THE LAW
Second opinion
R. A. CLINE
If Mr Attic Hinds had launched his celebrated libel action today he would not have met with the same success. It will be recalled that although he had been found guilty in the criminal court of participating in the Maples robbery, he was able to establish his inno- cence before a civil jury by bringing a libel action. He brought it against the police officer who had written in a newspaper article not merely that Mr Hinds had been convicted of the crime but also that he had committed the crime. So the issue whether he was innocent or guilty was re-examined although an earlier jury, in a different category of court, had pronounced against him.
This startled many people, particularly the press. No one could cavil at a man seeking to establish his innocence, and no system of investigation is error-proof. But appeal courts exist to correct some of the errors that occur. Can a man have another run for his money in the civil courts, initiating a second train of investigation? Mr Hinds showed that he could if he sued for libel. And this made the journalists very reasonably apprehensive. They could not safely write about people with criminal records since the jury's pro- nouncement might not be the last word.
A call for a change in the law was made in this column some six years ago, and we were subsequently gratified to hear that a Bill would be introduced to change all that. Our gratification was to be shortlived; some- one's courage in some department failed. The Civil Evidence Act 1968 has changed only a little of 'all that' and has done so in a wholly illogical way. What it has done is to provide that in libel actions a conviction of a crime is conclusive evidence that the crime was committed, but that in any other form of civil action the convicted man will be 'taken to have committed that offence unless the contrary is proved'. So someone aspiring to follow in the tracks of Mr Hinds must now fail if he sues for damages for libel. He cannot ask a libel jury to pronounce on his innocence if a criminal jury has previously pronounced against him. Two cheers, no doubt, from Fleet Street who cherish no great affection for our law of libel.
But what about other forms of action? What are the consequences of the quite different rule in non-libel cases which enables the convicted man to have another go if he can prove his innocence? In principle there would seem to be little or no point in making this strange distinction between libel actions and any other form of proceeding. Let us suppose, for example, that ten out of your twelve fellow men have decided at the London Sessions that you drove your car without due care. A few months later you find yourself in the Law Courts in the Strand, this time in a civil action. You are being sued by a pedestrian for damages for the injuries you inflicted on him when driving without due care. And this time a judge is trying the case, as is the practice, without a jury. Under the new Act you can show, if you have the evidence, that the jury was wrong. All the facts are reinvestigated in what is in effect a civil retrial of the original charge.
Now this is wholly anomalous. And the worst of it is that it imposes on the judge the irksome task of deciding questions of fact which have already been decided upon by,,, a jury. It is asking for the impossible, as Mr Justice Paull complained when he found him- self in precisely this invidious role in a recent case. He had before him a man who had been convicted by a jury of robbery of a bank. This man was contending that the con- viction was wrong and protested his inno- cence of the crime. He had been found with £1,000 of banknotes in his possession and these had been taken from him. An insurance 'company had compensated the bank. So now he was claiming the return of his notes on Me basis that he was innocent and the insurance company claimed them contending that he was guilty.
Under the Act he was to be taken to have committed the crime unless he proved the contrary. He tried to do so—and with some limited success, for the judge admitted at the end of the case that he had some doubt whether the man had robbed the bank. He added that if there had been no previous criminal trial he would have held the man innocent. 'But,' he asked, 'how can I say that the jury in the earlier proceedings, many years before, were wrong? Or that the Court of Appeal who confirmed the verdict were wrong?' And the event had now receded into the dim recollections of the past. The judge found himself in a thoroughly un- satisfactory judicial posture : if the previous trials had not taken place, he would have acquitted the man yet he had to act as if Jae were guilty, because as a judge sitting alone he felt he could not substitute himself for the jury.
No such convolutions would have been required if only Parliament had adopted a simple and direct approach: that if you are convicted of a crime, you are stuck with it no matter in what kind of court or action you are subsequently involved, whether libel or any other form of suit. Convictions should be conclusive that the crime has been com- mitted, the last word on the subject. We all know that juries can go badly wrong; but like democracy it is the best system we've got, however imperfect. If a man has been convicted by his fellows, has exhausted all the appeals procedures and perhaps petitioned the Home Secretary, then it is better that that should be the end of the road and his hopes of reversing the verdict should not be kept falsely alive. The present Act satisfies no one —neither the convicted in whom such hopes are raised, nor the judges who have to apply its provisions.
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