"the idea that reducing the rights of defendants benefits the victims of crime is fundamentally flawed ... the independence of our criminal justice system must be safeguarded from 'spin' and the desire of politicians to make political capital"

Full text of statement:

Balancing Criminal Justice?

We are deeply concerned about the government's proposed changes to our criminal justice system. We believe the suggestion that this exercise is about 'rebalancing the system in favour of the victim' is misguided. Since the celebrated miscarriages of justice of the early 1990s, the majority of changes to the criminal justice system have undermined the rights of suspects and defendants and are likely to increase the numbers of innocent people being convicted.

Whilst we welcome many of the changes which have been introduced to assist the victims of crime, the idea that reducing the rights of defendants benefits the victims of crime is fundamentally flawed. This approach is also unhelpful because it detracts from serious debate about improving justice and is likely to undermine - or even wholly remove - vital checks and balances.

Furthermore, we see dangers in the politicisation of the debate over criminal justice. We believe that the independence of our criminal justice system must be safeguarded from 'spin' and the desire of politicians to make political capital.

Amongst our specific concerns are the following:

1. The removal of jury trial in fraud and complex cases
The government accepts the value of jury trial and has made proposals to ensure that juries become more representative. We believe, however, that removing the right to trial by jury in complex cases such as serious fraud is unacceptable. Jury trial must not be eroded on the grounds of expediency. There are real and obvious dangers in establishing different processes for 'simple blue collar crime' and 'complex white collar crime'. We are not persuaded that juries face insurmountable difficulties in understanding serious fraud cases. In so far as they do, the solution lies in more judicial direction and in simplifying the law relating to fraud.

2. Double Jeopardy
We understand the desire to ensure that justice is done in cases where an acquittal is called into doubt. However, we believe that there are overwhelming practical problems with removing the double jeopardy law.

We cannot accept that it would be possible for a second trial to be a fair trial as there would be a significant risk that jury members would know that the Court of Appeal had ruled that there was compelling new evidence.

Furthermore, it is quite wrong to suggest that a change to the law in this area would pave the way for retrials in cases such as those of Stephen Lawrence and Damilola Taylor. Given that all pertinent evidence was reasonably available at the time, the failure to bring either case to an acceptable conclusion has been a consequence of inadequacies in the police force and the prosecution.

We believe that any relaxation of the bar on double jeopardy might result in repeated prosecutions of unpopular defendants to achieve a popular result, and lead to them being hounded by the media.

3. Admissibility of previous convictions, acquittals and hearsay evidence
We do not accept that adducing previous acquittals and convictions into evidence could have any other than a seriously prejudicial effect unless they are truly relevant to an issue in the case. Weak cases should not be bolstered by prejudice. It greatly undermines the presumption of innocence and risks serious miscarriages of justice.

We do not agree that hearsay evidence should be made more readily admissible, as in the civil courts. In criminal proceedings, the prosecution is required to prove its case beyond reasonable doubt, and a defendant may well face loss of liberty. This is very different to a party facing liability in a civil claim.

Hearsay evidence consists of an oral or written statement made out of court, which is presented to the court in an attempt to prove that the matter stated is true; the maker of the statement is not available to be cross examined. At present, hearsay evidence is only admitted at the discretion of the court and this protection should not be removed.

4. Disclosure
We are alarmed by the tone and language used by the government. Talk of the prosecution needing to 'check out' the defence case is wholly inappropriate.

There appears to be an unsatisfactory blurring between the inquisitorial and adversarial systems of criminal justice, with the trend being to move us closer to the former.

Liberty
Legal Action Group
Criminal Bar Association
The Bar Council

10th November 2002