TWELVE HONEST MEN AND TRUE

First things first.  Given my recent criticisms of Alison Saunders, the Director of Public Prosecutions, I never thought I would be jumping to her defence so readily.  However, I praise her brave decision not to pursue Greville Janner to the grave and beyond following the oft-repeated allegations against him of child sexual abuse. She has justified her decision with reference to his age and ill health, as he is now 86 and suffers from Alzheimer’s. The allegations against him go back to the 70’s, so any prosecution would of necessity relive events more than 50 years ago, and in my professional experience, the only evidence to go before a jury would be the allegations of the complainant and Janner’s denial.  As he suffers from Alzheimer’s, he is unlikely to remember his own name, let alone what he was doing 50 years ago. There would be no corroboration in the legal sense, so the evidence, such as it is, could not be properly tested.  Given the “no smoke without fire” approach likely to be forced upon any jury called to try the case, the pressure on them to convict will be intense and difficult to resist, and any jury brave enough to acquit would be subjected to a media campaign of vilification from the likes of the Daily Mail and its camp followers.  On any view, that cannot be justice, but it hasn’t stopped an outcry against Ms. Saunders and threats of a judicial review of her decision. Despite the fact that Ms. Sanders has been dealt a losing hand, I hope she is brave enough to stand her ground.  These historical ‘witch hunts’ do our criminal legal system no credit whatsoever.

On the topic of juries, it may have escaped your attention that the Criminal Justice and Courts Act 2015 has received its royal assent, and lurking therein at section 69 et seq are several amendments to the Juries Act 1974.  The main thrust is against the use by jurors of ‘electronic communications devices’, also known as the Internet, to research material relevant to the case they are trying, and in addition, sharing the results of their researches with other jurors.

The aim is laudable but nigh on impossible to achieve. The ideal is that an accused person should be convicted or acquitted on the evidence presented by both sides in court and untainted by any outside influences.  Juries are told by the judge at the end of the first day that they are not to discuss the case with anybody outside their number until the end of the trial.  And what’s the first thing they do as soon as they get home? They discuss the case with their nearest and dearest!  It’s human nature. And as the trial goes on and on and on, the more they are going to discuss the evidence with their nearest and dearest and bring them up to date with the latest developments.

With the intrusion of the Internet into every room in the house, it is tempting in the extreme for the average juror to do a little research.  In many cases, the Internet is the average Joe’s only form of communication, they can’t communicate unless they are gawping at their hand held devices, and a totally vacant expression is a sine qua non. Unlike his predecessor in title, the average juror is no longer selected because of his station in life, there is therefore no guarantee that he can even read and write, let alone form any rational judgment.  It is only natural for him to seek help and guidance from wherever he can find it, and the Internet is an obvious starting point.

Back to Greville Janner.  Enough and more has already been written and exposed in the media to fill a sizeable tome. If he were to stand trial, how on earth are twelve honest men and true going to put out of their minds all they have read and heard about the many allegations? Forbidding them to research further on the Internet is slamming shut the stable door well after the horse has bolted, and a fair trial will be impossible. The trial judge will be under enormous pressure to allow the trial to proceed in the face of legitimate objections from Janner’s defence team, and in the likely event of a conviction, the appeal process will follow him into the grave.

The jury system is beset with problems.  We are now in the twenty first century, and it’s absurd to think that a piece of legislation can control the way in which juries approach the task for which they are summonsed. If further proof were needed, read the two notes sent to the judge by the jury in the unnamed journalist’s trial where his conviction was quashed by the Court of Appeal.  It’s called a travesty of justice.  I have argued before, and I argue again, for the abolition of trial by jury, and let’s have an end to this nonsense.

WITNESS COACHING

The Crown Prosecution Service [CPS] is going to encourage its advocates to coach witnesses before they give their evidence in court.  The thinking behind this serious tampering with a witness is to assist them in sticking to the script and to anticipate and deal with hostile questions flying at them from the defence lawyer.

I am a fan of most things American, but not their criminal legal system.  It’s very much like the curate’s egg, good in parts.  Their jury vetting process is a good idea, to weed out the brain-dead morons and the rednecks, but it’s taken to extremes. I suspect that if a juror during the vetting process wanted to serve on the jury, he’d give the right answer to fairly rudimentary questions, and the converse applies.  It reminds me of the McCarthy witch hunts of the fifties:  “Are you, or have you ever been, a member of the communist party?”  What sort of a jackassed question is that!

I remember some years ago prosecuting an actuarial fraud at the Old Bailey, and numeracy and literacy were essential prerequisites if the jury were to follow the evidence. In our system, where there is no jury vetting, once the prospective juror comes to the book to be sworn but before he is sworn, the prosecution or defence can object.  In that case, one of the prospective jurors was illiterate, but by the time we had all spotted it, it was too late, so he sat in the jury box looking totally bemused.  As it turned out, the judge was also totally bemused, so he stopped the trial, entered a not guilty verdict, and made the first tee by three o’clock.  Some sort of jury vetting would have helped.

The sentencing process leaves me totally bemused.  Talking of actuarial fraud, I am reminded of Bernie Madoff, who preyed on the greed of halfwits and made enormous sums of money in the process.  Once his scam was exposed and his grateful clients turned on him like a viper at the breast, he was sentenced to 150 years’ imprisonment.  That sort of sentence is ridiculous and brings the whole process into disrepute.

Lest I digress, back to witness coaching, or ‘prepping’ as the Americans would have it.  The real danger is that a ‘prepped’ witness is likely to give the ‘prepped’ answer and not the truth, the whole truth and nothing but the truth, but some version of it.  It is very tempting to point out to the witness where the weaknesses lie in their account, and to try and paper over the cracks.

I am a believer in the judge taking a firm grip on the trial.  If a witness is confused, it should be for the judge to clarify.  If the witness is getting upset, it should be for the judge to order a comfort break.  And most importantly of all, the judge should bring to an end the questioning of a witness if the questioning is too long or oppressive.  The judge is ideally placed to see fair play.  He should exercise his powers of intervention, which is far better than the very dubious practice of witness coaching.  Finally, it should be borne in mind that the defence must be told in advance that the prosecution witness has been coached.  That seems like an own goal.

TIME TO CALL A HALT

New revelations of alleged sexual abuse or impropriety hit the headlines daily, and the media feeding frenzy continues unabated. The most recent include a Liberal Democrat Party worker and a Prince of the Catholic Church.  Is there no end in sight?

There are so many more interesting and relevant things to report, such as the loss of the United Kingdom’s cherished triple ‘A’ status, determined by a group of unaccountable economists who, unlike the rest of us, apparently have a crystal ball to foretell our financial future. And frankly, does it matter a jot? No.

Then we have the Italian General Election, which, being Italy, breaks all the rules.  Worse still, it leaves Italy ungovernable, which has serious implications for the rest of Europe. Third place in the popular vote goes to Beppe Grillo, I kid you not, who was a former comedian, so well suited to Italian political life.

I mention these important events simply because you may not have heard of them, such is the media preoccupation with sex and sleaze.

In most of these cases, the allegations go back decades.  Nothing was said at the time, or if it was, it was not given credence. But because of media prurience, these historical allegations are given prominence, as if there are true, leaving the accused the only defence available, which is a flat denial.

If and when these allegations get to court, and some of them will, the judge will allow the prosecution to proceed in the face of defence objections that their client cannot possibly receive a fair trial.  In the best traditions of Pontius Pilate, the judge will wash his hands of any responsibility and rule that it is a matter for the jury.  Let’s hope, in the interests of justice, that well worn phrase, that these accused don’t get the same jury recently inflicted on Vicky Pryce!

I have argued before, and I repeat my argument, that there should be the criminal equivalent of a Statute of Limitations which is applied to the civil law.  It can be tailored to accommodate young children who have been abused, usually within the family, with the cut off point when they reach majority. If 18 year olds are qualified to sit on a jury, get married without parental consent, drive a car and buy a property, surely they are old enough to report their abuser.

In these circumstances, the complainant and the alleged abuser can mount proper cases which can be tried and tested in a court of law.  Witnesses for both parties may be alive and can be expected to remember dates and significant events.

I had a case many years ago when a school caretaker was accused of abusing children going back 30 and 40 years. When it came to trial, most of his witnesses were either dead or untraceable.  In reply to a submission that he could not receive a fair trial, the judge ruled it was a matter for the jury.  The jury convicted, and he received 18 years’ imprisonment.

If that is justice, I am Horace the Hedgehog.

THE END OF MAGNA CARTA

The impending fourth trial of the “Heathrow Four” is causing quite a buzz, given the recent decision of the Court of Appeal to deny them trial by jury.

Some of the statistics behind this case are mind boggling. The “Heathrow Four” are charged with taking part in a robbery at Heathrow Airport back in 2004, which netted them £1.75 million. They have to date had the benefit of three trials, all before a jury, and costing the taxpayer £22 million and counting. The last trial was aborted when there were grave suspicions of jury tampering, although the details are far from clear.

The latest episode in this long running saga unfolded in the Court of Appeal back in June last year, when their lordships were asked to rule on the provisions of the Criminal Justice Act 2003. Those provisions allowed for trial by judge alone where there was a real and substantial risk of jury tampering. In short, they ordered the fourth trial, and hopefully the last, to proceed without a jury.

Their lordships considered the cost of protecting the jury, which was estimated between £1.5 million and £6 million, depending on the level of protection offered. The cost was not the overriding factor, nor the questionable use of police manpower and resources estimated between 36 and 82 officers who might otherwise be gainfully employed issuing parking tickets or “on the spot” cautions, but this was all grist to the mill.

The Press and Media have been flooded with comments and opinions from professionals and laymen alike. Needless to say, the professionals, in the form of criminal barristers, are to a man against the ruling, trotting out the usual platitudes about Magna Carta, human rights and fundamental freedoms, but then, they would, wouldn’t they? After all, whoever heard of turkeys voting for Christmas? There is this quaint belief, based on little reliable evidence, that those accused of crime are more likely to receive a fair trial by jury than by judge alone. I suspect this is code for the belief that juries are more likely to acquit than judges, but this is pure speculation.

I have argued in previous articles that trial by jury is coming to the end of its sell by date. By all accounts, their attention span is getting shorter and shorter, and sadly, with the deplorable lack of state education, semi literate or worse still, completely illiterate. Jurors who are able to give up six months of their time to sit in judgment on the “Heathrow Four” are unlikely to be at the cutting edge of the economy, or in gainful employment.

We need a complete rethink about crime and punishment, and not just as a cost saving exercise. As things stand, less than 10% of all criminal cases are tried by juries. The vast majority are tried by magistrates. I propose a reclassification of “either or” offences, those where the accused can elect trial by jury in the crown court, to include all offences where the maximum sentence does not exceed five years. I would leave it to the discretion of the magistrates to commit the accused to the crown court for trial if they felt it was in the interests of justice to do so, but that would be their decision, having heard argument from both sides.

I would increase the sentencing powers of the magistrates to a maximum of 12 months imprisonment from the present maximum of 6 months. These minor amendments would reduce the prison population dramatically, almost overnight, and leave the crown court to deal with the most serious offences.

I would abolish trial by jury, and replace it with trail by judge and assessors. It works perfectly well elsewhere, and I am far from persuaded that the Magna Carta has any relevance today as the cornerstone of the ‘subject’s’ constitutional rights in the face of an oppressive state.

Time to debunk the myth surrounding trial by jury, and let’s get real.

FALSE MEMORY SYNDROME

Memory and the Law is a report, just published by the British Psychological Society, retreading a well worn path that was made public many years ago by American researchers into the same topic, and which they labelled False Memory Syndrome. In this regard, the British research is hardly breaking new ground.

American researchers, when analysing the findings of professional consultants into clinically depressed and psychiatrically disturbed patients, found an alarming correlation between “auto-suggestion” and “unsubstantiated” allegations of abuse. In short, these patients believed they had been abused at one time or another in the dim and distant past, usually within the family circle, or sometimes within the wider circle of school, to explain their depression or mental illness, and even when it was pointed out to them that the alleged abuse could not have happened, they remained adamant that it had.

Not so long ago, there was a raft of prosecutions relating to the physical and sexual abuse of boys at approved schools in England and Wales going back to the fifties and sixties, and I was involved as defence counsel in some of them. Time and again, submissions that the trial should not proceed on the basis that the accused could not receive a fair trial fell on deaf ears, both at the court of trial and the Court of Appeal. The “reasoning” of these courts had a familiar theme to it, namely that an accused was entitled to an acquittal if the jury were not sure of guilt, that the trial judge was eminently well placed to ensure a fair trial, and that the delay, and the difficulties attendant upon it, was but “one factor” to be considered in the overall picture. All this, of course, is arrant nonsense when looked at in the round, and even a cursory examination gives the lie to this simplistic approach. It does the criminal justice system no credit whatsoever to pretend otherwise.

Imagine if you were living in Poland during the war, minding your own business and trying to survive, and then, fifty years later, somebody stood up, pointed an accusing finger at you, and swore on oath that you were a concentration camp guard working for the Nazis, and in that capacity, had perpetrated acts of unspeakable evil. And what is your defence? It is unlikely in the extreme, so long ago, that you can remember what you were doing on any given day when you were allegedly abusing prisoners, so your chances of calling witnesses by way of alibi are zero. And therein lies the injustice, because it places the onus on the accused to prove his innocence, and if his defence is that it didn’t happen, that’s no defence at all.

I am aware of comments made by Professor Gary Slapper, a professor of law at the Open University [The Times 11th July], supporting the present system. He states, and I quote: “The criminal justice system already has many good protections against unfair convictions!” I doubt if he has ever set foot in a criminal court of law, let alone practised at the coalface. If he had, he wouldn’t be making such an asinine comment, and his students are the poorer for this blinkered approach.

The immediate remedy for this patent injustice against those facing serious allegations brought many years later is to apply a period of limitation, in much the same way as applies to civil actions, where the limitation period is between three and six years. There are circumstances where judicial discretion allows a claim to proceed outside the limitation period, and I have no objections, in rare and extreme cases, for such discretion to be applied to criminal proceedings. But when it comes to deciding if the accused can receive a fair trial, it should be for the prosecution to prove, beyond a reasonable doubt, that he can, and not, as is the present case, for the accused to prove that he can’t.