Tuesday, 3 April 2018

More on problems with the Criminal Justice System

Centre for Criminal Appeals "the Centre) works to represent prisoners with compelling claims of innocence.  The Centre also seeks to improve transparency and accountability of the criminal justice system.  Full details of the Centre and its work may be seen in its 2017 annual report according to which - "There is an unfortunate misconception that our justice system is the best in the world .... But for those being prosecuted across the country for criminal matters, the situation is radically different - the "gold" standard simply does not apply.  The challenge for the Centre has only become tougher in recent years.  Government cuts have had a profound impact in every corner of the criminal justice system.  It is inevitable that the quality of representation afforded to defendants diminishes, as well as the quality of the investigation of crime by the police.  The inexorable result is that innocent people will be convicted and the demand on the Centre to redress these errors will become greater." 



I would agree with the "unfortunate misconception."  Numerous miscarriages of justice demonstrate serious problems with the system and recently we have seen the failures of "disclosure" in cases such as R v Liam Allan.  Mr Allan was on bail for around 2 years before coming to trial for six counts of rape and six of sexual assault.  The trial ended when the contents came to light of mobile telephone messages sent by the complainant including messages asking Mr Allan for sex.  This material had been held electronically by the Police.  The outcome was that prosecuting counsel (Mr Jerry Hayes) offered no evidence against Mr Allan and the case against him ended.

The Centre refers to "quality of representation."  Mr Allan was fortunate in having excellent representation at his trial.  I see no reason to doubt that representation generally is of a high quality and may even be better than it ever was.  The problem is that restrictions to legal aid do not always make representation possible particularly in the Magistrates' Courts and, even in  the Crown Court, many defendants will end up having to make a considerable financial contribution to their defence.

The Times 3rd April:

That disclosure is a serious problem has been highlighted in previous posts - e.g. HERE and HERE - and The Times (3rd April) declared that "Police are trained to hide vital evidence."


The article states - "A dossier seen by The Times "reveals a commonly held view that the defence is not entitled to see all the evidence.  It discloses the tactics used to stop it being handed over, with officers in at least one force apparently trained in how to avoid making available material that might undermine their case."

The Times article later states that the dossier was obtained by the Centre for Criminal Appeals, a charity, under a Freedom of Information request to the Crown Prosecution Service Inspectorate and the Inspectorate of Constabulary, which collated the unpublished comments when preparing a joint report on disclosure of evidence last year.

The Centre has published 4 documents it obtained under the Freedom of Information request -  Documents obtained by Centre reveal extent of disclosure crisis

These documents - redacted in many places - certainly show problems with Police training but, contrary to The Times headline, do not appear to show extensive training aimed at actually hiding evidence.  In some cases, problems also arise with the sheer volume of material.

The Centre calls for an Independent Disclosure Agency consisting of legally-trained staff to take charge of the disclosure process.   "Not only would this prevent wrongful convictions and re-establish the right to a fair trial, it would put an end to the vast waste of resources caused by our current dysfunctional disclosure regime.”

House of Commons - Justice Committee:

Last week the CPS and Police Inspectors gave evidence to the House of Commons Justice Select Committee.  The session may be viewed via this link and a PDF version of the evidence has been published.  The session refers the Justice Inspectorates Report 18th July 2016 - Making it Fair: The Disclosure of Unused Material in Volume Crown Court Cases.

The joint report noted at para 2.1 - "In its Annual Report and Accounts for 2015/2016, the Criminal Cases Review Commission stated: “In the past twelve months this Commission has continued to see a steady stream of miscarriages. The single most frequent cause continues to be failure to disclose to the defence information which could have assisted the accused.”

The report asked for a strict timetable to address various recommendations.  Almost 9 months have elapsed since the report and it would be good to see a progress report.

DPP:

It has been announced that Alison Saunders will stand down as Director of Public Prosecutions (DPP) in October this year - The Guardian 2nd April.   Some newspapers, e.g. The Sun and Daily Mail, are very damning of her tenure (since 2013) of this important post which heads the Crown Prosecution Service although the service acts "under the superintendence of" the Attorney General - see Prosecution of Offences Act 1985.  The Attorney General appoints the DPP.  I  understand that the post will be advertised and interviews held.

Addendum 6th April - See this Advertisement

A former Chief Prosecutor (Nafir Afzal) is reported by the Guardian to have said - "To all kind souls asking me to be the next DPP – No thank you. I wouldn’t be allowed to say budget cuts are damaging justice. I wouldn’t be allowed to engage more with public we serve I wouldn’t be allowed to criticise police and courts when needed. Role is not independent – it must be.”

Parole Board:

The search will also be on for someone to take on the "poisoned chalice" of Parole Board Chair  following the departure - (did he truly resign?) - of Professor Nick Hardwick.  Although there were Parole Board problems concerning the Radford (Warboys) case, I believe that there are good grounds to think that Professor Hardwick was treated shabbily by the Secretary of State for Justice / Lord Chancellor - Mr David Gauke MP.   Professor Hardwick readily admitted the problems, was seeking to address them and, from the start of his time in post, he sought to improve both the workings of the Parole Board and also public understanding of its crucial role.

The Parole Board ought not to remain in its present form.  It needs to be reconstituted as a truly judicial body - perhaps a Parole Tribunal - with a process of appeal (by either side) to an appellate tribunal.  Such an arrangement would offer greater independence and could be accommodated within the present day Tribunals Structure.

Reform of the Parole Board system was proposed back in 2009 by Justice - A new parole system for England and Wales.   This report suggested an independent Parole Tribunal be established.  The report also proposed appeals to "a dedicated chamber within the Upper Tier."  Such a process might be thought preferable to judicial review.  

As things stand, the Secretary of State for Justice will get to appoint the new Chair, will continue to state that the Chair is "independent", and will also make new Parole Board Rules which will be subject only to negative resolution procedure in Parliament.  It is possible for MPs to challenge any new Rules but this is perhaps unlikely given everything else that is going on in the House of Commons.  

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