In the Media

Mr Clarke is doing the law an injustice

PUBLISHED April 20, 2006

There is an old saying that it is better for 10 guilty men to walk free than for one innocent man to go to jail. Do you really believe that? More to the point, does our Home Secretary or our Prime Minister?

There is in the Government a view that the criminal justice system has got out of balance; that it favours the offender more than the victim; and that a bunch of clever barristers just play games with arcane rules to get people off, when it is as clear as day that they should be banged up (unless, of course, they are going to be put on community sentences or released early).

Both Charles Clarke and Tony Blair are concerned that the system works too much for its practitioners and not enough for the public at large. Mr Clarke will today seek to address one of its most egregious failures, the shambolic state of part of the probation service, which has been exposed by a spate of recent convictions for murder of criminals who should have been properly supervised in the community, but weren't.

But Mr Clarke thinks the malaise goes deeper than what happens to convicted felons on their release. Yesterday, he unveiled plans to cut the compensation that is paid to people who are freed on appeal and to make it more difficult for the "obviously guilty" to walk free on a technicality. He also believes the test of what constitutes an unsafe conviction needs to be "urgently" re-examined: he has even proposed introducing into English law the "not proven" verdict available to Scottish juries when they are unable to decide on guilt beyond reasonable doubt, but cannot bring themselves to declare the alleged offender innocent.

The immediate question that arises with Mr Clarke's proposals is, why now? It cannot, of course, have anything to do with the proximity of the local elections and a desire to promote what on the surface looks like a popular, and populist, attack on criminals getting away not only with murder, but our money.

The timing is particularly odd because just such a review of the appeal test was recommended nearly five years ago by Lord Justice Auld in his seminal report on the criminal justice system and we know that the Home Office considered it because a hapless civil servant left a pile of briefing notes in a Whitehall pub which concluded that there was "unlikely to be public controversy" if the test was amended. So why was nothing done about it then? Mr Clarke has now embarked on "an urgent review" of the very same issue. This presumably passes for swift and purposeful action in Whitehall.

Mr Clarke considers that such a change would be a "radical" step, though in fact the system used to work the way he would like it to before the law was unaccountably amended in 1995. Until then, the Court of Appeal could uphold a conviction even when the trial procedures had been flawed, provided there was no "substantial miscarriage of justice". For some reason this proviso - which seemed adequately to reflect the need to balance an accused person's right to a fair trial, conducted according to law, with the desire to avoid overturning convictions on the basis of inconsequential errors at trial - was abandoned. A simple remedy would be to reinstate it.

More problematic is Mr Clarke's proposed cut in the compensation available to people who have been wrongly convicted, either because the trial was bungled or because they were innocent. There is already a statutory scheme for recompensing people in such circumstances. What Mr Clarke wants to abolish is the discretionary scheme, which he regards as "increasingly anomalous and unjustified" and which pays out ?2 million annually to what the Home Secretary would regard as thoroughly undeserving causes.

This is perverse. Under the statutory scheme, a man convicted of a series of sexual offences against children was awarded ?10,000 because one of the offences was quashed, even when the other cases were upheld. This is clearly ridiculous. Yet Mr Clarke intends to keep this scheme (though capping it at ?500,000), while removing the discretion to allow high levels of compensation to be paid to people who are locked away for years yet who are innocent - not on a technicality, but because they did not commit the crime.

Surely the Government is doing this the wrong way round. Isn't the whole point of a discretionary scheme to enable payments to be withheld from people who do not, in the opinion of an arbiter, deserve them, while keeping in reserve the prospect of far higher compensation for those to whom a genuine and mighty injustice has been done?

Mr Clarke conceded that the discretionary system - of which his office is custodian - had become too loose. The solution to this is to tighten it, not abolish it. Also, the comparisons the Home Office made between the levels of compensation paid to victims of crime and to the victims of miscarriages of justice were thoroughly specious.

It is irrelevant to say (though it sounds good to do so) that a rape victim would receive ?11,000 from the Criminal Injuries Compensation Authority, while someone who served four years in jail before his rape conviction was quashed received ?400,000. Not only is such a comparison pure sophistry, it is also inimical to the presumption of innocence that is supposed to underpin our judicial system, but looks increasingly threadbare amid attacks on jury trials and the abolition of double jeopardy.

There is a much-quoted passage in the Auld report, referred to by Mr Clarke, that "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." So it is; and it is galling to everyone when technical loopholes are exploited to let the guilty walk free, though they do every day of the week if a case cannot be proved against them beyond reasonable doubt.

That is the essence of our system. Mr Clarke has made it abundantly clear that he does not like it.

In which case, he should seek to close the loopholes, rather than to establish new injustices in their place.