Guilty until proven innocent – twice

After the introduction of a Criminal Justice (mode of trial) Bill set to remove the right to trial by jury, the Attorney General is suggesting the prosecution be allowed to appeal decisions to acquit defendants. Tom O'Sullivan discusses the arguments for the defence.

The murders of Rachel Nickell and Stephen Lawrence have haunted the 1990s. It is not just the brutal nature of the crimes which mark them out from the hundreds of other murders in the past decade, but the cases have become synonymous with blundering police inquiries, the collapse of high-profile prosecutions and ultimately a failure to convict.

In both cases the trials were cut short. In the Nickell case the judge decided that the police investigation underpinning the prosecution was “misconceived” and in the case of the three men accused of the Lawrence murder evidence key to the prosecution case was deemed “inadmissible”. The failure to successfully prosecute has left the impression that the families have been let down by the criminal justice system.

But as the decade comes to a close, the two cases are again being discussed.

Last Monday, the Attorney General Lord Williams of Mostyn floated the idea that prosecution lawyers should have the right to appeal – in limited circumstances – against a judge's decision to direct a jury to acquit a defendant. Lord Williams described the present situation as an “imbalance in the system”, with defence lawyers able to appeal a guilty verdict while the prosecution has to accept an acquittal.

The Attorney General's office is unable to give any specific examples of cases where this “imbalance” has affected prosecutions.

But a string of defence lawyers see the Nickell and Lawrence cases – and the 1996 acquittal of Kevin Maxwell because of an “abuse of process” at his fraud trial – as the catalyst to review the case to introduce prosecution appeals.

The Law Commission has been asked to investigate the proposal but will not start work until Judge Alan Wilkie joins in January as commissioner responsible for criminal law.

Existing legislation allows prosecution lawyers to ask the Attorney General to refer a judge's ruling on a point of law to the Court of Appeal. But even if successful, the acquittal cannot be overturned on appeal and a defendant cannot be retried.

Rachel Nickell was stabbed to death in broad daylight on Wimbledon Common as she walked with her two-year-old son in July 1992. The police employed an elaborate sting operation to try and win a confession from the man they believed committed the murder.

But when the case against Colin Stagg reached court the sting rebounded on the authorities. The judge dismissed the case on the basis that the police undercover operation – a police woman befriended and exchanged violent sexual fantasies with Stagg – was “misconceived”.

It was the only evidence and Stagg was acquitted on the direction of Justice Ognell.

Nine months after Nickell's murder, Stephen Lawrence was stabbed by a gang of racists at a bus stop in Eltham, south London. A private prosecution, brought by his parents Neville and Doreen Lawrence, against three of the men they allege murdered their son collapsed in 1996 when a judge decided that eyewitness evidence from Dwayne Brooks – who was with Lawrence on the night of the attack – was “inadmissible”.

As a result, the Lawrences dropped the action and the jury never had the opportunity to view videotape evidence, covertly shot by the police, of the accused using racist language and brandishing knives. Justice Curtis instructed the jury to acquit the three.

Kevin Maxwell's second fraud trial was dismissed in September 1996 by Justice Buckley. He ruled that the action would be unfair and not in the public interest. At an earlier trial in January of that year Maxwell had been acquitted on separate charges of misusing Mirror Group pension funds. The collapse of the Serious Fraud Office prosecution led to calls for the ending of trial by jury in complex fraud trials.

“My concern is simply this: that there is an imbalance in the system,” the Attorney General said in his speech. “If a judge stays a prosecution on the grounds of abuse of process, or to direct the jury to acquit a defendant, or to make a ruling concerning the admissibility of evidence which has the effect of depriving the prosecution of a crucial plank in its case, ought not the prosecution be able to test that decision at appeal?

“If it cannot, are we not allowing in fact a system in which judges are unaccountable to the appeal courts as to a crucial aspect of their responsibilities, at the very time that we are providing them with greater powers through the implementation of the Human Rights Act?

“I strongly suspect that the mere existence of a prosecution right of appeal, even if only sparingly used, could lead to a significant and beneficial change in the culture of practice in the criminal courts.”

But Lord Williams' optimism is not shared by many criminal defence lawyers.

They complain that, while in isolation prosecution appeals might not appear draconian, in the context of other changes in the criminal legal system it represents another shift in favour of the prosecutors. They cite a series of law reforms introduced in the past 10 years which have altered the balance.

The prosecution can now appeal against sentencing and bail conditions. The 1996 Criminal Procedure and Investigation Act limits the disclosure of evidence to the defence. Victims in rape trials can no longer be cross-examined on previous sexual relations with a defendant. And two weeks ago the Government introduced the Criminal Justice (mode of trial) Bill which is set to remove the automatic right to a jury trial for every defendant.

“There is something distasteful and not quite right when someone is acquitted and then they are told that they haven't actually been acquitted,” says Franklin Sinclair, chairman of the Criminal Law Solicitors Association.

“It is an unnecessary and unhappy extension of the shift in balance toward the prosecution. Prosecution appeals have never been raised as an issue (among our members) and I don't see any need for acquittals to be changed.

“I would be the first to admit that originally the balance was too much in favour of the defence, but in the past six years it has shifted in the favour of the prosecution and has now gone too far.”

Sinclair's view is echoed by other defence lawyers.

“As an idea I see the point but because so many other things are being suggested people are suspicious,” says criminal defence lawyer Neil Addison.

“It would be good to see some changes that are defence-oriented. The idea would be better received if there was not so much concern about [reductions in] defendants' rights.

“The presumption is that defence lawyers are just getting criminals off, but trials are there to test guilt. The Government, in all its policies, is looking at the courts as a place to punish rather than the place to test a case.

“Prosecution appeals fit in with an attitude, which developed after the Maxwell trial, that if someone is acquitted there is something wrong. Judges do not knock cases on the head – if anything they are more inclined to keep it going unless it is a truly appalling case,” says Addison.

Lord Williams is aware of these concerns. He says: “We must not over-correct the imbalance so that the defence are left at a disadvantage. If new rights are given to the prosecution, we must take care to ensure that they are not greater than those available to the defence.”

He outlines a need to monitor the system of appeals and suggests filtering each appeal through either the Director of Public Prosecutions (DPP) or another law officer. But many of the original cases will already have been through the office of the DPP and so there would have to be an independent monitor.

Brian Barker, chairman of the Criminal Bar Association, says: “Moves like this seem to suggest that there is not a lot of confidence in the circuit judges. If the Attorney General's office cannot come up with good cases then this does not seem like a burning issue that demands reform.”

Barker is right. There is little or no evidence that prosecutors have been beating down the doors of Lord Williams, the Lord Chancellor or even Home Secretary Jack Straw, demanding this change. Rather, the suggestion has grown out of an earlier Law Commission report into the issue of “double jeopardy” – the ruling which prevents anybody from being tried for the same offence twice.

The investigation into double jeopardy was prompted by the Macpherson report into the Lawrence murder. In October the Law Commission published a consultation document. It called for the double jeopardy ruling to be retained, but proposed a limited exception to be added allowing some cases to be retried where new evidence emerges after an acquittal.

The concept of a “tainted acquittal” – where there is evidence of either jury or witness tampering – already exists and could theoretically lead to a retrial. But the rule has not been employed since it was introduced in 1996.

It has been suggested that Lord Williams' comments on prosecution appeals is an early reaction to the Law Commission's advice to retain double jeopardy.

And the timing of his speech – just 10 days after the mode of trial legislation was introduced in the Queen's Speech – makes it seem like an afterthought.

The Attorney General's office denies this and hints that prosecution appeals, if the review of the law supports their introduction, could find their way into the legislation as a late amendment.

A spokesman for Lord Williams says: “The Lord Chancellor, Attorney General and Home Secretary are working to reform the criminal justice system. It is an ongoing process and this is part of the process.

“There are no specific cases but it is an issue in the criminal justice system.”

Ironically, it is also an issue in the European Convention on Human Rights. Article 4 of Protocol 7 states: “No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”

The crucial word here is “finally”. Without prosecution appeals it is unlikely that attempts to get around the double jeopardy ruling could succeed. That is, perhaps, where the idea sprang from rather than it being an “issue in the criminal justice system”.