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Changes on trial?
BILL KIRKMAN
HARD cases, it is said, make bad law. To put it another way, political responses to popular pressure are not the most satisfactory basis for fundamental changes in the justice system.
This reflection is a reaction to some aspects of the British Government's legislative programme, unveiled a couple of weeks ago in the Queen's Speech (that traditional formal occasion on which Her Majesty reads, to the members of the House of Commons and the House of Lords, a statement of the Government's intentions — in effect the Prime Minister's Speech).
The proposed changes are intended to deal with crime and anti-social disorder, and to create a "victim justice system" rather than the current "criminal justice system". There is no doubt about public concern. Street crime in particular has been increasing. Every week in our local newspaper we read of yet another shop or post office that has been robbed, often at gunpoint.
And yet, some of the proposals, if implemented, would change radically the balance of justice from the principle that a person is innocent until proved guilty.
Two in particular have generated anxiety and hostility from lawyers and civil liberties organisations. One is the proposal to end the double jeopardy rule in certain cases — which would enable someone who has been acquitted of a crime to be charged and tried again, if new and compelling evidence (such as DNA) became available.
One can appreciate the argument for this, if the new evidence makes it clear that the acquitted person has in fact committed the crime, but strong safeguards would be necessary to ensure that the second trial was fair. The safeguards would have to take into account that the police and prosecution authorities might use the new rule to say, in effect, "he got off last time so we're going to have another go".
Another change which is envisaged is that juries may, in certain limited circumstances, be allowed to hear details of previous convictions. Again, one can appreciate the case for this change (for example in dealing with a suspect who has a known record of paedophilia), but again it would bring with it the real risk that a suspect would not get a fair trial. It would be easy for a jury to be persuaded that "he's committed robbery (or whatever) before, so it's pretty likely he's done it this time".
Add to the proposed changes the fact that the Government has also indicated its intention of reducing the right to trial by jury (making it obligatory for more cases to be tried by lay magistrates) and you can understand why the proposals are controversial. Add further that, in the wake of the 2001 attacks on the World Trade Center and the Pentagon — "9 Eleven", fears of terrorist attack have led to the introduction of some draconian measures such as, in certain circumstances, detention without trial, and you do not need to be paranoid to feel anxiety.
The Conservative Opposition's home affairs spokesman, Oliver Letwin, expressed the concerns in an article in The Observer, in which, while agreeing with the need to protect victims and witnesses, he wrote "we will not compromise on issues where our historic liberties — the right of the individual to resist the arbitrary power of the state — are under threat".
The principle of innocence until proved guilty is surely a good one. It carries with it, of course, the risk that the guilty may sometimes go free, but that is a risk worth taking where the alternative may be either the arbitrary power of the state, or the power of the populist rabble. That has been seen on several recent occasions, notably when a mob attacked the home of a paediatrician in the ignorant belief that this meant paedophile, and when another angry mob demonstrated outside the court where the suspects in the recent murder of two Cambridgeshire school girls were making their preliminary appearance. (Their trial has not yet taken place.) Is this all far-fetched? I think it is not, particularly given the fact that a number of horrifying miscarriages of justice have come to light in the past few years. By coincidence, on the day of the Queen's Speech, Robert Brown, who had been wrongly convicted of murder, and kept in jail for 25 years, had his conviction quashed on the grounds of "compelling" evidence of police corruption, bullying and non-disclosure of vital evidence. The safeguards took an unconscionably long time to be effective, but reducing them would not obviously make things better. I rest my case.
The writer is an Emeritus Fellow of Wolfson College, Cambridge, U.K.. E-mail him at wpk1000@cam.ac.uk
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