Political Commentary
Law and disorder
Patrick Cosgrave
In the somewhat subdued debate that has been proceeding, sedately, about the reform of criminal law in Britain too little attention has been paid to the fundamental social and constitutional consequences of some of the proposals on view; and of the reactions to them. The Criminal Law Revision Committee — a body appointed in 1959 by Lord Butler "to examine such aspects of the criminal law of England and Wales as the Home Secretary may from time to time refer " to it — has made recommendations for changes in the practice of English and Welsh criminal law; and the Government has made it clear that it favours such changes. The General Council of the Bar of England and Wales has come out solidly against these changes. Only this week both the House of Lords and the Conservative Home Affairs backbench committee have debated the matter anxiously.
Leaving aside the technical, the acceptable and the minor, there were two recommendations of the Criminal Law Revision Committee published in June 1972. The Committee proposed that the traditional form of police caution, known to every lover of crime fiction, be abolished: instead of a policeman saying, "You need not say anything at any time unless you wish to do so. Whatever you • do say will be taken down in writing and may be used in evidence," he would in future say, inter 'aria, "If there is any fact on which you intend to rely in your defence in court, you are advised to mention it now. If you hold it back till you go to court, your evidence may be less likely to be believed and this may have a bad effect on your case in general. If you Wish to mention any fact now and have it Written down, this will be done." With this new caution goes the right of a judge, and the right of prosecuting counsel — which does not exist now — to comment Unfavourably on the decision of an accused person to remain silent in the face of a police interrogation: the Bar Council Particularly object to the words "hold it back," as being emotive and theatrical, rather than sober and judicious. Second, the Committee propose that, in certain circumstances, evidence of previous con victions, and evidence as to the disposition of the accused to commit certain offences, be admissible as evidence in given cases: the Bar Council wholeheartedly oppose such ideas.
Thus the political essence of the legal debate. Both proposals are designed, of course, to maximise the possibility of convicting the guilty criminal who may Use the protection made available to him by the law to defeat the ends of justice — most notably by remaining silent during a Period of investigation and then ' springing ' an unexpected defence on the court. As early as July 1966 four distinguished Conservative lawyers — Sir John Hobson, Sir John Foster, Mr Ian Percival and Sir David Renton — made a similar proposal in regard to the police caution, in a pamphlet entitled The Silence of the Accused, and that pamphlet is the intellectual progenitor of the Criminal Law Revision Committee's report. The authors of both documents share a particular concern at the level of increase in what is usually called ' professional ' crime, carried out by highly organised thugs — like the Richardsons or the Krays — capable of hiring the best legal brains to organise their defence in the event of charges being brought. Between 1966 and 1970, moreover, the tide of concern at the number of such criminals who appeared to be escaping their just deserts rose, among both lawyers and politicians; and proposals for removing the right of silence and allowing the admission of evidence as to previous convictions were highly popular. It is therefore, hardly surprising that the Government welcomed the proposals of the Criminal Law Revision Committee, and indicated its intention to legislate in accordance with them.
Indeed, in certain government circles the taste for reform has been strong. The Lord Chancellor, Lord Hailsham — a QC more adept, some might think, in the courtesies than in the practice of his profession — has long held that such changes as are proposed do not go far enough. He has for some time advocated the adoption in this country of the French system by which a juge d'instruction examines anyone whom the police accuse with the utmost rigour, within a system where the person charged has no rights of silence or even discretion. And he was to be found only last week suggesting that, if the crime rate and the rate of acquit1 al continue as at present, it may even be necessary to curtail the power of the English jury. In spite of the holding of such strong opinions in such high places, however, ministers have been disturbed, if not appalled, to discover in 1972 and 1973 that the opinion which sustained the desire for reform, both among lawyers and inside the Party, has been weakened if not completely reversed.
The principal reason for the changed climate of opinion is a growing but as yet subterranean distrust of the police, particularly in the metropolitan area. Sir John Hobson and his colleagues hoped that their proposals "would be of some help to the police and that they would do something to remove from them the temptation to exaggerate or invent evidence, especially, of verbal admissions." Such an attitude, which is broadly similar to that of the Committee, bespeaks an essential confidence in the police force, even where it allows a possibility that unorthodox methods might be employed to gain convictions. The Bar Council, on the other hand, lists eleven reasons against reform of the caution, seven of which, in one form or another, refer to the undesirability of giving more powers of interrogation than they at present possess to the police. The causes of such growing mistrust of the police among the legal profession badly needs investigation.
Moreover, there is some dispute about what actually happens in the Courts. The Bar Council, one should remember, is merely presenting the views of the Criminal Bar Association which "comprises those members of the Bar who practise mainly in the Criminal Courts, the majority of whom have considerable experience of appearing not only for the defence but also for the prosecution," while the Criminal Law Revision Committee contains among its fourteen members four judges and three dons. This lends weight to the conviction of the Council against "the Committee's thesis that professional criminals are being acquitted in large numbers." Certainly, some objective view of whether or not this is the case ought to be considered necessary before reform is proceeded with.
This is all the more so when one considers the disposition among those who favour change to confuse a tendency to criminality among the population and on growth in the professional practice of crime. Sir John Hobson and his colleagues were certainly disturbed by the latter phenomenon, but they also supported the case for change with the observation that, "The new generation of citizens . . . could never be described as fundamentally lawabiding' ". It is true that the highest rate of criminal growth is among young people; and that there are an increasing number of recidivists among the young as well. But it must certainly be judged undesirable to allow the police and the prosecution greater powers against the young accused — particularly when he may be merely semi-literate — at a time when the legal profession is unable to give its whole trust to the police. in
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