In the Media

From where I stand

PUBLISHED May 18, 2013

It has long been said that our system of criminal justice is admired and envied throughout the civilised world. This may well have been the case in the past; but I regret to say that, after 47 years in the practice of criminal law, my perception is that, in fact, we are heading down a route which will see the destruction of the adversarial system, the reversal of the burden of proof and the abandonment of the presumption of innocence.

Another world

When I first started practising criminal law in 1966, my first case was at Tower Bridge magistrates? court. It had commenced with the arrest of my client on 31 March 1966 and him being charged with an offence involving a fraud at a betting office. He appeared in court the following morning in custody and - unsurprisingly, as it was my maiden appearance in court - he failed to obtain bail.

In the nature of the way that cases were then conducted, the committal proceedings started the following week and, within a short space of time, he was committed, again in custody, to the Inner London Quarter Sessions for trial. He was remanded in Brixton prison and his trial concluded with him being sentenced to three years? imprisonment on 14 May 1966. There was therefore a period of six weeks between arrest and sentence.

The disadvantages that the defendant experienced then were that there was no representation by a solicitor in the police station and no advance information. And until the evidence was called at the committal proceedings, one had no idea what the evidence was against one?s client. There was, of course, no unused material disclosed.

All change

The situation changed dramatically with the introduction of the Police and Criminal Evidence Act in 1984, which allowed defendants to have representation in the police station and for the disclosure of advance information and unused material.

The downside was that, at about this time, steps were taken to ensure that defendants had to disclose the nature of their defence. In fairly swift order, defendants were required to provide evidence of an alibi and then to provide defence case statements so that the prosecution would not be ambushed. Parliament, in its wisdom, allowed the introduction of bad character evidence, hearsay evidence, the abolition of the double jeopardy rule and, of course, the erosion of the right to silence.

These measures were subsequently followed by the introduction of the Criminal Procedure Rules. Although they purport to strike an even balance between the responsibilities of the prosecution and the defence, it seems to me that, in fact, they are just a tool to punish defence lawyers - particularly in their pocket - for any failure to comply. In my experience, failures of the prosecution to comply with the rules rarely result in any worthwhile order against them: one does not see a refusal by the court to allow any piece of evidence to be produced because of a failure under the rules. Wasted costs orders are, in fact, a payment by one part of the state to another. To my mind, it would be far better if prosecutors were given responsibility for a case and personal and financial liability under wasted costs orders if they did not do their job properly, thereby enabling us all to play from a level playing field.

Significant shift

It seems to me that the consequence of all these changes is that we are slowly and surely moving towards a situation where it will be for the defence to prove the innocence of the client rather than the prosecution to prove their case. It also seems that the presumption of innocence has long gone in that district judges in the magistrates? courts in London and, dare I say it, some Crown Court judges, frequently remark to defence lawyers, "Your client knows whether he did it?, thereby avoiding the necessity for any worthwhile advance information to be forthcoming or to allow adjournments to take full and detailed instructions. The regime, as it develops, will increasingly require the defence to disclose - and probably at the first hearing - even more than they have to at the present time.

By contrast, in the police station, defence lawyers are increasingly finding a refusal by the police officers to make any meaningful disclosure before any interview takes place. In this, the police are supported by the higher courts, again presumably, on the presumption that the client will well know why he (or she) is in the police station and will therefore be able to deal with the allegations that are put to him.

There is also a trend now for no questions to be put: the client is asked to give an account of what happened, rather than to respond to any meaningful enquiry by the police officers. In my view, therefore, the client is frequently in danger, if he answers any questions, of being ambushed by police officers who have a wealth of evidence against him which they are not prepared to disclose until he has made any comment.

The result of all this is, of course, that the courts are now frequently taking the view that, if the police have charged somebody with an offence, they clearly haven?t made a mistake, that there is sufficient evidence to back it up and that the client is almost certainly guilty, whether or not he puts forward any explanation.

Solicitors? role

Consequently, defence solicitors are now often regarded, not as professional persons who are, in fact, officers of the court with a responsibility to the court, but merely as machines through which defendants are passed on their way to inevitable conviction and sentence.

Forty-five years ago, if the prosecution failed to prove a vital part of its case, then the case would be dismissed. It is now, through court decisions, a requirement for a defence lawyer to point out any deficiencies in the prosecution?s case to enable the prosecution to rectify the matter before the court makes any decision on guilt or innocence.

The vilification of defence lawyers by successive governments, aided by mouthpieces in the popular press by use of inaccurate, exaggerated and unbalanced use of statistics on legal aid fees, has merely reinforced the disrespect in which we are held.

For all those reasons, I am happy that I am coming towards the end of my professional career. The practice of criminal law is certainly not what it was 45 years ago and not necessarily any better for the unjustly accused. Indeed, I fear that it is going to get much worse.