A law unto itself

Lord Falconer of Thoroton QC, one time top-earning commercial silk but now merely a humble Government minister, was back in the courts last week. Tony Blair's favourite fixer, who last month launched the biggest criminal justice reforms for a generation, was on a fact-finding mission in Manchester Crown Court to discover just what was going wrong.
Apparently, it was not the most productive of days. Of the eight cases listed for trial, five were aborted because the witnesses failed to show or the prosecution or defence messed up, and a further two cases were second attempts having previously failed.
“This is a system in relation to which seven out of eight cases had not even started on the first day of calling the witnesses,” the barrister relates incredulously. “You have the people engaged in it saying, 'It's not my fault' – that's the current mood. The problems in the criminal justice system are not helped by identifying who is to blame, but you need to identify where the problem points are.”
It was this conciliatory message that Falconer took to the legal profession at a recent Law Society debate on 'The Role of the Defence Lawyer' following the publication of the Government's 'Justice For All' paper. “Nothing undermines confidence in the criminal justice system more than the intense blame culture,” the minister told lawyers.
It did not take a heightened sense of irony for lawyers to reflect that such sentiments were a bit rich coming from a Government minister. It was only a few weeks ago that Falconer joined a long Home Office tradition and put the boot in to the legal profession. He had then accused it of deliberately stretching out cases to maximise fees and let cases “slip through the cracks”. He also let rip about “the utterly outrageous” cross-examination of witnesses in trials.
As far as lawyers can see, 'The Role of the Defence Lawyer' appears to be to take the rap for the manifold failings of the criminal justice system. Ian Kelcey, president of Bristol Law Society, summed up the mood of frustration at Chancery Lane last month. “If we're moving away from a culture of blame, why does your department do so much to foster one?” he wanted to know. He went on to call recent comments emanating from the Home Office “utterly insulting”.
Nevertheless, the former member of Fountain Court chambers appears to be one of the most lawyer-friendly ministers to hold a legal brief so far in the Government, and as those who have dealt with him over the past few months will attest, Falconer is willing to listen.
Does he miss the old job or has he had enough of lawyers for the time being? “I absolutely love being a lawyer,” he replies immediately. “It's only since I ceased to be Solicitor-General that I've left a legal job, and what I've done since then has been quite diverting.” Indeed. First it was the Millennium Dome, now it is a creaking criminal justice system. When it comes to short straws, the Prime Minister's former flat-mate has had his fair share.
Today Falconer clearly wants to make up with the profession. “The critical thing is that there's a growing consensus for the need for a cultural change,” he says at his ministerial office at the Home Office. “The police, the CPS [Crown Prosecution Service], and the defence would all agree that we don't want seven out of eight cases not starting on the first day of calling. It's incredibly important that there's a common agenda in relation to that.”
But first, what about last month's attacks on defence lawyers and their spoiling tactics? The former minister for the Dome was talking after the publication of an Audit Commission report entitled 'Route to Justice', which estimated that £80m a year is wasted through adjournments and the cancellation of trials. It seemed a wildly disproportionate response given that the Government watchdog made only a single, fairly equivocal comment in a heavyweight report. The commission merely noted that fee arrangements “may be seen to offer an incentive for legal representatives to prolong cases”.
Falconer is keen to make the point that no slur on the profession was intended. “A defence lawyer seeing the way the system works will say 'plead not guilty', and there's a chance that the case will 'slip through the cracks' for all sorts of reasons – and that's quite legitimate,” he says. “But we're trying to change the system to stop that happening.” And in case lawyers do not buck their ideas up, the white paper includes proposals for a regime of fines.
While all sides of the debate will happily sign up to plans to rid the system of the inefficiencies that clearly bedevil it, many commentators find the white paper's anti-defendant line hard to take. The 181-page white paper delivers on the New Labour pledge to “rebalance” the system by scrapping double jeopardy, undermining jury trials (it plans to double magistrates' sentencing powers and remove juries from serious fraud and complex cases) and allow details of previous convictions to be heard.
The language of the political debate sticks in the craw of many lawyers and civil libertarians, in particular the implication that the rights of victims are enhanced when the rights of defendants are diminished. As John Wadham, the solicitor-director of Liberty, puts it: “Eroding the rights of suspects won't give victims the rights that they have waited too long to receive.” He argues that the paper “seems to blame fair trial protections for crime rates”, when in reality only a tiny fraction – about 43,000 – are acquitted, and that is “mostly because they're actually innocent”.
The Law Society and the Bar Council have gone out of their way to accentuate the positives before they launched into their reservations. “There's a lot that's good in the white paper,” began Bar chairman David Bean QC in his response to it. Above all, lawyers were glad to see the Government quietly burying the Criminal Justice (Mode of Trial) Bill, which would have seen up to 18,000 defendants a year lose the right to choose jury trials.
It might come as a surprise but Lord Falconer declares himself a fan of jury trials and happily invokes its democratic credentials. “In a sense it's a foundation of our system and a critical aspect of that is people's right to make an election about a jury trial,” he comments. Nevertheless, some feel that the jury reforms of the white paper are disingenuous. Courtenay Griffiths QC recently accused the Government of sneaking the Mode of Trial Bill back in “by stealth”. Effectively, the Government plans to double the sentencing powers of magistrates and remove juries from serious fraud and other complex cases.
“I'm convinced that the Government's commitment to reducing the number of cases tried by jury is driven by Treasury considerations,” Griffiths argued in The Observer last month. “Trial by jury is expensive and the spectre of the Chancellor of the Exchequer looms over all New Labour's actions.”
The silk is best known for his spectacular demolition of the prosecution's chief witness in the Damilola Taylor trial. It was reported that this case angered Falconer and prompted his comments about “utterly outrageous” cross-examinations.
On the jury reforms, Falconer says: “This isn't about depriving people of their right to elect for trial, but trying to ensure that the system doesn't become unnecessarily complicated or slow.” According to the minister, the problem that the Government wants to tackle is those defendants who opt for jury trial and then later plead guilty. As for scrapping juries in serious fraud and other complex cases, he reckons that in practice this will amount to only a very few cases a year. “Does it seem sensible and fair to have 12 people plucked out of their lives to spend 12 months on a complex fraud trial?” he asks. But he also believes that there is public confidence in judges, pointing to Dame Janet Smith's chairmanship of the inquiry into the Harold Shipman murders.
Again, the abolition of double jeopardy might be “very significant”, but is only going to affect a very small number of cases, Falconer believes. “What most undermines the criminal justice system is a sense that the defendant has committed a serious crime and the court isn't even able to evaluate that evidence,” he says. The kind of case would be where DNA evidence came up, or there was a confession, or the body of the deceased has been found.
Critics, including the Law Society and Liberty, are troubled with the idea that scrapping the 800-year-old rule will allow the police and prosecution to have a second bash. According to Sir William Macpherson, the former High Court judge who conducted the official inquiry into the death of black teenager Stephen Lawrence, a change in the law would not even lead to the youths acquitted of Lawrence's murder standing trial on the evidence as it stands.
Falconer denies the charge of gesture politics. “We're responding to individual cases in so far as they can give rise to an intense sense of injustice, but we think we've struck the right balance,” he comments. There are “adequate safeguards” in that the Director of Public Prosecutions would have to make an application to the Court of Appeal, which would authorise a second trial. “This isn't the stuff of infringing people's civil liberties,” he adds.
But 'Justice For All' is not just about a small number of high-profile issues such as double jeopardy. As Falconer repeatedly says, it is about “a culture change”. The reforms pervade the whole system and the devil is, as they say, in the detail. Take page 64, for example, where a fundamental review of the Police and Criminal Evidence (PACE) Act 1984 is flagged up. The Home Secretary ponders whether “the sheer detail in PACE creates too much potential for the police to be tied in legal and procedural knots”, and he goes on to question whether all arrested people need to be taken to police stations at all.
According to Jane Hickman, senior partner at London firm Hickman & Rose and secretary of the Criminal Appeal Lawyers Association, in her 25 years of practice PACE was “the best piece of legislation that was ever passed”. The PACE codes offer fundamental and basic protections “which we seem to have forgotten about in the headlong rush to convict,” she says.
“Everyone agrees that the level of miscarriages of justice in the 1970s were as a result of there not being in place something like the provisions of PACE, but it doesn't mean that that they couldn't be improved without sacrificing relevant and sensible protections for suspects and defendants,” Falconer says.
In the run-up to the publication of 'Justice For All', Tony Blair reflected that everything was relative, including, apparently, miscarriages of justice. It was a miscarriage when “delays and time-wasting” denied victims justice for months on end and also when the police see their “hard work and bravery thrown away by courts who let a mugger out on bail for the seventh or eighth time”. He added: “And it's perhaps the biggest miscarriage of justice in today's system when the guilty walk away unpunished.”
Is it more of a miscarriage than someone being banged up for 20 years for a crime they did not commit? “Guilty acquitted and innocent convicted, they're both miscarriages,” Falconer replies. He argues that yes, the reforms are radical, but they are also well balanced. “The argument against change is that it's 'the slippery slope' or the 'thin end of the wedge'. But if that applied to everything you'd never change anything,” he says. “The criminal justice system is incredibly precious and we have to be incredibly careful to ensure that the changes we have been making have proper safeguards; but we can't be completely static.”

'Justice For All': the proposals

Convicting the guilty
•Double magistrates' sentencing powers to 12 months.
•Bring defence disclosure in line with prosecution by increasing incentives and sanctions to ensure compliance.
•Allow the use of hearsay evidence where there is good reason.
•Allow judges to sit alone in serious and complex fraud trials.
At the trial
•Reveal defendant's previous convictions when relevant.
•Scrap double jeopardy for serious cases if compelling new evidence comes to light.
•Give witnesses greater access to their original statements at trial.
•Get tougher on the middle-class opt-out in jury trials.
•Give the prosecution the right of appeal against rulings that terminate the prosecution case before the jury decides.
•Increase the proportion of the population eligible for jury service.
Where a defendant is convicted
•Ensure more uniformity in sentencing and establish a new sentencing guidelines council chaired by the Lord Chief Justice.
•Enable courts to offer drug treatment as part of a community sentence for juveniles.
•Introduce 'Custody Minus' – community supervision backed by automatic return to custody if the offender fails to comply with the conditions of their sentence.
•Develop 'Custody Plus' to ensure that short-sentence prisoners are properly supervised and supported after release.
•Introduce intermittent custody to enable use of weekend or night-time custody for low-risk offenders.