By treating people attending court in the way we do, we are actually contributing to the increase in crime. So said Sir John Stevens on March 6, 2002 at Leicester University about crime and the courts.
I am delighted to be here at the University of Leicester -my alma mater – and it’s good to see so many alumni from the university here tonight. The last time I was here was in November when I addressed the Law School on the Challenges of Policing London. It must have been well received or you wouldn’t have asked me back again! This time, I am honoured to address the Leicester Graduates’ Association and the Haldane Society as part of the celebration of Leicester University’s 80th Anniversary.
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Policing challenges
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When I was last here and I spoke about the challenges of policing London, I spoke about the huge responsibilities of policing the capital that were quite unique to the Metropolitan Police. Quite apart from the focus on the capital of every type of protest group and media attention seeker, I described the added responsibilities of protecting the Royal Family, the seat of Government, Embassies and High Commissions. Those are unique challenges to London. But what I would like to speak about tonight, is a common challenge that faces every police service in this country. And that, of course, is crime. I am speaking not only as Commissioner of the Met but more importantly as a representative of ACPO which is leading on this reform with Sir David Phillips and Sir Charles Pollard.
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‘My mission’
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When I first became Commissioner, I set out my mission. It was to make London safe for all the people we serve. That vision would not necessarily come to fruition by the production of bland statistics. In recent years, we have seen crime trends reduce in areas such as burglary where we have the lowest figures for over 20 years. Car crime is less common than it was. But London, as with any area will only become safe, if and when the people who live, work and visit there, actually feel safe. It does not matter what the figures are or how we dress them up. It is about how safe people feel. A phenomenon we are witnessing throughout the country, and particularly in large metropolitan areas, is an upsurge in the growth of gangs; normally youths, who commit robberies. Mostly it is their peers who are the victims – school mates, other gang members or kids who live in their neighbourhoods. But increasingly, their predation is on total strangers who happen to have a mobile phone or a car or a Rolex watch that takes their fancy. The level of violence we are witnessing by robbers intent on stealing is quite unprecedented. In just the last few months, a young girl was shot in the head in a suburban street in mid afternoon for her mobile phone; an estate agent was fatally stabbed in front of his fiancโe for his car; and a family were shot at and one of them killed for a Rolex watch. I do not want to talk about details as these cases are sub judice.
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Out of control youth
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In Inner London, our research shows that there are about 30 to 40 youths on each borough who have grown up in care in an environment of physical and sexual abuse, each and every one – and our research was done in Southwark – had been abused and when they had reported offences they had been ignored or enquiries had not been successful. These youths have been excluded from school for four or five years and who have never experienced any form of parental control. Some wouldn’t even recognise their parents if they met them in the street. Is it any wonder they become desensitised to society’s norms and decencies. Maybe 300 to 400 of them are causing a huge upsurge in street crime and the pattern is repeating itself up and down the country. This relatively small group is having an effect on people’s feeling of safety out of all proportion to their numbers. In London, we have diverted enormous resources, including 250 traffic officers to form a hit squad of 500 to tackle the increase in street crime. In the first two weeks alone, we arrested 400 people for robbery and six thousand people for other crimes. In just one fortnight, we had reversed a 36 per cent increase in street crime to one of six per cent.
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And then what
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What a supreme effort, you may say. Aren’t our police wonderful’ They have arrested all these thugs and muggers and it is now safe to walk the streets again. <br>
But what I want to talk about this evening is: What happens next’ What happens after the police have arrested the perpetrators, collected the evidence, comforted the victims and filled out the paper work’ I was on the beat recently and a juvenile shoplifter was arrested. The officer was off the streets for six to seven hours, dealing with the paperwork and processes. It reduced the police presence in that area from two to one. Sadly, the truth is that the police do everything in their power with limited resources, to react and resolve crimes as they happen. After the offender has been passed into the courts system that is almost the end of police involvement. Police are still involved however in lots of processes to ensure defence and prosecution are given information. As far as the offenders are concerned, the most common scenario is that they go free on bail. They can get arrested again for another robbery. And what happens then’ They go free on bail again. They get arrested again for another robbery or intimidating a witness. And what happens then’…..I won’t go on.
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Eight times bail
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It is not uncommon in London to have muggers released on bail eight or nine times before they face trial for their first attack. You could be forgiven for thinking that the Criminal Justice system is treating violent and abusive robbers like shoplifters. If there is one reason why the criminal justice system exists, it is to protect the victims of crime. It is there to show that when a wrong is done, society has the means to put that wrong right. The criminal justice system is there to provide a measured and lawful means of retribution on behalf of the victim. When you think about it, that is the primary purpose of its existence. In the criminal justice system, victims and witnesses are the customers; the only customers. The defendant certainly isn’t the customer, nor are the lawyers, the administrators, the judges or the police. And just like customers of any service, victims and witnesses should be treated as though they are the only people that mattered. But customers of a restaurant where they experience shoddy service, have one abiding weapon in their armoury. They can take their custom elsewhere. And if enough clients walk away, the service either has to improve or the restaurant closes down. But the customers of the criminal justice system don’t have that option. They can’t take their patronage elsewhere; there is nowhere else. Their only option is to go hungry. So it is all the more important – indeed vital – that we provide standards of excellence that are second to none in our treatment, support and assistance to the victims of crime and the witnesses who we ask to come forward to assist the process of justice. We police need to be at the forefront ensuring it, we sometimes let that excellence slip and we are as guilty as others. If a victim or a witness is called to court, the chances are they will miss work and lose money for which they won’t be adequately recompensed. The chances are that they will not be called to give evidence on the day they attended. Instead they will be left to wait outside the courtroom where they will be vulnerable to intimidation from the defendant and the accused’s family and friends. The last three crown courts built in the London area were built without separate facilities for the prosecution and defence, so witnesses are left milling around together and it can be even worse in magistrates courts. When they are eventually called, they will be in full view of the public gallery as they are remorselessly cross-examined. It is likely that their integrity will be challenged, their character besmirched and their recall of traumatic events questioned. These aren’t just silly perceptions. This is what really happens, day in day out in courts up and down the land.
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Court facts
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Facts we know that at one crown court, out of 140 people called as witnesses in a two week period, only 19 were called upon to give evidence. A survey in Manchester found that a staggering 83 per cent of witnesses who had appeared in court never wanted anything more to do with the criminal justice system. 40pc of witnesses felt intimidated by the defendant or lawyer and this figure rose to 57pc for children. And is it any wonder’ We know of a gun gang who walked free because the judge wouldn’t allow a witness to give evidence from behind a screen. We know of the mother of a murdered child was forced to sit in court within inches of the man who admitted killing him. We know all this and thousands of other cases like it and yet we tacitly condone it and allow it to continue. Is this how we should treat people’ Is this what we call support and assistance’ We let the very people for whom the whole system of criminal justice owes its existence and upon whom it relies, to get treated with what most people would regard as contempt. Research tells us that time and again that fewer and fewer people are coming forward to help police to risk going through the trauma of a court appearance. The public are becoming more and more disengaged from the criminal justice system that is meant to be there to protect them. Are the public more than disenchanted with criminal justice in this country’ Or are they even fed up with it’ And is it any wonder’
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Our choices
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So what choices do the victims and witnesses – our customers – have’ What do they do about the appalling way they are treated’ What can they do’ Short of exacting their own retribution for the wrongs that are done to them, there is nowhere else for them to turn. Their only choice is to opt out of the criminal justice system altogether. The next time they are asked to give a witness statement, they won’t have seen anything. The next time they are robbed, they’ll just keep quiet about it. And so the guilty go free. Offenders go about their criminal ways confident that they are above the law; confident that no-one will go through the ordeal of being a witness to a crime. And confident that even if the case comes to court, the criminal justice system will provide a shield that protects them as defendants, in – seemingly – every possible way. By treating people attending court in the way we do, we are actually contributing to the increase in crime. People are more terrified of the prospect of attending court than they are fearful of being subjected to further crime. That is a worrying situation and one which cannot be allowed to continue. What, then, needs to be done’ We must adapt courts to provided completely separate facilities for defence and prosecution witnesses. There must be no opportunity whatsoever, for intimidation – or even the fear of intimidation.
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Courts suit themselves
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Far too often, courts run themselves to suit themselves. We should run courts to suit the customers of justice not the administrators of justice. You don’t hear of restaurants closing for lunch! Or hotels shutting down for the summer holidays! We need to be more considerate in setting trial dates, court locations and extending their hours if necessary. Courts must respond to the needs of their customers and this includes their customer’s fears. Victims and witnesses must know beforehand what the court process involves and what to expect. This does not mean coaching witnesses. Some victim support schemes do their very best to help. Here in Leicester you have the Leicester Witness Cocoon which is a fine local example of the support that is given by communities to victims. But we shouldn’t have to leave this vital role to locally run charities. Another excellent example of good practice is in the West End of Newcastle where the Cape Scheme delivered 33 convictions in difficult cases – a 100pc conviction rate through the support and help given by the witness support scheme.
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Witnesses and victims
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I understand counsel have to cross-examine. But a much more robust line needs to be drawn so that the cross examination of witnesses doesn’t become harassment. You sometimes wonder who is on trial – the defendant or the victim. We must provide opportunities for people to give their evidence from separate rooms through television links or from behind screens. Justice need not suffer by this. Above all, in everything we do, we must remember the primary purpose of the criminal justice system: To protect the victims of crime. I use the analogy of a restaurant and the diners having the option of eating elsewhere if the service is poor. Let us now go on to look at the kitchen and how the food is prepared. The part of the operation that the customers don’t see. In other words – the trial itself. The criminal trial process should be a search for the truth. In the perfect criminal justice system, not one innocent person will be convicted and not one guilty party will go free. The trouble is, that the development of our legal system in recent times has tended to be to the advantage being given to the defendant. This is understandable if you look at the miscarriages of justice in the 1970s and 1980s and you can see why we needed a balance. But the truth is that miscarriages of justice where the innocent are imprisoned, obviously cause far more outrage than when the guilty go free. The result is a trial process so heavily guarding against the former, that the guilty are walking out almost as if through a revolving door. The imbalance has become so stark, that the prosecution have to conduct themselves by one set of rules (i.e. placing evidence before the court in the public interest) and the defence by another set of rules altogether (i.e. anything goes if it helps to get an acquittal). The fact is that all too often, the criminal trial is simply an uneven game of tactics. There have been no less than four Royal Commissions and Criminal Justice Reviews that have sought to change the system in the last 20 years. (Philips, Roskill, Runciman and Auld). But each time, the entrenched interests of others have ensured that changes that are recommended and promised by successive governments, are never carried through and the game continues and expands. The very fact that the criminal trial process is seen as a game is in itself debilitating to the notion of honesty, morality and getting at the truth. And the impact is not only on the victims, the witnesses and local communities but also on offenders themselves.
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Strutting robbers
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So we see robbers with strings of previous convictions, strutting across the estates of Inner London, having won their most recent game in court – arrogant, untouchable, fearless and ready for anything. The process actually encourages criminals in the belief that crime is merely a game of no consequence to society, local communities or their victims so that they are not held to account. The prosecution must rightly disclose to the defence before the trial, the full evidence on which they rely in support of the charge together with any other material in their possession which might undermine or assist the defence. These type of processes quite rightly came about as a result of miscarriages of justice cases in the 1970s and 80s. In practice courts extend this obligation to include merely neutral material. Boxes containing tons of duplicate copy statements from door to door enquiries, irrelevant CCTV footage, or miles of computer print outs are often delivered to the defence’s office door. Most of it is never looked at. The defence, for their part, have a limited duty to disclose their line of defence. They can decline and frequently do so because the legal provisions are not sufficiently clear or enforceable to be effective. Sometimes, defence disclosure, when it does occur, is so late that there is little or no opportunity for the police to explore it or respond to it. At other times, defence evidence is not disclosed until the trial itself as an ‘ambush’. And so the prosecution are given no opportunity to check its veracity or consider its relevance. On the one side, whilst the prosecution are required to show their entire hand including irrelevancies and neutral material, the defence are bound by no such rules. Objective evidence which points to their client’s guilt is hidden. The defence might decide for example to ‘shop around’ for a forensic specialist who will support their case. If they find one expert who supports their client amongst ten that they approach, they can ignore or hide the opinions of the other nine.
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Lawyers’ playground
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The prosecution must present its case objectively, putting evidence before the court dispassionately and in the public interest. No one surely can argue with that. The defence can seek adjournments in the hope that prosecution witnesses will grow tired and give up. They can seek more and more disclosure of information and material in the hope of finding a loop hole. The defence can play fast and loose even if their client has been caught in the act. They can attack the police and prosecution technical procedures and the characters of witnesses. They can go on ‘fishing trips’ in the hope of finding a loop hole somewhere – they only have to find one. Then the court becomes, I think, a bit of a play ground for lawyers where they can play for weeks on end debating technicalities and the finer points of law. Some people, like Sir Charles Pollard, have said the criminal trial is like the Badminton Horse Trials. The prosecution must complete a clear round; not one bar may be removed from the fence or the case will fail. The defence however can knock down as many fences as they wish, providing they leave just one bar standing – the element of doubt – they will secure victory. I believe we need to have transparency, accountability, and need more debate. It needs to be made more open and understandable. I believe the defence in a trial must play by the same rules as the prosecution. Most people in the criminal trial system support the principle of the prosecution playing the game. But to make it more open and understandable to the spectators, the defence must play by the same rules. The referees should be given more time to prepare and there must be a pre match brief to confirm each side understands the rules of a fair game. In short, the criminal justice system as it stands is not only a game of two halves but a game with two sets of rules. One team can ambush the other with impunity. The other team is shackled by regulations even more complex than the ‘off-side’ rule. The danger is, that if we don’t get it right -and get it right very soon – the spectators – the victims and the witnesses – will walk away or not even bother to turn up. People will become so disengaged from the system that justice will breakdown, law and order will be meaningless and crime will be given a free rein. In his Criminal Courts Review last year, Lord Justice Auld said: ‘A criminal trial is not a game under which the guilty defendant should be provided with a sporting chance. It is a search for the truth. The right of silence is to protect the innocent from wrongly incriminating themselves, not to enable the guilty, by fouling up the criminal process to make it as procedurally difficult as possible for the prosecution to prove their guilt regardless of the cost and disruption to others involved.’
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They’re right
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I believe Auld has got it absolutely right. But then so did Runciman in 1993 when he said that ‘justice is made a mockery when a guilty person walks free because technical loop holes have been exploited, prosecution witnesses wrongly discredited, jurors improperly influenced or victims intimidated.’ Roskill said much the same thing in 1986; and Philips before him in 1981 in the report of the Royal Commission on Criminal Procedure. Time and time again, report after report, tells us that the criminal justice system is in dire need of sweeping reform. Just as the police service is, we are at the leading edge, we are not frightened of reform. Auld has only re-iterated what has gone before. If we ignore Auld in the way we ignored the others who went before him and allow the interests of others to gain supremacy over the rights of citizens to go about their business in safety, we allow a situation where – as others have forecast – anarchy cannot be far away. I can think of no-one who wants to come to that point. I believe we are a long way from anarchy but others don’t. The time has come to listen and act on the recommendations made over the last 20 years and act on Lord Justice Auld’s recommendations now. We do not want to see that report pushed into a desk draw and forgotten.
