§ ABOLITION OF RIGHT OF ACCUSED TO MAKE UNSWORN STATEMENT
Lords amendment: No. 171, after clause 54 insert:
V-(l) Subject to subsections (2) and (3) below, in any criminal proceedings the accused shall not be entitled to make a statement without being sworn, and accordingly, if he gives evidence, he shall do so on oath and be liable to cross-examination; but this section shall not affect the right of the accused, if not represented by counsel or a solicitor, to address the court or jury otherwise than on oath on any matter on which, if he were so represented, counsel or a solicitor could address the court or jury on his behalf.
(2) Nothing in subsection (1) above shall prevent the accused making a statement without being sworn—
(a) if it is one which he is required by law to make personally; or
(b)if he makes it by way of mitigation before the court passes sentence upon him.
(3) Nothing in this section applies—
(a) to a trial; or
(b) to proceedings before a magistrates' court acting as examining justices,
which began before the commencement of this section.
Mr. Deputy Speaker
With this, we may take the motion of the right hon. Member for Birmingham, Sparkbrook (Mr. Hattersley) to disagree with the amendment, and Lords amendments Nos. 260, 261 and 5.
§ Mr. Mayhew
The new clause and the associated amendments relate to the proposal that the right of a defendant to make an unsworn statement from the dock should be abolished. An amendment to abolish the 585 unsworn statement from the dock, substantially subsection (1) of the new clause, was moved in another place by Lord Wigoder.
Subsections (2) and (3) and the other amendments were moved by my noble Friend Lord Elton on behalf of the Government. Subsection (2) aims to ensure that a defendant who has not been sworn is not precluded by this provision from making a statement that he is required, by law, to make, or one, after verdict and before sentence, by way of mitigation.
Subsection (3) is needed so that the provision does not affect trials or committals for trial begun before the provision comes into effect. The other amendments are consequential and provide for the repeal of two enactments that assume the continued existence of the right to make an unsworn statement and add to the Bill's long title to reflect the inclusion of this provision.
I hope that it will be helpful to the House in discussing what I regard as an extremely interesting subject if I give a brief account of this history of the right to make an unsworn statement from the dock and the strength of concern about this continuation which moved the Government to urge that Lord Wigoder's amendment be accepted.
Before 1898, the defendant in a criminal trial was not allowed to give evidence, and the unsworn statement provided the only mechanism by which he could say anything by way of answer to the charge against him. Then, in 1898, we had the Criminal Evidence Act, and for the first time it allowed the defendant in a criminal case to give evidence on his own behalf. However, to avoid any suggestion that the new legislation would in some way put pressure on a defendant to give evidence, Parliament thought it right to ensure that an unsworn statement and the right to make an unsworn statement should be preserved. So it was. That was the genesis of its continuance from 1898 to this day.
However, it has become axiomatic, of course, that the defendant has a choice whether to give evidence. That is his right, and the law provides that if he chooses not to give evidence, but simply to say "In our criminal law the burden of proof lies on the Crown to prove guilt beyond reasonable doubt. I do not have to prove my innocence", he is entitled to do so, and it is not open to the prosecution to make any adverse comment to the jury upon the fact that he has done so and that he has failed to give any evidence.
Therefore, the preservation of the unsworn statement is unnecessary to make the right not to give evidence an effective one. By continuing to preserve it, we expose juries to what I believe is a substantial risk of confusion, quite unnecessarily. They are often told to make what they will of facts and allegations which are set out in a statement delivered from the dock without being sworn, although they do not form part of the sworn evidence in the case. They have to make what they can, not only of the evidence that is given in an unsworn statement from the dock and to give it what weight they think fit, but also of a direction on the matter that normally would be along these lines from the judge:Where a defendant makes an unsworn statement from the dock, it need not be read out to the jury, but it is established that the judge should remind them of it and tell them that although it is not sworn evidence which can be the subject of cross-examination, nevertheless they can attach to it such weight as they think fit and should take it into consideration in deciding whether the prosecution has proved its case.586 Such a statement is certainly more than mere comment, and in so far as it is stating fact, it is clearly something more and different from the comments in counsels' speeches. The direction might well continue:What is said in such a statement is not to be altogether brushed aside, but its potential effect is persuasive rather than evidential. It cannot prove facts not otherwise proved by the evidence, but it might show the evidence in a different light.The jury should be invited to consider the statement in relation to the evidence as a whole.
That represents a valiant attempt by judges to give what assistance can be given to a jury about how to regard and consider evidence which is not given on oath in the court, but is given from the dock and is not subject to cross-examination. However, with the best will in the world. I believe that most people sitting on a jury would be inclined to consider it on the opaque side.
A further consideration is that the procedure is capable of abuse. That is far from unknown in practice these days. Defendants may use an unsworn statement to blacken the characters of what may be innocent prosecution witnesses, safe in the knowledge that any criminal record they might have cannot be called into question and that they cannot even be cross-examined as to the truth of the allegations.
§ Mr. Donald Anderson (Swansea, East)
Can the hon. and learned Gentleman cite any researched evidence, other than anecdotal evidence from a judge, which suggests that that is so?
§ Mr. Mayhew
Those who practise in the criminal courts have many experiences of that having happened, although I doubt whether any research findings exist. I do not know. However, even those who contend that we should keep the right would not deny that it is not only capable of abuse, but, on occasions, is abused.
§ Mr. Clinton Davis (Hackney, Central)
Will the hon. and learned Gentleman deal with a point that goes to the heart of the matter? If an arrested person with a record goes into the witness box and alleges that he has been "verballed", and, unbeknown to everybody, the allegation is true, in nine cases out of 10, or even more, he is done for by virtue of the revelation of his character. Does not the hon. and learned Gentleman consider that such circumstances present a strong case for providing some protection of this kind, limited though it is, to deal with the evidence of unscrupulous police officers?
§ Mr. Mayhew
I had intended to deal with such a case and shall do so now. It is the case that if, in the course of giving evidence on one's own behalf, allegations are made which are adverse to a prosecution witness character, it is open to the prosecution, with the leave of the judge—which is an important qualification—to cal evidence to cross-examine the defendant about his antecedents and to, as it were, let the jury know that he is a person of bad character.
The rationale for that is that in some cases fairness and justice requires that somebody who is making allegations of a serious nature, impugning the character of a prosecution witness, ought to have the nature of his own character put before the jury so that the jury can the better weigh the allegations that are being made against the prosecution witness. That is how the law looks at it. However, the judge's discretion in the matter is an important qualification. It is not a dead letter. It is a reality and it by no means always follows that, in a case where 587 an allegation is being made by an accused person to the effect that his alleged confession is not his, his character will be put in.
§ Mr. Kilroy-Silk rose—
§ Mr. Mayhew
I have not finished my point. I am quite good at sitting down when the hon. Gentleman wishes to interrupt, but may I complete my point?
The principles by which the courts exercise the discretion to decide whether or not to allow evidence of an accused person's previous convictions to be adduced are customarily set out in the following terms. The judge may feel that even though the position is established in law—namely, that the defendant has impugned the character of a prosecution witness—the putting of questions as to the character of the accused person may be fraught with results which immeasurably outweigh the results of questions put by the defence and which make a fair trial of the accused person almost impossible.
On the other hand, in the ordinary and normal case he may feel that if the credit of the prosecutor or his witnesses has been attacked, it is only fair that the jury should have before it material upon which it can form a judgment about whether the accused is more worthy of belief than those whom he attacked.
It is well settled that the Court of Appeal will not interfere in the exercise of the discretion of the trial judge unless he has gone wrong in principle or unless there was no material to enable him properly to exercise such discretion. Therefore, it is by no means a dead letter. In many cases the prosecution counsel would not even consider an application to put it—[Interruption.] There are many things that I know nothing about that I have to talk about in the House, but I do know a little about this subject. In many cases it would not occur to people to make that application, and, if it were made, a judge would not allow it. That is my answer. It is to overstate considerably the case for retaining the right to make an unsworn statement to say that if someone has been "verballed" and he wishes to tell the jury about the case, yet he has previous convictions, he is lost without the ability to make an unsworn statement.
§ Mr. Kilroy-Silk
Is not the real answer to suggest that the elimination of the right to make an unsworn statement from the dock would be more palatable if at the same time it were accompanied by the introduction of a tape recording of the interrogation of suspects?
§ Mr. Mayhew
I have much sympathy with that argument. In a debate in the House following the publication of the Philips report the Government implied that they favoured the principle of tape recording. In my county of Kent, the chief constable carried out an experiment— I believe it was in the Dartford area— which proved to be entirely feasible. So I have sympathy with the suggestion.
§ Mr. Arthur Davidson
If that is so, why does not the Minister carry out both of the changes together? What is the rush to get this provision through by itself?
§ Mr. Mayhew
However, although legislation is not required to provide for the admissibility of evidence on a tape recorder— that is frequently admitted today— legislation is needed in this instance.
§ Mr. John Ryman (Blyth)
I suspect that there are no statistics about this, but will the Minister agree that experience shows that judges are most reluctant to allow an application by the Crown to put in the character of a defendant if the conduct of the defendant is necessary for the defence to put its case. Is not it rare for character to be allowed in the circumstances which have been described?
§ Mr. Mayhew
I do agree. That accords with my understanding of the practice. A few years ago it used to be said that the only circumstances in which the character would not be put in was if it were absolutely necessary for the conduct of the defence to make allegations which involved impugning the character of the prosecution witness. That is not now regarded as an accurate or full statement of the law, because there are wider circumstances in which a judge will exercise his discretion and not allow an application by the prosecution.
§ Mr. Lawrence
I am astonished to hear what has been said by Opposition Members and by my hon. and learned Friend. I speak mainly from my knowledge of the Old Bailey and London as opposed to the provinces. Since the Selvey case, it is rare for a man's character to be excluded once he has challenged the integrity or the honesty of a police officer. Although I support what my hon. and learned Friend seeks to do, I should prefer him not to support his case by resting it upon what I consider to be a totally unfounded argument.
§ Mr. Mayhew
I hear what my hon. and learned Friend says, but he will have heard what has been said from quarters more persuasive tonight than the Dispatch Box. Therefore, it follows that there is at least a disparity of practice in the country.
I want to move to some of the arguments that have been adduced in support of the contention that the House should disagree with the Lords in the amendment to abolish the unsworn statement. I am much comforted to have my right hon. and learned Friend the Attorney-General beside me because this is an issue on which the senior Law Officer might be able to assist the House. In another place, the noble Lord Hutchinson of Lullington said that the abolition of the unsworn statement would have unfortunate consequences in the magistrates courts. The unsworn statement, as is suggested, can be used to enable the defendant to make a statement while avoiding superfluous examination. This begs the question of which cross-examination is regarded as superfluous and which as necessary. It was said in the other place that there are umpteen cases in a magistrates court every month in which the clerk says to the defendant, "You can go into the witness box to give your side of the case or you can make a statement from the dock." The argument is that often an accused person will not want to go into the witness box and will say from the dock what he wants to say. It is argued that this is very convenient because it saves time. But that is not the whole story. It is quite improper to say to someone that he can have that choice and not go on to say that if he goes into the witness box he will be cross-examined and will not be cross-examined if he stays in the dock.
589 Once that warning or explanation is given, it is apparent to all accused that their evidence will carry very much more weight if they go into the witness box than it will if they protect themselves from cross-examination by staying in the dock. It is not possible to sustain that line of argument without the implication that magistrates pay no attention to what is said from the dock. Therefore, I do not think that the time saving point in the magistrates court carries the argument for disagreeing any further. If a defence is so short that it is hardly worth going into the witness box, it will not yield material for very protracted cross-examination and it is the duty of any court to ensure that cross-examination is limited to what is relevant.
The unrepresented defendant is able to address the court on any matter to which his lawyer, if he had one, could speak, and any defendant will be able similarly to make a statement by way of mitigation. If the amendment is passed, those courses are still open to him. Given these savings, I find it difficult to envisage circumstances in which the removal of the unsworn statement will constrain the procedure in trials in magistrates courts, except that if the defendant chooses to give evidence he will have to do so on oath like any other witness. That is exactly what the clause seeks to achieve.
But it has also been argued that it is an essential protection for the accused whose line of defence involves an attack on a prosecution witness but who fears that he may thereby become liable to cross-examination on previous convictions. I have said what I wanted to say about that, but I should like to point out how it is open to abuse by an unscrupulous defendant. It is said on the one hand that this is an infringement of the right to silence, as it is commonly called, but during last year's debate on the report of the Royal Commission on criminal procedure we said that we accepted its recommendation that the right to silence should not be modified. That remains our position and any connection between the abolition of the unsworn statement and an attack on the right to silence is imaginary.
I turn to what the sponsors of the amendment appear to regard as its main justification— whether a clause abolishing the unsworn statement should have found its way into the Bill in the first place. There are many measures that it would have been desirable to have in a Criminal Justice Bill. We had to make decisions but the Lords have added this amendment and we therefore have a duty to deal with it on its merits. When one examines the opportunities that are afforded to blacken the name of witnesses who have come to court to do their duty, to give their best account and to tell the truth as it appears to them, it is a matter of great injustice that, from the safety of the dock, with no liability to cross-examination, they can have their bona fides and character blackened. Where police officers believe that such a strategem has been followed, it can lead to temptation to improve upon the truth in another case, in order, as it were, to even up the scales. That is a human temptation. I do not say that it is yielded to very often, but I can visualise circumstances in which it might be.
As long ago as 1972 the Criminal Law Revision Committee recommended unanimously the abolition of the unsworn statement. There is recent very high judicial authority for the proposition that the right to make an unsworn statement has nothing to do with the right of silence; it has to do with the right to lie to the court with impunity.
590 I regard the subject as being extremely important, and I look forward to hearing what the House has to say about it. I commend the new clause to the House.
§ Mr. Arthur Davidson
As the hon. and learned Gentleman has rightly said., the right of the accused to make an unsworn statement from the dock has existed by statute since 1898 and been enshrined in the common law probably since the time of Queen Anne. It is wrong, and of doubtful constitutional propriety, that a right daung back so long—a right involving the liberty of the subject and a fair trial—should be abolished as a result of an amendment, inserted at a comparatively late stage of a Bill in the House of Lords, without any trailer or marker being put down throughout the extensive Second Reading and interminable Committee stage of the Bill in this House. The amendment was introduced not by the Government but by a Liberal peer, Lord Wigoder—for whom I have the greatest respect—and accepted by the Government after the shortest of debates, after no more than four or five peers had made short speeches.
The right, as I have said, is a common law right. It was given to the accused originally because he had no right to make a sworn statement and no right to be represented by counsel. It was a right that was specifically preserved by Parliament in the Criminal Evidence Act 1898 and not, as has been suggested , a right that was inserted by accident. It is wrong that it should be abolished in this almost throwaway cursory manner.
I accept that there is a strong body of legal and judicial opinion in favour of abolition, and there has been for a considerable time, but there is no unanimity among lawyers—certainly not among defence lawyers—in favour of abolition. Some may be in favour of abolition, but there is a strong body of opinion that it is a valuable right afforded to the accused. There is no unanimity ever among Labour lawyers, some of whom are in favour of abolition, but there is a strong body of opinion among defence lawyers that the right is valuable and should be retained.
Why do they feel that that right should be retained? Take the case of the defendant who may be genuinely innocent and who genuinely disputes the evidence that has been given by the police about a statement that he is alleged to have made while being interrogated in police custody. The defendant may genuinely believe that he has been "verballed". That happens. It does not happen as often as is alleged in court, but it happens. The danger is that if the defendant attacks the police evidence and their account of that interrogation, on any assessment he is in severe danger of his previous convictions being brought out in court and of irretrievable damage being done to the outcome of the trial. Of that there can be no doubt.
If the Government intended to abolish the unsworn statement, as my hon. Friend the Member for Ormskirk (Mr. Kilroy-Silk) said in his intervention, they should have done it as part of the process of implementing other procedural and evidential changes, many of which were recommended by the Royal Commission on criminal procedure, which also recommended this change. However, it recommended the change in conjunction with changes affecting the right of the accused not to have his previous convictions produced against him if he attacks police evidence. There is nothing to prevent the Government from doing that.
§ Mr. Kilroy-Silk
It would be possible for the Minister to give an assurance tonight, having already accepted that the two should go together—he said that himself—that he will not activate this part of the Act unless and until the tape recording of interrogations is introduced. He said that this proposal required legislation. He has the legislative opportunity, but he does not need to implement the legislation. He could give the assurance tonight that he will not implement it until tape recording is also available.
§ Mr. Davidson
My hon. Friend has made a good point.
I mentioned what the Royal Commission recommended. In case it is thought that I am mistaken, I shall read briefly from its report. Speaking in favour of abolition of the unsworn statement, it says:Some accused, however, decide to make an unsworn statement because they fear cross-examination on their criminal record, if they mount an attack on the prosecution witnesses, for example, in attempting to show that a confession has been improperly obtained. If the unsworn statement were to be abolished, we consider that this point would need review.I ask the Minister to give an assurance, even at this late stage, that he will not implement the abolition of the unsworn statement without equally dealing with the points about the danger of previous convictions being brought up against the accused.
§ Mr. Clinton Davis
In view of what the Minister has said, would it not be easy for him to activate such procedure by a Home Office directive to police forces?
§ Mr. Davidson
Indeed it would. No doubt he will deal with that.
At the very least, the provision to ensure that tape recordings are used properly to supervise the proceedings in the interview room should be quickly introduced. The Minister should give us an assurance on that matter.
The unsworn statement also has a value for the inarticulate, not very bright and frequently confused accused person, who is instinctively frightened of going into the witness box and of being cross-examined, not necessarily because he has something to hide, but because of the new and horrific experience of being asked questions by a skilful and what to him appears ferocious advocate. He fears that he will cut a poor dash and make a bad impression on the jury. The unsworn statement is a useful half-way house between total silence, with the danger of adverse conclusions being drawn by the jury, and submitting to a cross-examination that the accused feels he will handle badly.
The Minister said that one strong reason for abolishing the unsworn statement is that juries find it difficult to know what weight to give it. It is not evidence on oath and is not subject to cross-examination, and the judge will tell them that it is therefore less cogent than a sworn statement. The Minister read out the direction that Archbold recommends judges to use. I do not know whether juries find it confusing, but I suggest that they find it no more confusing than the other complicated and technical directions that judges have to give about the weight of other evidence—for instance, the value to be put on a statement of one accused implicating another. Judges can direct juries on the probative value of the unsworn statement, and they frequently do so in terms that reveal their disapproval. It is suggested that unsworn statements may result in acquittal of unworthy people, but I do not know on what evidence.
§ Mr. Davidson
There is that danger, but the cunning, sophisticated, professional criminal can, and frequently does, take advantage of many other evidential rules.
The number of people who appear before Crown and magistrates courts is very great, and only about 1 per cent. of the total are professional criminals. To suggest that a valuable safeguard for the bulk of the accused, who do not fall into that category, should be jeopardised because of the tactics and villainy of a very small minority is a dangerous argument and damaging to civil liberties.
As I have said, professional criminals form a very small part of the vast number of people who come before the courts. About 2.3 million people have appeared before the Crown and magistrates courts. About 70,000 of that total appear before the Crown courts. To suggest that the majority are professional villains and, therefore, that this valuable safeguard should be tampered with, is an untenable argument. We do not have to tune our legal system and criminal procedures to cater for the villainy of a very small minority. We certainly do not have to do so without building in other safeguards for the accused who does not come under that category and who may be innocent.
The amendment accepted by the Government preserves the right to make unsworn statements from the dock for people who are not represented by professional counsel. However, once the right to make an unsworn statement has vanished, other than when he is unrepresented, a professional criminal might have counsel to put his case, sack counsel and exercise his right as an unrepresented defendant to make an unsworn statement from the dock. The suggestion that the rationale of this proposal is somehow to curtail the professional criminal from abusing the system is not very strong.
§ Mr. Mayhew
Does the hon. and learned Gentleman agree that in that event the court would be obliged to point out to the jury that counsel could only have been sacked to permit a statement from the dock to be given? In addition, there would be no counsel's speech to the jury at the end of the case. That would be a different situation from that which obtains at present.
§ Mr. Davidson
I do not know whether that necessarily follows. A professional criminal may well think that it is a risk worth taking. He may feel that he has a better chance by sacking counsel and making an unsworn statement than by having counsel to represent him.
§ Mr. Anderson
Would it not be improper for the court to make any such suggestion, as there are a variety of possible explanations for the sacking of counsel at that stage? Surely it would be wrong for the court to suggest that one possibility.
§ Mr. Davidson
My hon. Friend is right. It is not unknown for counsel to be dismissed, and it would be improper for the judge to suggest to the jury the motives for that sacking. He may be entirely wrong. It could be extremely prejudicial.
593 9.15 pm
The Minister has rather pooh-poohed the suggestion by Lord Hutchinson in the debate in another place that every defendant in a magistrates court, who now has the right to make a short statement without cross-examination about why the money would not go into the meter or why his car was not causing an obstruction, might have to submit himself to a lengthier statement and a lengthy cross-examination. That would take up the valuable time of the court. I do not intend to expand on that argument. No doubt other hon. Members will.
One clearly damaging effect of the amendment is that, inevitably, once the right to make an unsworn statement has been taken away, more people will choose to go into the witness box and be cross-examined rather than feel that they have said nothing by exercising their right to silence. The accused will feel that it is the most important thing happening to him. He is the most important person in the court. He feels that he has a right to say something, and he will be extremely dissatisfied and unhappy if he has to maintain the right to silence. Once the right to make an unsworn statement from the dock has been taken away, more and more people will feel disposed not to give evidence under oath—not because they are guilty or because they have something to hide, but because they do not feel that they can acquit themselves well. They will be driven to give evidence under oath very much against their natural inclinations. Counsel may be inhibited in cross-examining the police about the accuracy of their statements if the accused does not say something in explanation.
I do not know what all the fuss is about, or why the Government suddenly feel that they have to take this step. I am not at all sure of the value to the accused of making an unsworn statement. It is unlikely that an acquittal results solely from the accused doing that. There is no evidence to support the view that an unsworn statement makes a difference to the verdict.
On the subject of abuse, the Minister knows only too well that rules of professional conduct lay down that the statement should not be drafted by counsel. It must be in the words of the accused, and frequently he says something that the jury finds suspicious. That may be the case, but it is said by him at his own request and by a man who may be innocent.
One of the dangers of doing away with the right to make an unsworn statement is that it can be interpreted as the slippery slope to abolishing the right to silence. The Minister referred to the recommendation of the 1972 Criminal Law Revision Committee which recommended the abolition of the unsworn statement. I think that I am right in saying that the committee also recommended the abolition of the right to silence. That is something that most of us would fight hard to retain.
What is the urgent need to bring in this amendment? What is the urgent need to legislate on this ancient and well-tried matter of criminal procedure concerning the right of the subject? Why legislate in this covert manner, why legislate on it in isolation, and why do so in a Bill that is meant to deal with other and very different matters of penal reform? The Minister said that the Government had had to amend the long title to accommodate this measure.
I suggested to the Government in a friendly way, why not, if they have it in mind to get rid of the unsworn statement, because it is damaging to the legal process, introduce a measure openly in a Bill based on the Royal
594 Commission's recommendations? I understand that there is to be a White Paper and a debate in the next Session. The Government should bring in this measure in a Bill dealing with a variety of procedural and evidential matters. Any matter affecting the liberty of the subject and the right to a fair trial ought to have a proper, considered and open debate in the House. That is what the Opposition are asking for and that is why I am asking my right hon. and hon. Friends to support my right hon. Friend's motion.
§ Mr. Lawrence
I support the amendment and the Government's position. Whatever else this is about, it is not about the abolition of the right to silence, because the man who is charged with a criminal offence can still be silent. It is not even about a right that is used frequently in the courts, although in recent years there has been more use of the unsworn statement from the dock than I can remember at any time in the past 20 years. It is a right which was not used very often, for one important reason.
This right has the enormous disadvantage that a jury of reasonably intelligent people will ask themselves what is wrong with a man's case if he will not come into the witness box and allow his story to be tested by cross-examination. That is not an aspect that would escape the attention of a jury because a judge would be likely, in the course of his direction, to make it clear—or to make it confused, but at any rate to underline the point—that the distinction between the evidence that is given from the witness box and the statement that is made from the dock is that in the latter case the defendant has not allowed his case to be tested. That is why counsel for the defence thinks long and hard about allowing his defendant to make a statement from the dock before that action is taken.
We are talking about a right which maximises the chances of a guilty man being acquitted. The reason why a guilty man does not give evidence on oath is that he does not wish to be cross-examined. All who practise in the courts appreciate that the best safeguard for truth, if that is what we are after, is cross-examination. A guilty defendant who fears cross-examination has a greater chance of being acquitted if he is not cross-examined. The amendment removes a method by which guilty people are acquitted.
§ Mr. Alexander W. Lyon
A man is not guilty if the verdict is not guilty. I know that the hon. and learned Gentleman thinks that such a man is guilty, but how does he know? Many miscarriages of justice, with which members of the Bar do not concern themselves because they do not go back to court, involve cross-examination of the accused. A person can be convicted, but someone else might turn up and say that he committed the offence. The system is used in such cases and yet a man might be convicted. I am sure that that man's counsel would think that he was aptly convicted.
§ Mr. Lawrence
Because of human imperfections, injustices are likely whatever the system. I am talking about the greater likelihood of the injustice of a guilty man being acquitted because he cannot be tested on his story by being cross-examined. Thai is the principal reason why the right as it exists is used. All hon. Members who practise in the courts know that that is so.
The second reason why a man may seek to make a statement from the dock—and it may be connected with the first reason—is that it entitles him to make an unjustified attack upon the integrity of police officers. 595 Such a man knows that his character will not be put to the test and that the jury will not know the full truth about him. An unscrupulous and unjustified attack may be made upon an innocent co-accused by the man in the dock whose statement cannot be tested and who seeks to place the blame on him.
A third reason involves the direction which a judge must give to a jury. A judge has to say, in effect, "Members of the jury, what you have heard is not evidence, but on the other hand you must not put it out of your mind. It has not been tested, but it may throw light and provide background. You must place on it such reliance as you think fit." Hon. Members who think that a jury can make head or tail of that are sorely mistaken. Who benefits? The guilty man benefits from the confusion.
I have given three reasons why, regardless of the anachronism, the right is clearly used to benefit guilty men.
§ 9. 30 pm
§ Mr. Clinton Davisrose—
§ Mr. Lawrence
I will give way in a moment.
I am as anxious—I think my record in the House shows this—as any Opposition Member to protect the liberty of an innocent person in a court of law. I am as anxious as any hon. Member to see the rapid introduction of the tape-recorded interview. I do not think, however, that the liberty of the individual who is innocent is threatened by the dismantling of this right. It is a subjective matter based on one's own experience, one's own knowledge and one's own feeling. I have never been convinced—that is not to say I have not been wrong—of the innocence of any man who has not wanted to go into the witness box or who has not wanted to remain silent but has preferred to make a statement from the dock. It may be that he was innocent, but I have never been convinced of the innocence of any such man, although I have been convinced of the innocence of some who have gone into the witness box and allowed themselves to be cross-examined.
What is going wrong with our system of justice is that, alone among the nations of the Western world, we have an acquittal rate among those who plead not guilty of about 50 per cent. Hon. Members should think for a moment what that means. Either we have a system where innocent people are being dragged through the courts, charged with serious offences and brought through the expense, the agony and inconvenience of criminal trials, or a lot of guilty people are walking free, which is a gross injustice to law-abiding citizens. Opposition Members prefer to believe that the whole system is corrupt, that it is weighted on one side against the innocent man and that there are countless miscarriages of justice. I prefer to believe—it is my subjective judgment—that we have a system that acquits more guilty people than any other system. That is not good for law and order.
§ Mr. Clinton Davis
The hon. and learned Gentleman makes a large number of assertions backed up by very little fact. How does he know that juries are confused? What statistical evidence is he able to adduce before the House that juries are so confused? Does he attribute the 50 per cent. acquittals entirely to defendants making unsworn statements from the dock? Is that not absurd?
§ Mr. Lawrence
It is as absurd as the suggestion that the hon. Gentleman has made. Of course I make no such assertion. I am merely explaining the general position and saying that we had better do something about it. Otherwise, an enormously high proportion of guilty people are set free into our society to offend again. That is something we need worry about when there is an increase in the amount of serious and violent crime. It is a burden on all hon. Members to do what we reasonably can to diminish that crime.
I do not claim that acceptance of this proposal will bring about a rapid decrease in the amount of crime. I believe that we have to tighten up where we can reasonably do so. A system that allows the guilty man to have a 50–50 chance of acquittal if he pleads not guilty is one that does not serve society and which encourages crime. A man may commit a dozen crimes before he is even detected. He is then brought before a court on a plea of not guilty and has a 50–50 chance of acquittal. When eventually he is convicted, he may get a pat on the head and twopence out of the poor box. Is that any disincentive to crime?
I do not wish to exaggerate the strength of the points being made in support of the amendment, but I have no doubt that the right to make an unchallenged statement from the dock is used more by the guilty than by the innocent and that it results in more acquittals than it ought to do. That is not just my feeling; it is the feeling of judges who have spent many years listening to criminal cases and of many police officers who have spent years striving for the reduction of crime.
§ Mr. Bob Cryer (Keighley)
The hon. and learned Gentleman has made great play with a number of assumptions, but will he bear in mind the fact that the Attorney-General precluded the possibility of research being undertaken into juries' decisions and attitudes to find out about the sort of thing that the hon. and learned Gentleman is alleging? No doubt he voted for that decision and the consequence is that the assumptions that he is making cannot be tested or investigated.
Mr. Deputy Speaker
Order. I hope that the hon. and learned Member for Burton (Mr. Lawrence) will not be tempted too far down that road. The debate is about unsworn statements.
§ Mr. Lawrence
I will quickly answer the important point made by the hon. Member for Keighley (Mr. Cryer). The reason why there has been a reluctance to allow that sort of research to be conducted has nothing to do with the innuendo in the hon. Gentleman's question and everything to do with the inadvisability of allowing people to tamper with jurors and to get at them in a way that may affect their judgment or make other jurors fear that they may be approached. It is a different argument.
It is thought by many practitioners, judges and police officers and by those concerned with justice that this amendment will reduce the chances of guilty men being set free to commit more crimes. Therefore, it is incumbent on all hon. Members to support the proposals. The conquest of crime is vital to us all and is part of the reason why we have been sent here.
§ Mr. Clinton Davis
The hon. and learned Member for Burton (Mr. Lawrence) spoke earlier about jurors being confused, but the arguments that he has adduced, talking about 50 per cent. of acquittals and so on, seem to have confused him.
597 We are discussing a limited and qualified right. I suspect—we have to enter the field of conjecture, for the reasons outlined by my hon. Friend the Member for Keighley (Mr. Cryer)—that the right has little effect on the acquittal rate. Jurors are not ill-informed people. They are reasonably sophisticated and, anyway, they have the benefit of directions from a judge.
I join my hon. and learned Friend the Member for Accrington (Mr. Davidson) in asserting that the House has embarked on an unusual procedure for changing the law. It is not a well-considered proposal and it is not backed by statistical research. Indeed, it is not backed by any research. It is a retrograde step to introduce it at this stage, particularly as it is not accompanied by the sort of protection that the hon. and learned Member for Burton conceded ought to be afforded to defendants against their being verballed.
The Minister of State was less convincing than he occasionally is. I was particularly alarmed to hear the sort of direction that he would give if he were on the bench in the case of a defendant who elected to make a statement from the dock after sacking his counsel. I have always favoured the hon. and learned Gentleman's going back as soon as possible to the practice that he embellished, but I am now a little fearful, because he may be elevated to the bench and if he gives such directions as a judge he will be in all sorts of trouble.
It is wrong to suggest that the proposal is the conventional and agreed wisdom of all members of the bench, the Bar and the solicitors' profession. It is nothing of the sort. The proposal divides the profession and there are sincerely held views on both sides of the argument.
The proposal has crept in curiously and surreptitiously. If the Government think that it is so important, why did they not put it in the Bill originally? If it is so significant surely they would have included it in the original Bill. Why do it this way?
We are discussing the abrogation of a not unimportant right. It does not go to the heart of our criminal system, but it is not an anachronism and all the other things that the Minister and the hon. and learned Member for Burton have suggested.
I wish to outline some of the merits of retaining the present system. I was not convinced by the Minister's argument, because I believe that there are some cases where virtually the only way for some people to adduce evidence in seeking to rebut verbals or allegations of planted evidence is to make a statement from the dock.
The Minister said that a judge is always there to afford protection. He is right to an extent, but that is not the whole answer, because there is a big question mark over this matter. There is no consistency of practice by judges and one does not know how a judge is likely to react.
In any event, there is a severe limitation to the benefit accruing to defendants from following this course because of the warning that judges are obliged to provide to juries. A statement from the dock is not regarded as having anything like the same value as evidence given from the witness given from the witness box. I simply do not accept the argument about confusion of the jury. I have practised a good deal as an advocate in magistrates courts over many years and, although I do not appear so often nowadays, I do not believe that magistrates are confused. Indeed, that argument has not been adduced in the debate.
The people most likely to avail themselves of the right to make a statement from the dock are those with 598 convictions, those who allege that evidence has been planted or that they have been verballed and those who allege that the police or prosecution witness have behaved unscrupulously. because such persons have a record they are in fact most vulnerable to unscrupulous behaviour by the police or by discreditable prosecution witnesses.
This is not intended as an attack on the police as a whole, because the vast majority of them do not behave in this way, but the evidence is overwhelming that some police officers, particularly in the recent past, have behaved unscrupulously. That has been found out, more often than not, after a trial rather than during the course of a trial. There are: too many examples of aberrant conduct by a minority of police officers. In my opinion, such police officers will be given extra incentive, by virtue of the denial of this right, to behave in this manner.
My hon. and learned Friend the Member for Accrington drew attention to people who are frightened by the whole procedure. There are such people. I know that from my own experience. There are many people who are afraid of going to see counsel and even of going into a solicitor's office. For them it is a nightmare. How much more of a nightmare is it for them to have to go into the witness box and be exposed to cross-examination?
The hon. and learned Member for Burton says that this is the way to find out the truth. I am a great believer in our adversarial system, but I do not believe that it is the last word. Many injustices can be caused by its very practice. A rough cross-examination of a person who is inarticulate and ill-equipped to deal with the situation can redound to the disadvantage of the prosecution. One knows that that can happen. Even a too rough summing up by the judge can have that effect. The fact is, however, that in some instances, it can make people extremely confused, particularly if they are frightened, and they do not fall into the character or capacity of skilled professional criminals. So, in my opinion, my hon. and learned Friend made a point of substance.
As I said before, this proposal would not be nearly so harmful if it were ,accompanied by some countervailing protections, which the Minister himself conceded. Such protections are overdue. I invite the Minister to answer this question: if he says that no legislation is required to introduce protections such as tape recorders at police stations, why is he not prepared now, in this debate, if this is the road that he wants to take, to say that the Home Office will give a direction to police forces that tape recorders will be introduced simultaneously with the denial of this privilege? What is wrong with that? He has already conceded the principle. That would establish the Government's good faith in this regard, and it is overdue. Here is the opportunity to do it.
The Minister dealt most unfairly with the criticisms of the practical disadvantages of eliminating this right, which were made by Lord Hutchinson of Lullington. I invite the Minister to recognise that practical disadvantages could flow from this, particularly in magistrates courts. However, that matter is not at the heart of our case.
In conclusion, I want to ask the Minister one practical point. Subsection (3) of the new clause says:Nothing in this section applies—(a) to a trial; or(b) to proceedings before a magistrates' court acting as examining justices, which began before the commencement of this section.599 What does the word "proceedings" mean in that context? Is it the committal proceedings themselves, or does it also apply to the proceedings before the date fixed for committal, which of course can be long and drawn out? I assume that it is the first, but perhaps the Minister will answer that question.
In my opinion, the Minister has not made out a good case, but I should be prepared to agree with him if he made the concession for which I have asked and which I think is reasonable. If he did that, there would be no need to divide the House this evening. I hope, therefore, that he will respond affirmatively to the proposition that I have advanced.
§ Sir Charles Fletcher-Cooke (Darwen)
We last discussed this important matter in a debate on one of the innumerable reports on the reform of criminal procedure. Whether it was the Philips report or another I cannot recall, because reports fall upon us like leaves on Vallombrosa. On that occasion I was emboldened to make a speech in general support of the proposed reforms, particularly in support of this reform that we are discussing tonight. As far as I remember, although I warmed to my theme and developed it at some length saying that it was time that this anachronism was swept away, there was no opposition from any quarter of the House.
The report's authority is strong. I agree that it is a difficult matter and I am impressed by what the hon. Member for Hackney, Central (Mr. Davis) had to say on that question. I have no doubt that my hon. Friend the Member for Orpington (Mr. Stanbrook) will also impress me with arguments in favour of retaining this old right when he catches your eye, Mr. Deputy Speaker. It is a right that existed and was necessary long before any person accused of a serious crime was allowed to go into the witness box.
On balance, I am still as sure that the right should go. That is not because I have any particular regard for the position of the police in this matter. As my hon. and learned Friend the Minister may know, I have adopted the view for some time that I will not support any reform that in any way infringes the rights of the accused in favour of the prosecution so long as the police adopt an obstructive attitude towards audio and video recordings of interviews. I have abstained on many occasions from voting for what are otherwise necessary reforms because we all have a duty—I do not believe that I am pushing at a shut door because I think that the Front Bench agree—with much greater energy than has been adopted in the past to induce the police authorities to take their duties in this regard seriously.
If it were only a question of the balance between the police and the accused, I would perhaps not be supporting the Government quite as strongly as I am. However, it is much more than that. It is a question of the gross unfairness to co-defendants which, to my mind, clearly pushes down in favour of the abolition of this right. I have been engaged in many trials in which I have heard some accused person with a long record abuse his right to make a statement from the dock in order to attack a co-accused and try to offload the blame upon him, a person who may 600 have no record at all. It is grossly unfair on such a co-accused when that happens. Neither he nor his counsel can cross-examine and his co-defendant can get away with murder.
§ Mr. Anderson rose—
§ Sir Charles Fletcher-Cooke
I know that the hon. Gentleman will say that it is the duty of the judge to warn the jury that such a statement is not evidence against a co-accused; and, of course, he is right about that. Such a statement is not evidence.
§ Mr. Anderson
Normally the hon. and learned Member for Darwen (Sir C. Fletcher-Cooke) is farsighted, but he has not targeted correctly this time. I believe that there is authority to the effect that, if an attack is made on a co-accused, or the prosecution, during an unsworn statement from the dock that opens up the opportunity to reveal the character of the person making the attack.
§ Sir Charles Fletcher-Cooke
No, that is not the case. Character cannot be put in in that way. I have the support of my hon. and learned Friend the Member for Solihull (Mr. Grieve), who has a great deal of experience from sitting as a recorder. In those circumstances it seems an enormous injustice to other persons, who must be presumed innocent until the jury declare them guilty. That is what we are discussing. It is not right that such persons should be subjected to and liable to that sort of attack when they cannot answer back. For that reason alone all those persons who are interested in the innocence of persons in the dock should be disposed to remove that anachronism.
§ Mr. Kilroy-Silk
As the only non-legal practitioner who has spoken so far, I have no preconceived ideas on this subject. I have paid a great deal of attention, to what has been said here and in another place. I have not heard one convincing argument in favour of the abolition of the unsworn statement.
The Minister and several of his legal colleagues have made great play of abuses of the unsworn statement that apparently occur in the courts. No doubt there are such abuses. There are abuses in various ways in all walks of life. The fact that it is abused does not necessarily mean that the whole concept of making an unsworn statement from the dock is brought into disrepute. The only evidence that we have been given tonight of abuse of the system is anecdotal and impressionistic. There has been no evidence collated from research, and none of the extravagant claims that were made by the hon. and learned Member for Burton (Mr. Lawrence) are susceptible to objective evidence. Despite being pressed by several of my hon. Friends, he was not able to produce evidence to back his more extravagant claims.
§ Sir Charles Fletcher-Cooke
The hon. Gentleman used the word "anecdotal", which implies that it is hearsay and that it has been heard from someone else. That is the definition of the word "anecdotal". I gave direct evidence of a direct experience when I was there.
§ Mr. Kilroy-Silk
That is still impressionistic. It is not statistically valid or viable evidence. Conservative Members surely know the difference between those types of evidence. A defendant's ability to make an unsworn statement from the dock in minor motoring cases saves a considerable amount of court time. There has been no 601 controversy about that. There has been no suggestion by any hon. Member that that is not an important and positive attribute of that right.
All hon. and learned Members have mentioned their fear that many defendants make unsworn statements from the dock because they have been "verballed" by the police and are afraid that if they make that allegation under cross-examination their previous convictions will be adduced in evidence against them.
If the man is innocent, and if he has been "verballed"—we know that that happens in a few cases—it is absolutely crucial and important that the right that he currently possesses to go into the dock and say so, and let the jury determine whether he is telling the truth, should be retained.
Certainly, if the Minister and those of his friends who are supporting him—
§ It being Ten o'clock, the debate stood adjourned.