REVIEW OF BOOKS
Lord Hailsham on trials without errors
This book by two, I would think, relatively young professionals, the one a practising journalist, and the other a solicitor specialising in Criminal Law, sets out to review, in just under two hundred'pages, the entire system of English criminal jurisprudence from the institutions of Justice of the Peace and the Police to the jurisdiction of the Court of Appeal (Criminal Division) with a view to arguing the ,case for comprehensive reform. The aim is a praiseworthy one, and the joint authors have made a conscientious attempt to cover their subject. It may therefore seem a trifle ungracious and perhaps even uncharitable if what follows seems very largely a catalogue of minor corrections and omissions, each relativelysmall, and some perhaps trivial, but cumulatively amounting to a serious criticism of the adequacy of the work. The fact, however, is that in order to cover a subject of this complexity in a short book very considerable qualities of experience and scholarship are required.
Apart from their own previous book on the Stafford Case which, since its publication, has been examined afresh both by the Court of Appeal and the House of Lords, each of which came to conclusions very different from the authors', the two authors very largely rely on published sources rather limited in scope, and somewhat uncritically adopted. Moreover, although, as I say, the work has been conscientiously attempted, each seems to suffer from an innate disposition to find fault with things as they are rather than to assess the virtues of the system we have inherited and to ask seriously the question how far its admitted weaknesses are not precisely the defauts de ses quake's, which could not be cured without losing the very virtues which we are most concerned to preserve.
The English system of criminal jurisprudence has two main rivals, the Continental, based primarily on the Code Napoleon, which was itself a reformed version of earlier models, all based on the inquisitorial rather than the accusatorial system, and the American, which 6ears, if it is not thought facetious to adopt the analogy, about the same relation to English criminal law as American football to Rugby Union. In contrast to both systems, the English is almost incredibly speedy in its operation, which is not to say that it is nearly speedy enough, particularly in London, and, at least so far as regards the structure and hierarchy of Court, remarkably uncomplex and unbureaucratic. Compared with the American system, it is, of course, also far more uniform in quality, although the joint authors are quite rightly concerned with variations in magisterial sentencing policy in different areas. It is also, almost certainly, the least corrupt system in the world, the least politically motivated and at least as much concerned, if not more so, to preserve the presumption of innocence, the rights of the accused, and the independence of judicial administration from political bias and interference.
The last feature is largely preserved by the institutions of Justice of the Peace, trial by jury, and the Office of the Lord Chancellor. All three have their disadvantages. But it seems to me that all three are infinitely worth preserving. Nevertheless, is it idle to complain at the same time of the relative simplicity of the training accorded to justices of the peace, and the relative absence of young and working class candidates for the Bench, since these are precisely the classes of candidates who can least easily perform the minimum duties already required of them. Incidentally, the authors seem greatly to underestimate the value of actual experience of sitting on the bench with older colleagues as a means of acquiring judicial skills, and to be wholly unaware of the severity with which Successive Lord Chancellors treat incompetence and misbehaviour. A similar general point can be made about trial by jury. It either is, or is not, a safeguard of constitutional liberty. But if it is, you have to take it with whatever warts its nature possesses. It is not easily practicable to ask for substantially increased powers of review in the Court of Appeal on matters of fact. without calling in question the whole value of juries as such unless, of course, you are prepared to go in for orders for a new trial on an extensive scale. To suggest, as the authors do, that juries should give reasoned judgments under the supervision of a Court official would, in my opinion, in the end lead to discrediting the whole institution. A jury is not the kind of animal that can give a reasoned judgment, and a significant part of its value consists in the fact that it is not assisted inside the jury room by an officer of the Court.
There are too many errors of omission and inaccuracy, many of which are avoidable. Dr Hood's work comparing the comparative severity of magisterial sentences in different parts of the country, valuable as it is, does not take into account the frequency or otherwise of committals for sentence in the same courts and the omission to do this has affected some of his main conclusions. The procedure of selection and appointment of JPs is not "still very much of a mystery." It has been the subject of very many explanatory speeches by successive Lord Chancellors, a pamphlet issued by the Lord Chancellor's office which is constantly kept up to date, and at least two Royal Commissions. When Magistrates' courts are referred to (erroneously) as "police courts" it is for historical reasons and not, as suggested, because the police play such a prominent part in them. The average time in custody cases for remand in custody before trial on indictment is now about six weeks in the provinces, and, alas, about twelve weeks (if my memory serves me) in London. It was more than halved in both areas during my period of office as Lord Chancellor. To suggest therefore that twelve months can now be regarded as a common period, as is more than once done, is quite misleading unless the averages are given. Such extreme cases must now be very rare in the provinces, and unusual in London and, where they exist, must usually be due to the absence of witnesses or delay by co-defendants. It is not true that ."in the early summer of 1972 . . . the Government hurriedly responded to an outcry on the length of time on remand in Brixton by holding Courts in any available building." I started treating the delay in bringing on cases for trial as a top priority from the time I became Chancellor in June 1970 and, although enormous difficulties in acquiring and equipping suitable buidings was experienced, the Department of the Environment was struggling, at my insistence, with the problem long before 1972 and before there was any outcry. (If this had not happened there would have been a complete breakdown.) The question of bail or not bail is not "always whether the defendant will appear at his trial." The possibilities of interference with witnesses, and the commission, especially in cases of violence, of fresh offences are also relevant. Legal aid is in practice available for defendants seeking bail for the Crown Court, as well as before the Judge in Chambers, and, of course, before magistrates as well, though in the latter case only when legal aid has been otherwise granted. The prosecution is not limited to the challenge without cause of only seven jurors, and does not exercise its rather different but indefinite right to "stand by for the Crown" against jurors "unlikely to be sympathetic."
It is not true that Lord Hailsham expressed "fierce opposition to the appointment of solicitors as part time judges to the Crown Court Bench." ,I was myself part author of the present arrangements and operated them in good faith. Apart from a measure of delay due to the time taken in building up a stock of experienced judges, any shortage of solicitor recorders is due to the absence of enough suitable candidates. (This is not surprising in view of economic factors which I outlined in public at the time.) It is not true that the Court of Appeal "will only interfere [with a conviction] if there has been a really major and fundamental misdirection in law, or bias so severe that it precludes the possibility of a fair trial." In fact almost any misdirection which could have misled the jury is fatal to a conviction. It is not true that "there is no retiring age in the House of Lords." Since about 1966 for new appointments the retiring age has been seventy-five. It is not true that in appeals against conviction "because of expense and delay there is often no transcript of what the judge said" (i.e. at the trial) available to the single judge of the Court of Appeal who processes applications for leave to appeal against conviction. In my experience, the "short transcript" Available to the judge alwayS includes the summing up in cases of appeal against conviction and any judgment delivered on the reception or exclusion of evidence. I am assured by the Court that it virtually never happens that a single judge does not receive the "short transcripts" and then never because of expense or delay.
There are in fact many defects in our criminal system of varying degrees of importance. The grant of bail is currently under consideration by the Home Office, a fact which I do not think is mentioned by the authors. The question of the so-called right of silence is to my mind incredibly difficult and not particularly helped by the almost entirely negative criticism from the profession which greeted the CLRC Report. The jurisdictional boundaries between the magistrates and Crown Court are badly in need of tidying up and are also under examination. In my opinion (though not that of all experts) we badly need both a penal code, revised methods of penal treatment and a fresh look at the laws of evidence and procedure. In other words, the case for fairly comprehensive and continuous reforms is, I believe, made out. But these (and many other reforms) are not best advocated without adequate appreciation of the difficulties involved, and. without first assessing the value of a system which, on the Whole, gives fairly general satisfaction. Basically speaking, this book is too ambitious to cover the whole field it explores in adequate depth within the limits of space taken, and too superficial, with too many inaccuracies, to carry complete conviction in individual matters, or an accurate impression of the whole.
Lord -Hailsham of Saint Marylebone was Lord Chancellor from 1970 to,1974
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