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Kicking criminals is easy, but who will speak up for the accused?

16 August 2019

2:15 PM

16 August 2019

2:15 PM

Victims Commissioner Vera Baird says the ‘double jeopardy’ rule – which prevents a person being tried for the same offence twice – should not apply in certain cases to those acquitted of less serious crimes against children. This is a big mistake. It would make Britain’s rules on double jeopardy – a legal principle established for thousands of years – among the most feeble in the West.

Demands for cracking down on ‘criminals’ are easy to make. They are also politically popular. Boris Johnson has realised this with his calls for longer sentences for criminals. After all, tougher treatment of those accused of sexual crime are among the few things that unite the traditional Conservative ‘law’n’order’ right and the ‘woke’ left.

Yet Baird – and Boris Johnson – should know there is a heavy price to pay here. Over the last 35 years, there has been a gradual revolution in criminal evidence and procedure. Almost all the many changes have favoured the prosecution, or alleged victims, and disadvantaged the defence. The one obvious exception – the Human Rights Act of 1998 – has had some modest effect. But this has still done little to slow down the ratcheting away of the rights of suspects, defendants and prisoners.

The right to silence in police interviews, without risking subsequent adverse comment has been abolished. Defendants are required to reveal the detail of their defence months in advance of trial. The prosecution are no longer required to disclose relevant unused material if they judge that it does not undermine their case or assist the defence. The right to challenge jurors without cause has gone entirely. The mandatory judicial instruction to look for corroboration in sexual cases has been abolished, while the scope of cross-examination of complainants in such cases has been severely restricted. Evidence of a defendant’s bad character is now commonly allowed. The admissibility of ‘similar fact’ evidence has become easier. And hearsay evidence is now permitted much more readily.

Other changes to criminal procedure have taken place with little debate or even changes in the law, not least the steady – and now widespread – introduction of bullet-proof glass cages in which defendants are required to sit during their trials. Visitors from the United States, where “docks” of any kind are considered unconstitutional, are horrified to see defendants (who should be treated as innocent) humiliated, cut off from their lawyers, sometimes unable to hear the evidence clearly, and displayed to the jury as though they are dangerous wild animals.

At the same time, huge efforts have been made to make giving evidence for the prosecution easier: witnesses (although not the defendant) are routinely allowed to give evidence from outside the courtroom via video link and (in part) by pre-recorded “ABE” interviews, conducted in an atmosphere far removed from the solemn formality of a trial.

In some rare cases, defence advocates are now even required to submit their proposed questions to ‘vulnerable’ witnesses in advance for the judge’s approval; now that this principle is accepted it would not surprise me in the least if Vera Baird, or some future Victims Commissioner, came up with the idea that more cross-examination should be pre-approved in this way in order to avoid ‘unnecessary trauma’ to victims.

Financial restrictions have taken their toll on the ability of the police to investigate. This affects innocent suspects at least as much as genuinely aggrieved victims. Relentless cuts to criminal legal aid mean that defence solicitors have a financial incentive to process cases as quickly as possible without carrying out time-consuming and meticulous preparation that a proper defence requires. Criminal legal aid is no longer even available at all if your annual “disposable” household income (which includes that of your partner) exceeds £37,500. Another iniquitous rule ensures that those forced to pay for their own defence are virtually certain to be left out of pocket even if they are acquitted.

And if they are not acquitted, either because they are guilty or because they were wrongly convicted, defendants will receive much longer sentences, even before the PM’s review of sentencing takes effect.

A ‘sentencing council’ has been created to ensure ‘consistency’ in sentences. In this, it has been largely successful and sentences have become consistently more severe. The introduction of a prosecution right to appeal against unduly lenient sentences has had the same effect (Vera Baird, incidentally, wants to extend that right). Prison terms for almost all offences have increased, the average sentence in 2018 was 57.1 months, not far off twice as long as it was just ten years earlier. As a result, the prison population has risen steadily from about 45,000 in the mid-1990s to over 83,000 today. As is often pointed out – and just as often dismissed with a shrug – England and Wales now have the highest number of prisoners per capita in Western Europe.

In recent years, the increase in the numbers of prisoners has been accompanied by a reduction in spending on prisons, with the result that some of our jails have become so disgusting, dangerous and degrading that a court in Holland recently refused to extradite a suspected drug smuggler back to this country.

If you are innocent and trapped in our nightmare prison system, the last hope of getting your conviction overturned is the woefully neglected, under-funded and under-staffed Criminal Cases Review Commission. It receives around 1,400 applications every year. As recently as 2013 it had the equivalent of 8.8 full-time commissioners. Now it has the equivalent of 4.3 full-time commissioners.

In 2018-19, it referred just 13 cases (0.9 per cent of the total it received) to the Court of Appeal, the second-lowest number ever (the lowest being 12 in 2017). It has been reduced to virtual irrelevance.

Who knows how many innocent victims of wrongful convictions there are in prison. However many there are, there is not the slightest indication that the Victims Commissioner cares about that sort of victim.

We do not need a Commissioner to demand more convictions and longer sentences. What is needed is someone charged with the duty of speaking out for the causes where there are no votes to be won: the fair treatment of suspects, fair trials, decent prisons, the plight of those falsely accused and wrongly convicted, and an effective system of appealing and reviewing convictions.


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