Commission comes under the Lord Chancellor's Department, as does the Scottish Law Commission. The hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) and I agree very much about this. We want positive and urgent action taken on the subject tonight. It should be taken by the Law Commission. The matter should go back to the Joint Scottish and English Law Commission to consider what should be done. I believe the members of that Commission were the proper people to deal with the matter in the first place, and they are in a strong situation. They can, of course, take whatever evidence is required now, as a matter of urgency, and I see no reason why they should not be in a position, probably in the next Session of Parliament, to produce a Bill for our consideration.
I profoundly hope that we shall not see any legislation now, as there are a 949 number of matters which need to be dealt with, and this cannot be done without spending a certain amount of time on them. I come straight to them. First, we have what I wrote about some 15 years ago, the question whether we are to continue with the accusatory system in this country, or whether we should adopt some kind of Continental system, or a mixture of both.
The fundamental question which requires to be answered is whether an accused person should be compelled to speak. Every one of these main recommendations in the report of this committee depends upon this fundamental question: "Are you going to compel an accused person to speak or not?". There is no constitutional right of silence. That can be tested by taking the case of recent possession of stolen property. If a person is found in possession of recently stolen property and he makes no reply and gives no explanation, one is entitled to take that into account in considering whether he is guilty of that offence, either before the magistrate or the jury.
There is not a right to maintain silence. In the early part of this century, in 1906, the Judges' Rules provided that all accused persons would be given a caution. They were cautioned that they were not obliged to speak, but that if they did speak, their evidence would be taken down and possibly used in evidence at their trial. Hence there grew this idea that there was a right, so to speak, to maintain one's silence. It arose from a judge's caution. It is not a constitutional or inherent right.
However, there have been good reasons why those who are closely associated with the criminal law, and who see it day by day, recognise the importance of not forcing the accused person to speak. This is because we are not satisfied that there are any adequate arrangements by which he can be properly interrogated. It is upon this that it rests.
Over and over again in recent years I have advocated the vital necessity of having a system by which we can ensure that statements made to police officers are properly transcribed. There are many ways in which that can be done. It can, in certain circumstances, be done in a police station. It can be done by 950 a properly qualified shorthand-typist from a pool of staff not employed by the police. It may be that it can be done by tape recording.
Personally, I do not think that any of those methods is faultless. One needs only to refer to the interesting views of a noble Lord, Lord Ritchie-Calder, who spent many years as a journalist dealing with day-to-day crime, to recognise that there are many in that occupation who believe that one can bend or twist tape recordings. There is a good deal of evidence that the technique of tape recording has not yet been perfected.
At the same time, easily the flimsiest aspect of the report of this Home Office committee, the Criminal Law Revision Committee, is that part of it which deals with tape recordings. It is evident that most of the jurists would not like to get rid of the "verbals". They think there is no other method by which one could ensure that the evidence given by an accused person is properly taken down. The simplest method of all is that it should not be allowed in evidence unless the party to be charged has signed it, page by page. If one signs a statement and initials it page by page then—subject to intimidation—one has the best method of all.
But I think that there is an even better system than that. I believe that the accused should be questioned before a magistrate, or possibly a part-time panel of people who can be called upon to attend at Scotland Yard or at any other suitable place and be empanelled at short notice. In that way the police in any criminal cause or matter—whether it be robbery, fraud or otherwise—could call upon the accused persons to attend, either alone or accompanied by their legal adviser, for the purpose of being interrogated.
That would be a useful right for an innocent person, in addition to being an accusatorial right of those who prosecute. I believe that a person who is innocent would like to take an early opportunity of putting forward his case, but only after he has sought proper advice and had a reasonable opportunity to consider the matter.
I believe that it is possible to find a way round the present difficulty which arises from what is called the right of 951 silence. This right of silence is not constitutional, it is merely inherent in the criminal practice which we have adopted. Let us not forget that criminal justice stands foremost, throughout the world, as a system that is fair to the accused person.
What it all comes down to is that we must ensure fairness for the accused. If we say that he is to be compelled to answer any charge made against him, we must be certain that he can do so in a manner that will ensure that what he says is properly recorded and brought to the attention of the party concerned and that the interrogation is properly conducted. If we can do that, we can all safely say that we are prepared to proceed.
Why do I say "all"? I do so because, having considered the views of virtually all the legal judiciary on the one hand, and the views of the journalists, police and others who are associated with this matter on the other, they all seem to me to be agreed that the priniciple is what is fair to the accused and, at the same time, what is fair to the public. The public will be protected because they will have the right, through the appropriate channels—in this case the police—to interrogate people.
How does the system work now? First, it works extremely well in company fraud cases. In the heavy type of company fraud case—and even in bankruptcy cases—although that may be unattractive from the point of view of publicity, long interrogations take place, and everything is properly recorded sheet by sheet and signed by the persons concerned.
Why is it that in one endless robbery trial after another one finds that there is no proper record? A case which finished on Monday, having run for more than three months, would have taken half that time had it not been for the contest over the "verbals". The "verbals" turned on the production of a book which contained a complete confession which had been obtained within five or 10 minutes of the interrogation of the accused, who maintained that the whole of it was untrue and that the book had not even been made up in his presence. The decision was an extremely difficult one in any circumstances for the jury, and the case also involved the admitted corruption of a police officer.
952 That type of case takes time not because one of the police officers is corrupt, but because of the contest over the "verbals". That is why nearly all my lawyer hon. Friends on this side of the House are so anxious to get rid of the present system of verbal word against verbal word between police officer and accused in criminal trials today. Indeed, those Opposition Members who have spoken have expressed a similar view.
I believe that there is some useful content in the report of the Criminal Law Revision Committee, certainly in regard to some of the smaller details. On the major fundamental question, however, the committee approached the matter in altogether the wrong way. It thought that in some way it could tone it down and, by tinkering with the problem, could come up with a satisfactory answer.
I firmly believe that the committee is wrong. We must ensure that this matter goes back to the Law Commission as soon as possible so that it can consider the various debates which have taken place and any further evidence it needs, and, I hope, come up with a system—I should prefer it to be before a magistrate or someone of that kind—under which a person charged with a serious criminal offence can be interrogated properly. If an accused person were to refuse to be interrogated in any circumstances whatsoever, I should be prepared to go along with the terms of the report.
One final word on the other aspect. I do not think that it can be right to allow previous convictions to be introduced in the manner set out in the report. I believe that to be wrong. That, too, can be considered by the Law Commission.
I believe that we must try to assist the police. I want to ask my right hon. and learned Friend whether he will cooperate, and more particularly whether the Home Office will co-operate, with the Law Officers on this question. What guidance is to be issued to the police? The system of the "verbals" cannot be allowed to continue. Every trial is being unnecessarily prolonged because of it. In trial after trial one comes across this endless business whereby there is nothing to prove what has been said. 953 I ask that the Commissioner of the Metropolitan Police should forthwith adopt a new system—that he should send out straight away a directive that in the event of verbal confessions or statements in criminal matters being made by those charged with robbery or other serious crimes, they should in every instance have the opportunity, where possible of having a shorthand writer present to transcribe it. If that is not possible and a statement is taken down, the accused person must be asked forthwith to sign page by page any confession he or she may make.
I ask, too, that the Minister should, at appropriate police stations where it is easiest, begin a test scheme for the use of tape recorders. Tape recorders should be installed, the statement should be recorded, and when it is concluded the party concerned should be given the opportunity to hear it.
Finally, there should be the right for a solicitor to be present, if not immediately after the person's arrest, at the earliest opportunity. That would provide some fairness for the accused person. It would largely assist in getting rid of the tremendous number of fights and contests which take place over an alleged verbal confession, and would materially shorten criminal trials and assist the administration of justice.
§ 7.26 p.m.
§ Mr. Clinton Davis (Hackney, Central)
Much was said by the hon. Member for Isle of Thanet (Mr. Rees-Davies) with which I agree, and with which I am sure the whole House will agree, particularly his demand for urgent action to deal with the vexed question of "verbals", which is something that I hope the Minister of State at the Home Office will take to heart. The hon. Member has rightly said that this is a matter that arises with such frequency today that it delays the due process of law and has the terrible added disadvantage of bringing the police into contempt in cases where they ought not to be. I was not sure what the hon. Member was arguing when he commented on the accusatorial and inquisitorial systems, but the report represents the worst of both worlds, because it seeks a hybrid between both without providing the safe- 954 guards that the inquisitorial system provides.
It is a pity, as the hon. Gentleman remarked, that the debate has been sprung on the House at relatively little notice, particularly because the report is of great importance to the whole issue of civil liberties. It is a great pity that we have had only one non-lawyer participating in the debate thus far, and as I look around the Chamber it does not look as though there are likely to be any others. We have a large number of "silks" here. I am the only Member in the solicitors' profession speaking on the issue, heavily outnumbered by "silks" on this occasion. When issues of this gravity arise, whether it is a right or a privilege that is being eroded, civil liberties are at stake. It is a pity that the lay Members do not take a greater interest in matters of this kind.
I suspect that the main bulk of the report, which has been allowed to putrefy now for virtually a year since the debate in another place, will again be consigned to the depths. I should not be too disappointed about that. The pity is that, if that is done, some of the peripheral proposals will be similarly consigned.
But we are debating essentially the fundamental proposals in the report. One of the factors I find particularly disturbing is that almost the entire emphasis is placed on the trials in the Crown courts, whereas 98 per cent. of trials occur in magistrates' courts. The rules that are recommended in the report would apply equally to the magistrates' courts. For example, the rules about adducing evidence of disposition would apply equally in the magistrates' courts. How does one overcome the difficulties when dealing with the lay magistracy which are surmountable in the Crown court when the barrister addresses the judge without the presence of the jury? One cannot surmount that difficulty when the case is before lay justices.
The statistical argument, to which some reference has been made, is that approximately 1,750,000 cases are dealt with in the magistrates' courts under the present rules and that 90 per cent. of them result in convictions. There are only about 6,500 cases of acquittals dealt with by juries that we are considering in 955 relation to the main burden of the report's proposals.
The hon. Member for Nottingham, South (Mr. Fowler) placed great emphasis upon the professional criminal. He relied upon remarks of the sort made by the Commissioner of Police of the Metropolis—and they are in the report—that it is to catch the professional criminals who escape from the toils of these rules that we should change the law. It was my hon. Friend the Member for York (Mr. Alexander W. Lyon) who pointed out that the professional criminals are, in the main caught and convicted. If it is a question of catching them, the rules are irrelevant. We need a higher incidence of detection. In order to achieve that we must have a higher-paid police force and better conditions in the police, and in that way we can build up a better respect among the legal profession, the police and the judiciary.
While one has some sympathy with the police when they suspect that somebody whom they have caught is guilty of an offence but they find it difficult to produce evidence in the court, one cannot begin to condone the sort of allegations that have been made today when it has been said that the police will "verbal" the victim. I cannot believe that the flimsy evidence that has been produced in this respect is a good reason for the massive change in the law that is proposed.
§ Mr. Money
Would the hon. Gentleman agree that this goes a little beyond the position of the professional criminal? What is at stake here is changing the law as it affects the whole body of citizens, with the risks inherent in that, in order to deal with what is being treated as a separate class of people.
§ Mr. Davis
I thought that was the point I was trying to make from the outset. At a time when in the United States, after the decision in Miranda v. Arizona, the courts have been determined to strengthen the right of privilege of silence, or whatever one might call it, it is disquieting that the substantial body of legal opinion which drafted this report should take a diametrically opposite view. I should have thought that at a time when democracy is under stress, we should be ever more vigilant about protecting those rights and liberties which 956 have been built up. It is when one is under stress that these rights become much more precious.
It is also disquieting that the report says so little about protecting the accused. A number of hon. Members have mentioned that nothing is said about the right of an accused to have a solicitor present. All sorts of excuses are conjured up by unscrupulous police officers to prevent a solicitor from representing his client in the early stages of an investigation when the solicitor's presence is most required. Little or nothing is said about what ought to be an essential freedom.
This lack has been heavily criticised by the minority of the committee and in another place. The Labour lawyers, the London Criminal Courts Solicitors' Association and all sorts of legal opinions have been very critical of it. It has to be remembered that, again in the United States, to have a lawyer present at the outset of an investigation is an absolute right.
It is hardly surprising that the report should have come under such strong fire, because so many of the proposals, under the guise of dealing with the technical rules of evidence, fundamentally affect the constitutional position of the individual.
As my hon. and learned Friend the Member for Rowley Regis and Tipton (Mr. Peter Archer) pointed out, it was outside the scope of those instructed to carry out this investigation. The Criminal Bar Association has rightly said that the report gives the impression of being directed more to the question of how it can be made easier to secure convictions than to ensuring that all those who appear before the criminal courts will receive justice of the highest quality combined with expedition and efficiency.
There has been a disturbing misunderstanding of what the legal system in this country is all about. It is not the basis of the criminal law that we are determined to find out the truth—that is the inquisitorial system and maybe it is a better system, though personally I do not think that it is. At present the burden rests upon the prosecution to prove its case beyond reasonable doubt. If, as recommended, there is to be a hybrid system, where in the report is the accused offered the protection that the inquisitorial system at present provides? There 957 was a remarkable letter in The Times from Dr. Manfred Simon, to which my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) referred. He gave evidence before the Criminal Law Revision Committee and complained bitterly that the basis of the report, if implemented, would substantially erode those freedoms which he so much admired in the English legal system.
I turn briefly to some of the basic proposals. There is the right of silence, if the hon. Member for the Isle of Thanet will forgive me for referring to it by that term. Unquestionably, that right would be gravely impaired if these proposals were implemented. I believe that they challenge the whole basis of our criminal system with its presumption of innocence and the basic axiom that the prosecution must prove its case beyond a reasonable doubt.
The abolition of the caution, or the introduction of the new caution which is suggested, would represent very little security for the innocent man. When I think of some of the people whom I am called upon to defend—people who are inarticulate and frightened by the very fact that they are in a police station, and who are sometimes innocent—I get very worried indeed about the drawing of an inference of guilt from silence. People may become terribly confused and anxious, perhaps worried about the women with whom they are associating, and do not want to reveal the whole truth in case it gets back to their wives. If a man was tense and frightened because he was in a police station under interrogation, it would be unfair if the failure to answer were held against him, and the failure to provide a complete defence then and there would be a matter for comment to the jury.
Although I feel that the three proposals made by the hon. Member for the Isle of Thanet would certainly help in the interim, none of them would deal with the question of intimidation or other abuse by an unscrupulous police officer. That is the difficulty. How can we overcome such problems? I am not entirely happy about the suggestion that if an accused person were to sign a statement it would provide the sort of safeguard the hon. Gentleman talked about. One knows how often people challenge state 958 ments written out by the police, frequently dictated by the police, with the accused being asked to sign them. I worry about the negative verbal that may arise from this. A failure to provide a defence, which is a matter for comment, may introduce the new notion of a negative verbal by the police officer. That is a danger to which we should be alerted.
I, too, believe that we should not accept lightly the recommendations with regard to hearsay evidence. The situation is not the same as in civil cases. In criminal cases a man's liberty is at stake and we should be more vigilant than we are in the rules relating to civil matters.
The other matter to which I wish to refer is the question of manufactured evidence, which is dealt with in the report. Those who produced the report are rightly concerned to prevent fabrications of evidence by the defence. Yet nothing is said about preventing fabrications of evidence by the prosecution. That is something about which we should be concerned. It is reflected in the committee's approach in Clauses 31 and 32 of the draft Bill.
I conclude by quoting a passage which my hon. and learned Friend the Member for Stoke Newington and Hackney, North did not quote in the letter from Dr. Manfred Simon. It said:I wish to state in conclusion that its proposals seem to me the first timid attempt to dismantle the venerable fortress built by many generations of British lawyers to protect the innocent and to challenge the arbitrary action of Government. It is a sad illustration of the insidious process whereby standards of even the most civilised countries can, under modern pressures, subtly but irresistibly be eroded.With the pressure that has been exerted upon the Government tonight, and in another place, I sincerely hope that those dangers to our society will not arise.
§ 7.45 p.m.
§ Mr. F. P. Crowder (Ruislip-Northwood)
I agree wholeheartedly with everything which has been said on both sides of the House. Let me recount a personal experience in these matters.
About 12 years ago I witnessed an accident at night. The police appeared on the scene very quickly and it was thought that the person who was driving one of the motor cars was, under the old 959 Act, under the influence of drink. Accordingly, I was asked to attend the police station immediately. The police officer wrote out a statement with which I helped him. At the end he wrote that the accused's speech was slurred, he swayed, and so forth. I said, "No; he did nothing of the sort. He did not smell of drink, his speech was not slurred, and he did not sway." The police officer put the document in front of me and said, "You are here to help us. Will you kindly sign it?" I said that I would help him because I had seen what had happened, and I was a member of the Bar. That is the sort of thing that the hon. Member for Hackney, Central (Mr. Clinton Davis) spoke about and about which we must be very careful in criminal law.
In regard to the written statement, the Solicitor-General will be the first to agree when I say that I cannot think of any written statement in any serious criminal trial which has been written by the man who made it. It is always written by the police officer. Bearing in mind the amount of money we spend on education in this country, I see no reason why a person against whom an allegation is made should not be allowed to write it himself in his own words and in his own language. Time and again in criminal courts people say, "Oh no. I did not mean it in that way. The police officer wrote it and I signed it. I was under stress in the police station."
People can read and write. Why should they not be entitled to write their own statements? There is the preamble at the beginning, there are the words of the caution, which are words of advice, and there is the signature at the end. All the unfortunate person is probably thinking about at the time is, "Shall I get bail? How soon can I get home to see my wife and family? "
I hope I shall be forgiven for saying this—and I say it with no levity. A speech was made in the House of Lords which had a lot of common sense in it but in which a noble Lord said that any change, no matter how salutary, was to be utterly deplored. I agree that in 1974 that is carrying matters rather a long way. But is there any need for change in our arrangements in the criminal law today? I think they are working very well. All I 960 say is that written statements, provided the accused person can read or write, should be written in his own words and in his own handwriting. It has been said:Thrice is he arm'd that hath his quarrel justAnd he but naked, though lock'd up insteel,Whose conscience with injustice is corrupted.Alas, these are not my words but those of our distinguished poet, Shakespeare.
A statement from the dock should be removed; it is utterly to be deplored. It cannot be cross-examined or touched upon in any way. It has no value. If any legislation is to be put forward by the Government, I hope that it will be short and to the point and that that will disappear.
Another matter to which I wish to refer is contained in the All-England Reports of 1970, Vol. 3. It relates to the case of Mackenzie and it is the sort of feature that we are seeing in cases like that of the Angry Brigade:Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions and give advice, but no one can demand to take part in the proceedings as an advocate contrary to the regulations of the court as settled by the discretion of justice.That matter is giving some concern in the criminal courts and the Crown courts. No one should be represented except by solicitors and counsel in court. If he cares to represent himself, that is a matter for him. But to make a statement from the dock without that statement being considered and cross-examined is to be utterly deplored. It has no value and is a pure waste of time.
Something has been said tonight about the cost and time expended in our Crown courts. If one were to ask anyone from abroad what he most valued and considered of importance and of greatness in this country, I think that first he would say the monarchy and second the administration of the law and justice. It is something of which we are most proud. But the British people are getting justice on the cheap. When one thinks of the enormous sums taken in fines in the Crown courts, and particularly in the magistrates' courts every day, and especially since magistrates work purely voluntarily—apart from the stipendiary magistrates—one can say that the public are getting 961 justice virtually for nothing. Any time which can be spent looking after the liberty of the subject is not to be deplored. We have to proceed with the greatest care in this respect.
We have a very thin House tonight considering this important matter.
§ Mr. Crowder
Indeed—and with particular regard to my hon. Friend the Member for Orpington (Mr. Stanbrook) and my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke). But it is shameful that we are not giving sufficient regard to matters touching upon the liberty of the subject.
I am very concerned about the question of identity in criminal cases. There ought to be some form of corroboration. No one can begin to estimate the percentage or the number of innocent people who are in prison. It is terrible and must be avoided. I hope that the numbers are small but I guess that those who are languishing innocently in Her Majesty's gaols are there on the basis of mistaken identity. That is why corroboration should be made essential in any Bill on this subject.
I was tremendously impressed by the debate in another place in which Lord Salmon said:I do not apologise for very briefly restating what these principles are. Every man is presumed to be innocent until, after a fair trial, he is proved by reliable evidence to be guilty beyond any reasonable doubt The purpose of the law is to ensure, so far as is humanly possible to do so, that no innocent man shall be convicted. We accept, therefore, that it is better that 10 guilty men should go free than that one innocent man should be found guilty."—[OFFICIAL REPORT, House of Lords, 14th February 1973; Vol. 338, c. 1604.]Those are the principles that have been the essence of the law of England throughout the centuries. May they long so remain.
§ 7.58 p.m.
§ Mr. Emlyn Hooson (Montgomery)
I will not follow the hon. and learned Member for Ruislip-Northwood (Mr. Crowder) now, but I will return to some of his remarks.
It is regrettable that such short notice was given of this debate, since this is a matter of great public concern and the 962 contributions tonight have been only from lawyers. I read the report many months ago and various representations were made to me. I cannot remember receiving so many representations from various bodies and individuals on any report as I have received on this one, yet the debate was sprung on us at very short notice.
As a lawyer, I have reconsidered my attitude to the report. So many lawyers have been opposed to it that I have begun to think that it must be right, or at least must have some value, bearing in mind the great tradition of our profession for being conservative in everything that concerns itself. Lawyers are the most radical people with regard to all other aspects of life, but when it comes to reform of their own profession or of the law they are excessively conservative.
My original view was that the main recommendations of the report were wrong, and despite my rethinking of this subject I still think that they are wrong. The report is valuable. It is rare as a report that emanates from distinguished lawyers in that it challenges a traditional view of the law. It challenges our society to restate the traditional view of the law of evidence and to try to justify it in the light of modern conditions.
We face a real dilemma, which has not become as apparent as it should have done from today's debate. For example, we have heard a great deal about unscrupulous police officers. No doubt they exist. But the committee was dealing, and perhaps dealt excessively, with the consideration of unscrupulous crooks who have been taking advantage of the law of evidence. The dilemma cannot be brushed under the mat by the legal profession or anyone else.
The committee was very distinguished. It had a very distinguished Lord Justice, Lord Justice Davies, as its chairman. No one had greater experience of the criminal law than he had. When I first became a member of the circuit of which I now have the honour of being the leader, he was its leader. He was the most successful criminal defender in my experience at the Bar, and he was also a fine prosecutor. Many of the other members of the committee were very experienced. I have the highest regard for Sir Frederic Sellers. 963 No one has more concern for individual liberty than he has.
Therefore, I began my examination of the report thinking that I would agree with it. I agree with a good deal, but I think that its basic philosophy on its main and controversial recommendations, such as the right to silence, was wrong. It seems to me that the report was very much a product of the committee's age. The Minister of State said that the committee sounded various branches of the legal profession about its preliminary conclusions, I think in 1968. It received such replies as to make it think that its eventual report would represent a far greater consensus of opinion than there has turned out to be.
That is understandable because, if I am right in gauging discussion and gossip in robing rooms and so on, 1968 and 1969 were years when we were much more worried about the crime wave than we are now. We are having almost a panic reaction. One of the dangers of the report is that it represents what is almost an over-reaction of a frightened society against some of the developments of our age.
There is no doubt that much of our law of evidence has developed over the years in order to protect civil liberty. I disagree with the hon. Member for Isle of Thanet (Mr. Rees-Davies), who regarded the right to silence as somethings which had evolved in the twentieth century. Surely it stemmed from the privilege against self-incrimination. I think of the Court of the Star Chamber and the Court of the Council of the Marches in Wales, the prerogative courts, which employed torture to extract confessions. The accused there had no protection; there was no privilege against self-incrimination in those courts, although there already was development in the non-prerogative courts which gave him certain protection.
In the case of Miranda v. Arizona, the case in the United States Supreme Court which has been much quoted in the House and in the debate in the other place, the distinguished judge giving the judgment traced very shortly the development of the principle of the right to silence as we have known it. He cited, for example, the well-known cases concencerning John Lilburn, the great leveller 964 in Stuart and Commonwealth times. Those of us who had the privilege recently of reading the very good biography of Cromwell by the wife of a distinguished Member of the House will know that John Lilburn spoke a great deal during the Commonwealth times as well as during the reign of Charles I. He was one of the first to emphasise the right to silence, the right of the accused not to incriminate himself.
Our criminal law has developed and has rightly been regarded as a bastion of civil liberty. As we gained more and more individual liberty, that liberty was enshrined not only in the law but in the rules of evidence administered in our courts. Here we come to the dilemma of our time, a dilemma which the committee Was highlighted. To give that kind of protection to our individual citizens, the law necessarily had to be weighted over the years in favour of the accused.
The purpose of the criminal law is to convict the guilty and make sure that they are punished, and to protect the innocent. The law itself has changed. What was regarded as something that attracted guilt and punishment a few hundred years ago was vastly different from what we regard as attracting guilt and punishment.
As it developed in our democracy, the law was bound to be weighted in favour of the accused. The dilemma in our modern society, in which we have seen the development of highly-organised crime, is that professional criminals take advantage of the law, which has been so weighted in favour of the accused to protect his liberty that what is regarded as an essential protection for the innocent citizen has become a technical mechanism for the organised criminal to exploit, or to hire people to do it for him. There is no doubt that sophisticated international crime has developed greatly in this country in the past 20–30 years.
The problem could perhaps be solved if we could divide those who break the law into two classes. One would be the professional criminal who lives by the proceeds of crime. He is highly sophisticated in his approach not only to crime but to investigations by the police, the whole question of the administration of justice and his trial. Such criminals need a different kind of law; rules of a different 965 kind from those which should be applied to ordinary citizens. But we cannot have one law for one citizen and another law for another citizen.
That is the problem the committee had to face. I think that it came down on the wrong side and that it was so concerned with large, organised crime that it did not realise where its recommendations would lead it.
Having considered the matter carefully, I have come to the conclusion that the proposal to modify the privilege of the right to silence would be an unjustifiable interference with the rights of the individual. It would leave too much to chance. I am sorry to say that, because I believe that those concerned with the administration of the law, those concerned with the police, must find a solution to the problem.
I had the opportunity over the weekend of re-reading the OFFICIAL REPORT of the debate in the other place. I was greatly taken by the speech of that great jurist Lord Reid, who said that he found himself, unusually, in agreement with the fine report which emanated from Justice. He suggested that we should adopt what was virtually a partly inquisitorial system. Modifications to the right of silence are possible and acceptable only if we have something along those lines.
It is, for example, a great protection for an innocent man to be taken within a week of his arrest before a magistrate or some other person who is in an independent position and who is able to ask questions and have questions asked in his presence by one side or the other, and to have the whole conversation properly recorded. That is the right approach and one which would meet with the approval of many people.
The Minister of State, in opening the debate, gave a much more robust defence of the report than was given in the House of Lords. It is interesting to see the difference in approach as manifested here by the Minister of State compared with the speech of the Lord Chancellor—who, of course, spoke from a different viewpoint—in the House of Lords.
The Minister of State said that the committee was not exclusively concerned with the problem of the large, organised gang of criminals. The whole tenor of the report is concerned with the law 966 being too tender to criminals. The committee indicated that it regarded criminals, in that particular context, as the highly sophisticated gangs of today. The committee mentioned, for example, that there was a notably high proportion of acquittals in contested trials on indictment. The committee was wrong in this belief, yet it was sufficient to cause concern in our society.
Statistics are not particularly helpful in this context. The statistics which are given are general statistics. Everyone concerned with courts knows, for example, that there can be a large number of acquittals in cases such as causing death by dangerous driving. There can also be a high proportion of acquittals in homicide cases, which involve emotional considerations and in which the duty of the jury is often to consider the state of mind of the person who has been charged.
However, it is not my experience that there is a high proportion of acquittals in cases in which people are charged with serious crime, such as bank robbery. The general belief of the committee, as expressed in the report, is not justified. Yet there are sufficient acquittals in cases of the kind I have mentioned to concern people who have regard to matters of law and order in our society and to cause them to find other means of dealing with the problem.
§ Mr. Ronald King Murray
The hon. and learned Gentleman has mentioned statistics. I wish to point out that the statistical argument behind the report can be shown to be fallacious by reference to Scottish statistics. The protection of the accused is in Scotland stronger, if anything, than it is in England, yet the percentage of convictions where a plea of not guilty has been taken from accused persons on indictment is much higher in Scotland than in England and Wales.
§ Mr. Hooson
I am grateful for the intervention, which supports all the statistics which have been submitted to me. Michael Zander sent me some statistics, which I received this morning. They were contained in a preview of an article he has written for the Modern Law Review. Those statistics which are available seem to suggest that only limited use can be made of them in any event. 967 It is important for us to consider in the House of Commons the serious question of the alienation of the police in our society. I feel sure that the committee has considered this. We have seen signs of this alienation between the police and the legal profession. We would be foolish to disregard the signs in our modern society of a growing feeling among the police that lawyers are there to obstruct them and at the same time a growing feeling among lawyers that the police often invent or twist evidence. This cannot do the police or the legal profession any good. We all know that there are a few "bent" policemen, and if lawyers are honest they will admit that they know that there are a few "bent" lawyers. It behoves neither the one section nor the other to give any words of comfort to help those weak vessels on either side, on the side of the police or in the legal profession.
It is necessary to devise a procedure which will instil greater public confidence than exists at present in the "verbals," of which we have heard so much today. "Verbals" are that section of the evidence which always cause the greater controversy. We have reached a stage in society where it is widely believed that certain police officers, being convinced that the man in the dock is guilty, gild the lily a little on the "verbals." I wonder how many times a lawyer has looked at the evidence on the depositions and seen that all the evidence suggests that the result might well be an acquittal until he sees a reply of, perhaps, two sentences in the "verbals" which put a different complexion on the whole matter. There must be a greater temptation on police officers to do this if the other evidence is thin and they are convinced that they have the right man.
On the other hand, there are criminals who are so sophisticated that they know that the very "verbals" they have uttered—either their exact words or words very like them—constitute the area for an attack if they are to mount a successful defence. This raises a dilemma for those concerned with defending and those concerned with prosecuting.
It does not seem that the problem can best be solved by implementing the recommendations of the committee on this matter. I have considered the recom 968 mendations carefully. I was at first rather attracted by them. The more I have considered them, the more I have become convinced that they should not be implemented. We return to the question that there should be some permanent record. The only safe way is for the accused to be brought before an interrogating official within, say, a week of his arrest. Lord Reid was right to suggest that this might result in a great saving of time.
The whole House will have been very pleased to hear the Minister of State say that there are to be experiments on tape recordings. This is obviously a valuable undertaking and should be conducted as soon as possible.
There are many points in the report with which I agree and many with which I disagree. The basic and fundamental problem, to which I do not think that the committee found a reply and to which I do not think that the House or the country has yet found a reply, is how to ensure that the individual citizen is protected from oppression when arrested by the police. How do we protect the individual as against the State and yet ensure that our procedures are sufficiently sophisticated and sensible to deal with the problem of the professional criminal?
The report is most valuable. It is right that we should all be asked to consider anew our traditional attitudes and ask ourselves how we justify this or that rule in modern society. For that reason alone, we should welcome the report while being very dubious about its detailed recommendations.
§ 8.20 p.m.
§ Mr. Ivor Stanbrook (Orpington)
It would be a great pity if the very volume of the criticism levelled at the report were to lead to its rejection as a whole. That would not only be unworthy recognition of the work which has been done by the committee and its distinguished members but it would leave undisturbed an area of our law which needs reform—namely, the law of criminal evidence, which has been at the centre of the committee's deliberations.
I recognise that special criticism has fastened upon certain proposals made by the committee, but a great deal of the report has been accepted or ignored and I believe that at least that part of the report deserves to be implemented. The excellent report prepared by the Criminal 969 Bar Association goes out of its way to commend those parts of the report which deserve to be adopted. Indeed, it goes further and makes positive proposals in those areas where there is the strongest criticism.
The reason for our having a report and the need for reform are matters which deserve to be more Closely studied. It is not fair to say that the report stems from a desire to secure a higher rate of criminal convictions. There are recommendations which appear to be favourable to the defence and others which appear favourable to the prosecution.
It is true that there has been public disquiet about the apparently large number of cases in which criminals have escaped justice. That is a matter of public concern and, therefore, a matter of legitimate interest and concern for us all. Since the report was discussed in another place we have had the benefit of a long lecture by the Metropolitan Police Commissioner, Sir Robert Mark. He has expressed public concern about the failures, as they might be called, of the jury system, of the rules of evidence and the dishonesty of some lawyers. It is idle to pretend that the public do not share feelings of that kind.
An examination of the ways in which the law of evidence can be reformed and considered should be borne in mind so that criticisms can be met. It is a matter which is urgent from the public's point of view. Further, it is urgent because the law of evidence in criminal cases is somewhat confused. In another place Lord Diplock called it,illogical and in a mess, and needs to be cleared up."— [OFFICIAL REPORT,House of Lords, 14th February 1973; Vol. 33S, c. 1647.]I believe that the background of the problem is one which is not sufficiently considered against the specific and legitimate criticisms which have been made about some of the proposals.
The first background aspect is the criminal statistics and the appalling rise in the rate of crime. The second is that there is what appears in the public's mind to be a high rate of acquittals in criminal cases. It has been suggested that that is exaggerated and that the rate is not greater than in the past. Statistics are sparse on that matter.
970 Perhaps it is not right for us to consider the reform of the law of evidence without considering the background, for example, in London, where the police force is 5,000 under strength. We should consider how many cases would be more successfully prosecuted and how much evidence could be produced if there were more policemen available in London.
This is a problem of criminal law, of law and order. It is not a problem of the cost of living. It is a matter which ought to be solved, whether it needs more money spent on salaries, equipment or accommodation or on other methods of raising the morale of the London police. These are matters which go to the root of public concern about the enforcement of law and the results of criminal cases.
Secondly, with regard to the high rate of acquittals, we have to consider whether it is the rules of evidence which produce a state of affairs in which, as Sir Robert Mark has suggested, many lawyers are able to twist the rules or take advantage of them to cloud the issues. Is that the only cause? I submit that it certainly is not. There are a number of other reasons for the insufficiently high rate of convictions.
There are, for example, cases where, as a general rule, jurors are less willing to convict than they are to acquit, even when other things are equal. The very climate of our so-called permissive society is one which permits a greater indulgence. It enables a juryman to think that he is entitled to exercise a little more sympathy in cases where he believes sympathy is deserved, in cases, for example, where the defendants are women or children or where, for some other reason, there seems to be some sort of provocation or excuse, notwithstanding the terms of the law and the way in which the jury has to follow them.
In such cases a juryman will not have any qualms about agreeing with his fellow jurors to acquit, even though up to a certain stage he may have been convinced of the guilt of the defendant. He requires more assurance if he is to agree to a conviction. There is a general tendency for juries to be more indulgent towards defendants. For that reason there is a general tendency for the rate of acquittal to rise. We also have the problem, certainly in London, of intimidation 971 of jurors, It is not always intimidation in the striot, violent sense of the word. There are other means, such as influence, which are used by the friends of defendants when approaching jurymen.
It follows, for example in the London area, that it is undesirable for jurymen to be chosen to try the cases of defendants whose addresses are in the same area as their own. There have been a number of long cases at the Central Criminal Court recently, involving a large number of defendants from a particular area of London in which members of juries have sometimes, perhaps inevitably without anyone being able to do anything about it, come from the same district as the defendants. One suspects that this sometimes leads to contact being established and jurymen being induced or influenced not to do their duty as they should. This is perhaps another manifestation of the first influence I suggested.
Then there are the judges. If there is one thing that can be said about the report, it is that with the best will in the world it seems as if there is a desire to circumscribe the actions of judges conducting criminal trials. I believe that the safer and wiser course would be to simplify the law as far as possible and leave more discretion to the judges in the hope that in their wisdom they can take the appropriate course or direct the jury in the appropriate manner. It would be undesirable if we in this country got to the stage reached in some courts in America where the judge has to read out directions to the jury using particular statutory language for that purpose and where his position as a referee of the trial is so closely confined and defined that he has no power of exercising common sense during the course of the trial.
One cannot allow too great latitude. It is clear from one's experience of the courts that too many trial judges make it too obvious to the jury that they think that a conviction is appropriate. When they do that, those of us who practise in the courts find that the jury often tend to go the other way and acquit against all the weight of the evidence. It also follows—unfortunately there are many examples in London—that judges are offensive to counsel and to witnesses, or are generally bad tempered or in some other way obviously biased. On those occasions 972 juries, being English, are always animated by the spirit of fair play and by their nature display an obvious reaction. That spirit accounts for many of the recent acquittals. Of course there are other reasons. A chief reason is certainly that of confusion in the minds of jurors as a case proceeds and at its conclusion.
Very few cases lasting more than a day or so do not introduce certain complex issues which are difficult for a layman to understand and on which he looks for guidance to the judge. Often, however, he cannot get that guidance because of the nature of the rules of evidence.
Many jurymen are genuinely puzzled by aspects of a case. They would like to know the reason why a certain thing was not mentioned or, if it was mentioned, why it was done in a peculiar way and why officers appear to have been led in their evidence at one stage and not at other times. We know of cases in which jurors understand that the antecedents of a defendant are revealed to show that he has a clean character and that in other circumstances, when they are not revealed, the assumption is that the defendant has a bad character. For all those reasons the task of jurors these days could be made easier by a more radical reform of the law of evidence than perhaps some of us are prepared to concede.
I turn briefly to the report. I share some of the misgivings expressed by hon. Members. I believe that the particular criticisms of the abolition of the so-called right of silence ignores the very real possibilities of improvement in this sphere that could be obtained if there were some form of compromise concerning the committee's proposals. I submit that the source of the so-called right of silence—I think that the hon. and learned Member for Montgomery (Mr. Hooson) referred to it—is in the burden of proof being on the prosecution, the right not to incriminate oneself. A defendant may at any time say "I am saying nothing. Under the spirit of our laws it is for the prosecution to prove the matter, and if it cannot do so by its own evidence I cannot be convicted." That is the source of the so-called right of silence. It goes back much further than 1898 when defendants were first allowed to give sworn evidence on their own behalf.
973 Unfortunately, a great deal of the criticism of the report has been devoted to this aspect of the matter on the basis that the right of silence derives from the Judges' Rules of 1898, from the understanding—this is a fact—that since, in our law, a defendant may be told that he need not say anything unless he wishes to do so, there can therefore be no criticism of him if he does not say anything. He follows the invitation and says nothing. It seems to me that this is a genuine difficulty, and in some ways it runs contrary to common sense.
If there is, as there is now, a positive invitation to remain silent in the caution which is administered by the police officer, clearly there cannot be any criticism of a defendant if he so elects. I believe, however, that if the caution were abolished and there were not to be an invitation to him to keep silent, no great harm would occur as a result, because if we simply said that a defendant might say something or not as he pleased, the position would be that what he said could be quoted and if he did not say anything that would be a matter for the jury to consider. We should not go on to say, as is suggested in the report, that his decision to remain silent would be something from which an adverse inference could be drawn.
I do not think it possible in fairness to say that the fact that a defendant remained silent would in some way provide positive evidence on the side of the prosecution. That, I think, would be wrong. It would be going too far. Equally, therefore, if a man remained silent when he was charged and the accusation was put to him, I do not think that that fact could be corroboration, because corroboration is by definition positive evidence of a material particular.
Nevertheless, it is worth considering—I believe that my hon. and learned Friend suggested something of this kind—dispensing with the present absolute right of silence because, if we were to leave it that a man might say something or not as he pleased, it would be open to counsel at his trial to ask "Why did you not say that when you were arrested?" There could be an explanation for it, and no doubt the jury would 974 take that explanation into account when considering his credibility
But the basic proposition, advanced by Lord Reid, is that all interrogation should be fair. Therefore, if one did not give this cloak of the invitation to remain silent to a person being interrogated, one would be able to present the evidence as it stood: either the defendant gave answers to the questions or he did not.
§ Mr. Alexander W. Lyon
The hon. Gentleman has raised a point which the Minister of State raised. I ask him a question which I did not raise with the Minister in my own speech. What is the difference between the prosecution commenting on the absence of an explanation by the accused in interrogation and saying that it is positive evidence for the jury to consider that he remains silent? Surely the effect upon the minds of the jury is the same if one makes an adverse comment and no reasonable explanation is made in rebuttal.
§ Mr. Stanbrook
That is the point. If the hon. Gentleman is suggesting that silence is the rule in court during the trial, one supposes that that will have been the case throughout. If that is so, the defendant has to answer the prosecution's case as presented in such evidence as the prosecution possesses. It cannot be said in the circumstances that a properly directed jury will say that the fact that a defendant is silent is positive evidence supplementing the prosecution's case. If there were not sufficient evidence for the man to be convicted on the case of the prosecution, the fact that he had remained silent would not, I believe, add to the weight of that evidence.
One other thing that is overlooked is that juries are not slaves of the judge or of court procedure. They are generally chosen for the very reason that they are men and women of common sense and worldly wisdom. Therefore, whether or not the judge says anything about adverse inference, it would be perfectly normal and reasonable—it probably occurs in most cases—for juries to take an adverse inference when the defendant was silent.
In discussing this problem we are shadow-boxing and not dealing with the world as it is. Juries are to a great extent influenced by considerations of prejudice and ordinary, robust common sense. 975 Whatever the judge may say, in whatever way he may direct them and however the words which he has to use may be laid down for him by statute, the 12 members of the jury in the retiring room out of earshot of the judge may still come to the commonsense conclusion. We cannot avoid that in any event.
It does not seem to be unfair that we should be able to say in future that if a man chooses to say something in reply to questions that is fine, and that if he chooses to say nothing, that is equally fine. We will not hold it against him in the sense that it is extra evidence against him. But that does not mean that he cannot be asked "Why did you not say it at the time?" That is common sense and what the jury expect, and for that reason the proposal deserves commendation.
§ 8.42 p.m.
§ Mr. Ernie Money (Ipswich)
Like the hon. Member for Hackney, Central (Mr. Clinton Davis) I regret that this has been basically a lawyers' debate. I regret it, first, because we are involved here with something that goes far beyond the law of criminal evidence as an academic subject and affects the basic rights and privileges of every person in this country. That situation was admirably summarised in the remarkable speech made by the noble Lord, Lord Salmon, in which he said:… the law of evidence is necessarily technical, perhaps dull—at any rate, hardly pulsating with human interest. But the issues raised by this Report go far beyond the realm of arid technicalities; they go to the very roots of British justice, which as it now exists commands the respect and admiration of the whole civilised world. The principles upon which our system of justice rests are well known, generally accepted and have hitherto never been threatened. My Lords, they are threatened now, not, of course, intentionally, but nevertheless in my view really threatened by some of the recommendations contained in this Report— OFFICIAL REPORT, House of Lords, 14th February 1973; Vol. 338, c. 1604.]If the House were to vote in support of legislation implementing the basic principles of the report, we should be under no illusion about what exactly we should be doing. We should not be dealing with the technicalities of proof in the way in which in 1968 the House dealt with civil evidence and dealt in other ways which are entirely to be 976 applauded with simplying the question of proof in civil matters. The House would be introducing legislation which would create a shift in the whole principle of the burden of proof. We should be standing at the top of a slippery slope, moving via the hybrid system which the report considers from the accusatorial to the inquisitorial system.
It may be that that is what the House might intend. It may be that this is what in the circumstances of our time there would be a call for from the people of this country—though I do not believe that this would be the case. But at any rate let us be under no illusions as to what we should do if we implemented reform to the extent involved in this report. If this report were to be implemented to any great extent it would basically change the system on which the accused person takes his trial in this country.
I also regret that it has been a lawyer's debate because of the remarks which fell from my hon. and learned Friend the Minister of State when he referred to the natural conservatism of the profession. I think those remarks were echoed to some extent by the hon. and learned Member for Montgomery (Mr. Hooson). This is one of the circumstances in which the legal profession has every right, and indeed every duty, to be conservative. For what it is being conservative about is not privileges of its own, but to bring before the public the question of their fundamental rights. That is why I am sorry that there are so few of the lay Members of the House here to represent the public as such—the issues which involve them.
I hope that at no point will the very distinction of the committee which produced the report override the deep concern which there has been about the nature of many of its recommendations—deep concern expressed in the memorandum of the General Council of the Bar. Although no one would wish to underrate for one moment the immense experience and distinction of the membership of the committee which produced the report, it is right to underline that the members of the committee which produced the memorandum of the Bar Council included seven practising "silks", including one former Treasury counsel and a former prosecuting counsel to the Revenue; three senior Treasury counsel at the Old Bailey, 977 who by the nature of things, are hardly likely to fall over backwards in favour of the accused, and five junior counsel with considerable experience of both defence and prosecution in criminal cases. In the debate in the other place, speaker after speaker whose names carry enormous weight in the legal profession at this time expressed serious concern and doubt about the possible effects of this report.
That is why I say, with respect, that, if there is to be change, let it be change openly done on the open basis that we are to alter our system, that we are to go in for the inquisitorial system, that we are to have some system like the juge d'instruction, and not on the basis that we are changing in some way the details of the system of the law of criminal evidence.
It is right that so much of the time of the House tonight has been on the issue of the right of silence. I think it was my hon. Friend the Member for the Isle of Thanet (Mr. Rees-Davies) who referred to the right of silence having no constitutional basis. It is proper to remind the House how dearly many of the rights which are privileges of the present-day accused were fought for. Legal historians frequently speak in terms of almost embarrassing esteem of Lord Coke, but nothing could be more horrifying to the present-day practising member of the Bar than to read of the way in which Coke behaved in open court to Raleigh during the State trial at Winchester Castle and of the brutality with which no counsel today would dream of treating anyone, let alone a distinguished former colleague.
Indeed, as has been repeated to the House more than once, it was only in 1898, as a result of public concern about the Oscar Slater case, that it was made possible for a defendant to go into the witness box and give evidence in his own defence.
Therefore, although there may be real concern about the possible effects of an adverse acquittal rate, I would ask the House to consider whether, in view of the concern that is being shown—and rightly so—about the sophisticated professional criminal, we are not running a serious risk of eroding our liberties, eroding them at a point where we may greatly need them in future. 978 Again, when one turns again to what at first sight might seem like a mere detailed lawyer's point over the wording of the new caution, and the Judges' Rules these to the public—and perhaps even to a jury may sound technical. But changing from the present caution to one which in the words of the statutory committee would readYou have been charged with [informed that you may be prosecuted for]—. If there is any fact on which you intend to rely in your defence in court, you are advised to mention it now. If you hold it back till you go to court, your evidence may be less likely to be believed and this may have a bad effect on your case in general. If you wish to mention any fact now and you would like it written down, this will be done.—would be to induce the individual to make a statement.
More serious, perhaps, is the inference that could be drawn—and English law has never been based on inferences, but on facts—from "silence in court", that a magistrates' court could commit for trial on the basis of there being no explanation to the police, that a court could hold that there was no case to answer on the same basis, that a court or jury could convict or could hold that there was corroboration of any evidence given for the prosecution. We would have come a long way, if that were to be the case, from the classic definition of the right of silence as summed up by Lord Devlin in 1957 in the case of Bodkin Adams, when he directed the jury in these terms:Dr. Adams has the right not to go into the witness box … and he has not done so. Therefore there is no evidence from Dr. Adams…. But let me tell you this, that it would be in my judgment, indeed more than my judgment—I can add it as a matter of law—utterly wrong if you were to regard Dr. Adams' silence as contributing in any way towards proof of guilt. It does not and it cannot. A prisoner who goes into the witness box goes there for his own benefit and for his own defence … and the duty of the prosecution is to prove their case before even the question arises as to whether he should be called or not.Later he said:You sit to answer one direct question: has the prosecution satisfied you beyond reasonable doubt that Dr. Adams murdered Mrs. M.? On that question he stands upon his rights and does not speak. I have made it clear—have I not?—that I am not criticising that: I do not criticise it at all. I hope the day will never come when that right is denied to any Englishman. It is not a refuge of technicality … the law on the matter reflects the natural thought of England. So great is and always has been our horror at the idea that a man 979 might be questioned, forced to speak and perhaps to condemn himself out of his own mouth that we grant to everyone suspected or accused of crime at the beginning, at every stage until the very end the right to say, ' Ask me no questions. I shall answer none. Prove your case.'If we intend to change that part of our heritage then let us accept that, by doing so, we shall fundamentally change our law, and we shall be doing so basically because of a concern that there are a substantial number of acquittals in the criminal courts today.
I end as I began, with the words of Lord Salmon. He said that during the seven years that he was a puisne judge:' There were not more in all that number than about half a dozen cases in which the jury acquitted when I considered that they ought to have convicted—and, on reflection, when I look back on them I came to the conclusion that at any rate as far as some of them were concerned there was a good deal to be said for the jury's point of view. A 1 or 2 per cent. wrongful acquittal of guilty men is surely a small price to ensure that the innocent should go free. In any event, those acquittals never bothered me, but I should not have slept in my bed if any innocent man had been convicted by the jury. Fortunately, that never happened."—[OFFICIAL REPORT, House of Lords, 14th February 1973; Vol. 338, c. 1605–6.]
§ 8.56 p.m.
§ Mr. Arthur Davidson (Accrington)
I agree with the hon. Member for Ipswich (Mr. Money) that it is a pity that this debate has been almost entirely dominated by lawyers. He is quite right. The issues raised are much more important than merely how lawyers conduct cases in court or what may be the technicalities of criminal procedure. The issues raised by the report go to the most precious freedom that any man has—his right to keep silent and his right to be acquitted if he is innocent.
I am not surprised that this debate has been the exclusive prerogative of lawyers. I disagree with what one or two other hon. Members have said, namely, that if the debate had taken place at another time, perhaps others who were not lawyers would have spoken. I do not think that is true. Anything that is called by as dull a title as the "Criminal Law Revision Committee, Eleventh Report, Evidence (General)" will not pull in the crowds. Many people in the House would say "It only concerns lawyers, so we will leave it to them." Then, when things go wrong, the lawyers are criticised. 980 I agree with the criticisms that my hon. Friend the Member for York (Mr. Alexander W. Lyon) made of the conclusions of the committee. There are one or two good points in its favour, of course. I agree that it strengthens the hand of the defence in one or two of its recommendations, but in the main, if the report were to be implemented—I strongly suspect that this will not be the case—I firmly believe that the result would be substantially to weaken the position of the defence, and it would weaken it for no good reason.
I know that the Minister of State said that the report was not based essentially on this thesis, but underlying the report is the thesis that too many hardened, sophisticated criminals are getting away with it. That is unquestionably the message of the report. There is no definition of what a hardened, sophisticated criminal is, which in itself is an indictment of the report. Neither are there any available statistics in the report to substantiate that thesis.
If one is framing a report and altering the rules of evidence and procedure to fit the need to deal with sophisticated criminals, by and large one is wasting one's time. The sophisticated criminal is in a position to exploit the rules legislation the House passes based on those rules. The sophisticated criminal would have his story ready before being picked up by the police. He would not be unduly affected by the arguments over his right of silence. He would have ready in his mind the facts which he was prepared to disclose and the facts about which he would keep silent. He would have his defence available at the very start, just as he would doubtless have his defence lawyer available at the very start.
Therefore, the harsh and perhaps regrettable reality is that the hardened criminal can look after himself and will continue to do so. He will exploit the law and continue to exploit the protection that the law gives to the citizen, including himself. The people who need the protection of the law are not the hardened criminals. The people who need it are confused, frightened, isolated and, as has been said frequently, inarticulate and unintelligent—people to whom being picked up and interviewed by the police and finding themselves in a police station is a terrifying experience. 981 It is possible, and is frequently the case, that somebody who is weak, inarticulate, frightened, unintelligent and confused—the lot—can also be guilty. But equally true is the fact that a person who is all those things can be and frequently is innocent. The weakness of the report is that it fails to give sufficient weight to the fact that a man may be and frequently is acquitted not because of any defect of the law but for the best reason of all, namely, that he is genuinely innocent.
The damage that Sir Robert Mark's speech may have resulted in—I am sure unintentionally—is to devalue the worth of an acquittal, to give the impression that an acquittal is too often engineered by a trick, by a false alibi or by a sharp, "bent" lawyer. Acquittals in such circumstances are an infinitesimal number of the totality of acquittals. It would be doing a great disservice to the administration of justice if it were thought that there were degrees of acquittal and if the worth of an acquittal were, therefore to be devalued or diminished. An acquittal is an acquittal. If it is thought a good thing, as we are frequently telling people, to win the esteem and respect of our fellow men, it is equally worth while to be found innocent by our fellow men. Therefore, I hope that we never have a state of affairs in the country in which some acquittals are regarded as second-rate acquittals.
I believe that the strength of our legal system, particularly the jury system, is the belief by almost everybody who appears before a jury that the system is fair. He feels that he will get a fair hearing and that he will be protected from pressure, persecution and the abuse of power. He is right. By and large he is so protected.
That is in contrast, as right hon. and hon. Gentlemen will know, with the state of mind of people who appear in magistrates' courts, for instance, on motoring offences. One often hears them say "There is no point in even defending the case. They are bound to find me guilty. The magistrates' courts always believe the word of the police." This is not necessarily true, but it is certainly a belief which is held by a wide section of the community. They do not feel the same, however, about trial by jury. I feel sure that if one were to implement 982 the recommendations of the Criminal Law Revision Committee, the same attitude could well prevail with regard to the public's opinion of the fairness of the jury system.
If one takes away the belief that people will get a fair trial and a proper hearing, one brings about the very state of affairs which Sir Robert Mark and everybody in this House would want to avoid, namely, the belief that the law is not worth while and a tendency to indulge in anti-social behaviour, with a consequent obvious increase in crime.
There has been considerable argument and discussion about the statistics of acquittals. I think that any argument about statistics is an unrewarding occupation. Certainly argument about criminal statistics of convictions and acquittals is even more unrewarding.
I found the figures quoted by my hon. Friend on the latest study by Michael Zander extremely convincing. He quoted a figure which indicated that 6 per cent. of all acquittals were perverse. Broken down, this means that less than 1 per cent. of all cases coming before the higher criminal courts result in what could be called a perverse verdict. That hardly seems to me to be any sort of evidence at all to suggest that hardened professional criminals, or indeed any sort of criminals, are being capriciously acquitted by juries.
The reason why any discussion of statistics is unrewarding and tends to disprove the fact that hardened professional criminals are escaping conviction is that it is extremely difficult to break down the sort of cases which result in acquittal. Amongst the cases which frequently result in acquittal, for instance, are those involving drunken driving. That is hardly the occupation indulged in by hardened. sophisticated, professional criminals.
Shoplifting cases, particularly those involving trivial sums, the stealing of a tin of salmon and so on, frequently result in acquittals. Those are hardly crimes indulged in by professional criminals. As the Solicitor-General knows from his experience when he was appearing in such cases, many are often brought against the advice of the police. Experienced police officers would not prosecute in such cases, but stores often decide to 983 bring prosecutions based on the evidence of store detectives.
Included in the statistics are cases of mistaken identity which, because identity is in issue and because of the arguments about the dangers of convicting put forward by Members on both sides of the House, often result in acquittal. Also lumped in the statistics are cases that have been withdrawn by the prosecution before they have been started; because the evidence is so weak, the prosecution decides to offer no evidence. The result is that the jury is instructed to bring in a verdict of not guilty. That is not a case of a professional criminal escaping due to the rules of evidence. In some cases a person is convicted on a lesser charge and is found formally not guilty on a more serious charge. Those cases, too, are lumped in the "not guilty" verdicts, although the facts of the case have resulted in a conviction. Cases thrown out by the judge as being not strong enough to go before the jury are lumped in the statistics too.
I submit that on any analysis there is no evidence to justify the underlying theme of the report—that there is evidence of hardened, sophisticated criminals being acquitted due to the weakness of the rules of evidence.
While we are talking about figures of acquittals, it should be pointed out that the report does not indicate what figure the committee regards as an acceptable figure for convictions. Understandably the police, who bring prosecutions, do a great deal of research and a great deal of questioning, and are convinced, because they have brought the case, that the accused person is guilty, would like a 100 per cent. rate and would feel that this was the only right and justifiable conviction rate. Naturally, in anything other than a Fascist or a Communist State it is not possible to achieve a 100 per cent. conviction rate. I hope that no one ever suggests that that is right. In any system of law in a democratic society there will always be acquittals, and acquittals which some people regard as unjustified. That is the price we pay for protecting the innocent.
A part of Sir Robert's speech that attracted a great deal of attention was his so-called attack on lawyers. That was the least important part of his speech, 984 because lawyers, like hardened criminals can look after themselves. They are articulate and they will survive. The most important part of his speech was its underlying theme. It seemed like an attack, although he may not have intended it to be, on the jury system itself.
It would be dreadful if as a result of Sir Robert's speech—and I pay tribute to him, as we all do; we are lucky to have a man of such integrity as Commissioner, and he has a very difficult job to do—the public were to believe that the jury system was not working. It would be only one step away from some people advocating its abolition. I am not for one moment suggesting that it would happen under the present Home Secretary or any other in the immediate future, but it could happen if people were to start saying "Abolish the jury system. Let's have something more efficient and speedy. Let's have trial by a single judge". That would be a retrograde step and one to be thoroughly deplored.
I come to the proposals which have formed the core of this debate, namely, the abolition of the right to silence. By abolishing the right to silence one takes away one of the most basic rights—basic in the sense that perhaps it is the one fact of the law about which most people know. Even if they have never had a brush with the law or been interviewed by a policeman, they realise that they do not have to say anything. The value of the caution—even if perhaps it is wrong to over estimate its value—is that at some stage during the questioning, which can be a terrifying experience—even those the police are conducting in a proper manner—the person who has forgotten that right or who is not aware of it is made aware that he is not simply being interviewed about some matter unconnected with himself but is being interviewed about something which might result in his being charged.
The temptation to an unscrupulous police officer to bolster up a weak case, once the right of silence has been taken away, is very great. I agree with everything that has been said about the police. Most police officers conduct their interrogation in a just manner and are scrupulously fair. But it is not always the case. The temptation for a police officer to say, "He never said that" when in fact 985 the defendant said it is irresistible. That not only can happen with the corrupt or the "bent" police officer but is a temptation for the tired, overworked police officer who is carrying out an investigation in the early hours of the morning, as often happens, when he has not had very much sleep, he cannot get anything out of the man and the case does not appear to stand on its feet. When he genuinely thinks that he has the right person, the temptation for him to omit a certain piece of evidence because he knows that omission of it can corroborate certain facts and perhaps put the case on its feet could be irresistible.
I therefore feel that the omission of the right of silence would result in far too great a power being given to the police without its being replaced by any compensating factor of protection for the individual. Certainly the replacement by the new caution which was read out by the hon. Member for Ipswich would be totally inadequate.
A lot has been said about "verbals" and how the person being questioned can be protected from the police officer who is over-zealous or who perhaps puts in a word which has not been said. The suggestions have centred round the proposal that tape recorders should be used in police stations. I am open-minded about that suggestion. I bear in mind that verballing, if it is done, can be done before the police station is reached. I am at a loss to see how that can be avoided by the use of tape recorders.
Another obvious difficulty with tape recorders which has been highlighted in the legendary Watergate case is that they can be tampered with. "Ah, well," someone will say, "Watergate has proved that you can get expert evidence to show that the tapes have been tampered with." It is all right to have a lengthy argument lasting days over something as vital in a national sense as the Watergate tapes, but if one has any concern for trials being conducted in a reasonably expeditious manner I shudder to think what would happen to similar arguments and similar investigations into some minor verballing in an equally minor case involving, for instance a pub brawl—a clutch of Judge Siricas would be needed to settle that.
While tape recordings might possibly put the police on their guard and protect 986 them as well, and also enable the accused to realise that he was making a statement and put him on his guard, I think that the objections are fairly overwhelming. But I welcome the announcement by the Secretary of State that a committee is to look into this matter.
The only other conclusion of the report with which I want to deal is the conclusion that would enable confessions to be admitted as evidence, even if they were obtained by means of threats or inducements, so long as the judge considered them reliable. This is an offensive and totally objectionable conclusion. Admittedly the report says that oppressive treatment would invalidate the worth or the value of the confession or, indeed, the confession itself, but anything that would tend to encourage any officials—for this applies to officials as well as police, store detectives, presumably, or private security firms and so on—to feel that they could go a little bit further than they ought would result in dire consequences to the liberty of the subject.
We all accept that the task of the police is difficult, frustrating and dangerous. Anyone who has prosecuted in courts will know the sense of anger, frustration and disappointment that police often feel when they know deep down, or feel they know, that they have the right man. Maybe they have been tipped off, or maybe their inquiries lead them to believe it. There is nothing worse than spending days and weeks on inquiries and then finding that the man has been acquitted. But it is not their task to decide: it is their task to assemble the evidence. It is for the court and jury to carry on the work from there. It would be a sad day if any outside body were to abrogate to itself the task that has been traditionally that of the courts.
In opening the debate, the Minister said that the Government were open-minded and wanted to bear in mind the views expressed by the House as well as the views which had been expressed elsewhere. I do not think that the Minister needs to be a member of a jury to realise that the views of hon. Members have been overwhelmingly against the report, as have been the views of the Bar Council, the Law Society, the Criminal Bar Association and almost anyone else who has commented upon it. 987 I hope that the hon. and learned Gentleman will be as good as his word, as he always is, and will sense that the overwhelming body of opinion against the report believes that it is based on insufficient evidence and that its proposals would seriously erode the present safeguards for the individual. I hope he will take the report back and give it to the Law Commission or some other body to examine or, best of all, quietly and calmly forget all about it.
§ 9.28 p.m.
§ The Solicitor-General (Sir Michael Havers)
I should like to add my gratitude to the committee for the immense trouble and care that it took during the years that it considered the problems eventually leading to the publication of its report.
This is a "take note" debate and as such has proved extremely valuable. I should not have expected the report to be met with unanimous acclaim. The debate in the other place, the reaction from the Bar Council, the Criminal Bar Association, the Law Society and the many other bodies and professional writers who have considered it certainly put me on my guard. I knew that it would not be an easy ride today.
If I may express one or two personal views—I emphasise "personal"—about the report, I must say that there have been a number of recommendations about which I have at least had some doubts. I have one strong reservation, which I do not think has been mentioned today, about the draft Clause 31, relating to the hearsay rules dealing with confessions or statements made by co-defendants when jointly charged. That seems to be quite impossible.
All of us who have had any experience in the criminal courts know very well that when two or three people have been arrested by the police in the course of an investigation into an offence which they have probably committed together, or are thought to have committed together, they are put into different rooms. They each believe that the other has implicated them and they then make statements in which, in many cases, they seek either to exculpate themselves at the expense of the other men, or at least to play down the part which they played at the expense of the other men. 988 The idea that those statements should be used in court without defending counsel having the opportunity to challenge and cross-examine the maker of those statements and thus the jury having an opportunity to form its own view by seeing the men seems a proposal which will be difficult to accept. That is a personal view.
During the course of the debate, as was quickly pointed out by the hon. Member for York (Mr. Alexander W. Lyon) the right to silence has been one of the principal objections. The hon. Member said that he had come here to bury Caesar and not to praise him. He said that he had doubts about a number of aspects of the report which he hoped would be lost. Perhaps Caesar would have to be hung, drawn and quartered so that something could be buried and the rest preserved. Speaking in the same vein, one might feel sympathy for those members of the committee who, after the report was published, realising from which quarters the attack came, might have said "Et tu, Brute" to some of them.
Some time was spent by the hon. Member for York on the difficulties of making an attack upon a prosecution witness, thus running the risk of letting in one's own client's character. He spoke in moving terms of the look of horror on the faces of the jury when that happened.
Perhaps I may remind the hon. Gentleman of occasions on which a man's character has not been put in either because prosecuting counsel did not seek to do it or because the attack did not go far enough. In spite of that, the accused is convicted, and the jury, who perhaps came back with a little trepidation about convicting, hear the police officer speak about the previous convictions. They heave sighs of relief when they realise that that slight doubt, though not big enough to justify an acquittal, is no longer something which need cause them any anxiety.
In perverse verdicts—all verdicts, all acquittals, all convictions—it is terribly difficult for anybody to analyse how they came about. Not defending counsel, not prosecuting counsel nor anybody else knows.
Very early in my career I defended a man who was charged with driving under 989 the influence of drink. His defence was that he had been working all that day—a Sunday—in a cold store and had inhaled gas and so was unsteady and his car performed the manoeuvres that it did perform. The evidence was very strong against him, but he was acquitted. It was either my first or second jury trial, and I went home very pleased with myself.
About three days later somebody came up to me in the street and said, "You won't know me. I was a juror in that case." I preened myself and thought I should be told how well I had done. He said, "Of course, your chap was guilty, but we thought, ' Good man; he had worked all Sunday to save that chap's stock in his cold store'; we could not possibly convict him". That was a perverse verdict.
Equally perverse are those about which the hon. Member for Accrington (Mr. Arthur Davidson) spoke—the shoplifting cases. One can see it exactly: as a recorder I have tried a number of those cases; it may be the elderly lady, or the professional man, a teacher or somebody of that sort, who, for the price of 3s 6d worth of stewed steak, is liable to have his professional career finished. If one applies the term strictly, those are perverse verdicts.
From such of Mr. Zander's report as I have been able to read, it having come into my hands only just before the debate started, and from the correspondence in the papers today, I think that it is still too small a sample for me to be sure. A much more detailed inquiry ought to be made. Acquittals can follow so many different reasons. My hon. Friend the Member for Orpington (Mr. Stanbrook) gave a number of examples, and I could give others—long delay, complication of the case, too much paper; sometimes the photostat machine does not help the prosecution, too many counts in the indictment, too many defendants in the dock, delay, and so on.
Those are various reasons why a jury sometimes despairs about a whole case. In the end the jurors become so confused that even though a judge, seeking to help them, takes three days to sum up, it probably would have been better—as one judge at the Old Bailey was famed for doing—to take half a day and do it 990 much more efficiently and often get the right verdict as a result.
§ Mr. Clinton Davis
The hon. and learned Gentleman said that the Zander report was based on too small a sample. It is a long time since the committee's report was published and it is a year since it was debated in another place. Why have not the Government done some research into the subject?
§ The Solicitor-General
I cannot tell the hon. Gentleman that. A number of matters have to be considered here. It was known that Mr. Zander was going to make this report, because the Home Office and Sir Robert have given him many facilities to carry this out. But it may be that it is not until one gets his report that one sees some of the shortcomings.
I do not accept the general proposition that the basis of the Criminal Law Revision Committee's Report is the treatment of sophisticated criminals. Even if that were so, that is not sufficient justification for condemning it. I should like to see the whole of the law of evidence, particularly criminal evidence, looked at again. Lord Diplock in another place used a phrase about it which I do not remember exactly but which one can paraphrase as "a terrible muddle".
Some of the matters which the Criminal Law Revision Committee considered were not simply on the basis that the number of convictions would be increased but that a certain area of the law was getting so confused and was to some extent so judge-made that it should be looked at again and perhaps—I think probably rightly—put on a statutory basis. That does not mean that I am suggesting that the draft Bill should be accepted. I am anxious that every sort of consideration should be given—that is why this debate has been valuable—to all the views which have been expressed.
§ Mr. Fowler
My hon. and learned Friend expressed sympathy for a fuller inquiry on the lines of that conducted by Michael Zander. Is he saying that the Government are prepared to give sympathetic consideration to producing a research report on their own initiative?
§ The Solicitor-General
That is a matter not for me but for my right hon. Friend 991 the Home Secretary. But I certainly should like to see that fuller inquiry made because it is such a difficult task ever to get this information without doing the one thing that one can never do—that is, ask a jury why they came to a particular verdict.
My hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) raised a matter very close to my heart when he said that if the right to silence were to be altered it should not be given up unless some safeguards could be provided. He said that some sanctity, or almost respectability, had to be obtained, in which case it would be a different matter. This approach has run through practically every speech.
My hon. and learned Friend the Member for Ruislip-Northwood (Mr. Crowder) referred to statements made in notebooks. I have argued for a long time that when the opportunity exists—that would be when two or more police officers are present—one officer can perfectly well make a sufficient note of what is being said, which can then, after the interview or, if it is a long one, when the tea is brought or there is some other natural break, be read back to the accused or suspected person, so that he can be given an opportunity to challenge anything which he says has been wrongly included before he signs it.
This would have a great deal of effect before a jury. All of us have, when we have defended someone, known the second, third and fourth policemen come and give identical evidence. They speak of an occasion probably eight to 10 months before. If one says, "Put down your book and tell me yourself" he says, "I have no recollection of the incident".
I have said, "If there were 30 of you there and they were all brought here in a bus, would they all say exactly the same?" The officer says, "Yes." because, in the case which I regret my hon. and learned Friend the Member for Ruislip-Northwood apparently lost in 1955, Lord Goddard agreed that two police officers were entitled to put their heads together to get an accurate recollection of what had happened. When they had no recollection save for their note, one can imagine what could be said, if one wanted to make a joke about a serious matter. 992 It is like a Greek chorus, with the senior police officer at the table writing it down surrounded by all the others. If skilled counsel say what I have suggested, in the course of cross-examining police officers, they make such a farce of the whole thing that juries are inclined to disregard the police evidence, although it may be absolutely accurate.
I do not say that in a sense of criticism of the police, because such evidence has been accepted by the Court of Criminal Appeal since 1955. But the police might like to consider—this is entirely my personal view—whether the system, if properly cross-examined to by skilled advocates, becomes in the end counter-productive to them when the cases are considered.
The hon. and learned Member for Stoke Newington and Hackney, North (Mr. Weitzman) spoke of confessions and trials within trials. He said that it was easy for the police to deny that any threats or improper inducements were made. In some cases there may have been the most trivial breach of the Judges' Rules. The police officer may have hinted to the accused that he will not let him see his wife until the next day, or may have said, "We shall have to talk about bail after you have made your statement." The accused probably says that the statement is true, and it therefore seems to me illogical that such a confession can be excluded even though the persuasion used was not enough to render it unreliable.
There is something to be said for a reconsideration of the position with regard to confessions, where whatever has been done is not enough to make them reliable, and where the word "oppressive" in the report, or whatever phrase one likes to use, gets nearer to the fundamental truth that should exist in those circumstances.
My hon. and learned Friend the Member for South Fylde (Mr. Gardner) spoke in slightly emotive terms of the risk of an abuse of power by the executive if the rule of silence were taken away. In fact, we are dealing with police officers at the initial stage of an investigation. My hon. and learned Friend said that if possible the notes should be signed. I have great sympathy with this.
I have thought for some years that the caution as such is almost a joke. If 993 we are to alter the right of silence in any way, what sort of safeguards are suggested by the debate? One possibility is not to have "verbals" put on. The phrase that particularly impressed me was "the injustice of the non-verbal", where somebody has given an explanation which should go before the jury but which is conveniently forgotten by the interviewing police officer.
We have had a helpful debate. Various suggestions have been made, although at the top end I can see a great deal of difficulty about finding a number of magistrates prepared to be called out of bed in, say, the West End of London on a busy Saturday night after a Cup Final. That would probably stretch their resources. We had other alternatives suggested, down to the tape recorder and having a solicitor available. There is now the sort of early-warning system which will be of some assistance later with solicitors, but it does not apply at this stage. There is also what I have suggested might be at least a stop-gap, the signing of the notes taken in the notebooks in the proper circumstances.
One can see exactly what the hon. and learned Member for Rowley Regis and Tipton (Mr. Peter Archer) meant about the public debate having gone cold. If we had not had the Zander report so beautifully timed for this morning, the public debate might have been a little chillier than it has been. I have no doubt that what has been said in the House today will stirr up the debate again. I hope that it will, because every assistance we can be given in this problem will be very welcome to those responsible in the Home Office and to the Law Officers' Department in the advisory capacity. I congratulate the hon. and learned Member particularly on the coining of the phrase "the injustice of the non-verbal".
My hon. Friend the Member for Nottingham, South (Mr. Fowler) gave the case for change, which he put under a number of headings, one of which was the research approach. He said that Mr. Zander's report had been valuable and interesting, but I should like to see a more detailed study if it is practicable. There are objections concerning Mr. Zander's report. It is not necessary to go into detail about this, but the method he used could be open to criticism.
994 It is not all that important that we should have to establish that professionals are getting away with it. That is not the only test. Consideration must be given to a much wider issue, as to whether the general law of evidence in criminal cases has got into such a muddle that it has to be tidied up.
The need for the accused's words to be accurately recorded is common ground in the House. The availability of legal advice, which has also been mentioned, raises a difficulty which cannot be resolved in any compulsory way, such as by having solicitors available to be called out at all times. However, we are moving by stages to try to have solicitors available at a much earlier stage after a charge has been made against an accused person.
I agree with the view of the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) that the right to silence is not absolute. The problem here is where to draw the balance. The hon. and learned Gentleman raised a point which I had not thought of, but I shall now look into it. It is the question of draft Clause 31 having an effect on our identification procedures. I had formed such an antagonistic view of draft Clause 31 in the other respect which I have indicated that I had not considered the point which the hon. and learned Gentleman raised. I shall look into it and, if necessary, write to him.
There was also reference to the Law Commission, particularly the Law Commission in Scotland. The terms of reference of the committee were to:examine such aspects of the criminal law of England and Wales …".There was no intention to pre-empt Scotland. I am surprised that the hon. and learned Gentleman had anxiety about it, in view of the anxiety and care which his opposite number on the Treasury Bench shows when any issue about Scotland is raised. There was no intention in the report or in the draft Bill that Scotland would in any way be preempted.
My hon. and learned Friend the Member for Isle of Thanet (Mr. Rees-Davies) spoke of delay and complained of the short notice of the debate. I cannot deal with either matter, but the delay was to some extent calculated, because after 995 the report was published a number of people, organisations and professional bodies wrote begging the Government to take ample time before any steps were taken. The ample time may have spread a month or two beyond what it should have gone, but, as hon. Members realise, matters cannot always be taken on the days originally intended.
I do not see what would be gained by urgent action being taken by the Law Society. In considering criticisms of the report we must bear in mind who were the members of the committee. Ten of the 14 members, whose names appear on page 3 of the report, were at one time practising members of the Bar or practising solicitors, for example Lord Justice Davies and Lord Justice Lawton. I know Lord Justice Lawton in particular, because he was head of my chambers and was one of the greatest advocates who practised at the criminal Bar since the war. He certainly has never been, in my experience—I think that this would be confirmed by others who have appeared before him—someone who by any stretch of the imagination could be accused of being prosecution-minded. I can only say that if this matter had been sent to the Law Commission the proposals might have been strengthened.
The time has come to gather together all the evidence and reports, to study the debate which took place in another place and this debate, and then perhaps—this is a matter for the Home Office—to make such proposals as it is thought right.
The hon. Member for Hackney, Central (Mr. Clinton Davis) made the sort of comments which I have come to expect and which I sympathise with. He said in particular that the right to maintain silence was a theme which ran right through this debate.
My hon. and learned Friend the Member for Ruislip-Northwood took the strong view that no change was needed, save that the statement from the dock should be got rid of. That is an aspect which was not mentioned by anybody else but on which I agree. It seems inconsistent nowadays to maintain that archaic relic which had to be preserved up till 1898. My hon. and learned Friend seemed to be taking the view that those who wish 996 to alter the right to silence are wrong, because during the speech of the hon. and learned Member for Montgomery (Mr. Hooson), who argued that it was unjustifiable to interfere with the right to maintain silence, my hon. and learned Friend yet again reaffirmed his state of mind by saying, "Hear, hear".
I draw the attention of the House to a pamphlet which, curiously enough, was published in the same month as the committee's report and in which my hon. and learned Friend appears to have taken rather contrary views to that which he has expressed today.
§ Mr. Crowder
I have had the opportunity of having consultations with people with far greater knowledge of the law than I have and who are well known to my hon. and learned Friend. I have rather changed my view. However, I wish the Government would not follow everything I say when I write a pamphlet. It is there for discussion.
§ The Solicitor-General
Perhaps I, too, can now say, "Et tu, Brute!".
The hon. and learned Member for Montgomery, in a most impressive speech which balanced the difficulties with great care and responsibility and outlined the dilemma between unscrupulous police, on the one side, and unscrupulous crooks, on the other, spoke of the attitude which perhaps now exists when juries have to consider cases. The hon. and learned Gentleman welcomed the safeguards of tape recording. I thought that he was absolutely right to say that the report makes us look critically at the rules of evidence.
My hon. Friend the Member for Orpington, who was perhaps the most outspoken hon. Member today in favour of at least parts of the report, spoke of public concern that criminals should escape justice and he gave a number of reasons, to which I have added a few, for juries' acquittals when ordinarily if it had been left to a judge alone the verdict might have been different.
Finally, my hon. Friend the Member for Ipswich (Mr. Money) spoke of the danger of shifting the balance of proof—I quote his words, because they worry me—thus leading us on to a slippery slope via the hybrid to the inquisitorial system. 997 If I suspected what was proposed in the report or if I thought that what was put before the House by way of legislation would lead to an inquisitorial system, I could not support it. I do not think that that is the consequence that must be drawn from these recommendations. When we were speaking of an inquisitorial system I saw the right hon. Member for Stepney (Mr. Shore) come into the Chamber. I wondered whether he had heard "inquisitorial system" mentioned and thought that he had another opportunity to discuss the Common Market.
The hon. Member for Accrington put the matter too high when he said that if the recommendations are accepted it must mean that a man will not get a fair trial or a proper hearing. If the hon. Gentleman thinks about it he will realise that that is putting the matter too high.
§ Mr. Arthur Davidson
If those were the words which I used I must have slightly mis-stated what I meant to say. I meant that if the recommendations are accepted a man will not think that he will get a fair trial. At present he believes that he will. It is important that people should continue to believe that they will have a fair hearing.
§ The Solicitor-General
This has been a useful and valuable debate. I can assure all hon. Members who have taken part, and all those who have encouraged hon. Members to take part, that their reports and recommendations will be considered. As Lord Diplock said in another place, the law of evidence is, 998illogical and in a mess, and needs to be cleared up."—[OFFICIAL REPORT, House of Lords, 14th February 1973; Vol. 338, c. 1647.]All that has happened is that the Committee has recommended ways of doing so. It is worth remembering that many of its recommendations are uncontroversial and that some assist the defence. Other recommendations have met with criticism. Some of that criticism has been severe. Both the report and the criticism are valuable because the report has made critics concentrate their minds and focus on the problem. As the hon. and learned Member for Montgomery said, some of the alterations and variations which have been recommended are valuable and will be considered.
This is not the end of the road because even if the report in the form of a draft Bill was put before the House we would still have the safeguard of both this House and another place where amendments could be made. We are now much better informed of the difficulties than before the report was published. I hope that the final proposals for reform which are ultimately made will not only produce the necessary improvements to the branch of the law which we are considering but will command the support of all those whose experience and learning entitles them to judge.
§ Question put and agreed to.
That this House takes note of the 11th Report of the Criminal Law Revision Committee on Evidence (Command Paper No. 4991).