British journalist, Matthew Syed, wrote a very interesting book which I can highly recommend. It’s called ‘Black Box Thinking’ and begins with a comparison in how failures are treated in the British medical profession and the air travel industry.
In looking at 2 comparable tragic incidents the former, unfortunately, tried to gloss over the errors while in the latter there was an open investigation which led to improvements in the way similar situations would be handled in the future.
Perhaps it was thought that admitting that experienced surgeons could make such tragic mistakes would damage confidence in the medical profession.
Nonetheless, to pretend, or kid oneself – it eventually leads to the same thing – that such circumstances are so rare that it is not worth considering what could be done to prevent it happening again is a very slippery slope to embark on.
It ends up with the conclusion that (false) confidence in the medical profession is more important than the tragic loss of life that occurred on that occasion and may possibly occur again given the failure to make improvements.
Confidence or truth?
Certainly, some have taken this stance in the case of our justice system.
In 1980, one of Britain’s most eminent judges, Lord Denning, in dismissing the civil case against the Police said by the Birmingham Six (whose convictions were quashed in 1991) said:
“If they won, it would mean that the police were guilty of perjury; that they were guilty of violence and threats; that the confessions were involuntary and improperly admitted in evidence; and that the convictions were erroneous… That was such an appalling vista that every sensible person would say, ‘It cannot be right that these actions should go any further’.”
In other words, regardless of the merits of their case, whether those things were true or not (and it turns out that they were) did not matter as much as what the public might think if they were, and that was sufficient reason to dismiss the case.
Lord Denning, an often controversial figure, appeared to be of the opinion that, in protecting (false) confidence in the justice system, some innocent people were expendable. I’m sure he would have taken a different view if one of those people was a member of his family but, given the seniority and influence of Lord Denning, would we be surprised if the justice system followed that stance? The removal of corroboration in alleged sex crimes and the requirement for fresh evidence for an appeal tells us that it did.
I find that attitude not only utterly appalling for its own sake but ultimately counter-productive. Like all cover-ups (for that is what it amounts to), when they’re found out confidence is damaged all the more.
In the air industry, confidence is also paramount. Who would fly if they thought there was a higher than negligible chance of the plane crashing? So when there are crashes, or even near misses, does the air travel industry try to hide them or pretend they were million-to-one accidents and that nothing need be done to improve the system?
No it doesn’t. The black box is recovered where possible and a full inquest is made and the results made public.
Faults, whether human or mechanical, are identified and, where deemed necessary, industry-wide improvements are implemented.
No system is flawless but it is the very openness of admitting to mistakes and genuinely seeking to address them which gives us the confidence to board the aeroplane next time we fly.
The justice system in this country is extremely flawed. However, when I and many other people to whom I’ve spoken have written to their MP to complain about it, most have probably received an answer like the one I got:
Basically, it said that our justice system is very old and has worked for a long time and that it is one of the best in the world.
This kind of churned out nonsense from politicians is a case of sticking their heads in the sand because they don’t want to have to deal with it. It is the equivalent of plugging their ears with their fingers and singing “La la la la…” as soon as they start to hear criticism of it.
But the criticism will not go away because it is more than justified. Another highly recommended book, The Secret Barrister: Stories of the Law and How It’s Broken highlighted many of its faults.
In a letter I received in response to the question of miscarriages of justice, was the response that they had full confidence in the system because:
- the CPS would not prosecute unless there was a reasonable chance of conviction
- the burden of proof was on the prosecution
- at least 10 of a jury of 12 randomly selected people had to be sure of guilt
- there was a safety net of a court of appeal
- there was a further opportunity to correct miscarriages of justice via the CCRC.
This was clearly a standard letter and described how the system SHOULD work. Unfortunately, such responses demonstrate a lack of appreciation that it is precisely the fact that the justice system does not work like that in reality which was the basis of my and others’ criticisms.
Let’s take these one at a time:
Crown Prosecution Service
It is indeed a stated directive of the CPS that they should not proceed with prosecution unless there is a reasonable chance of success. This is often held by lawyers to mean 50% or more.
Note that there is an inherent trust in the jury system here. In other words, if the CPS realised that juries tended to convict certain crimes more readily, they could lower the evidential bar and achieve their 50% target. For example, some lawyers believe that they are prone to err on the side of prosecuting in cases involving alleged historical sexual abuse and ‘let the courts decide’ rather than risk criticism for not prosecuting such cases.
Certainly, some decisions seem hard to fathom. Certain high profile cases in which there were allegations from numerous sources have been dropped on the grounds of insufficient evidence, whereas in others where there has been only one complainant and the case has boiled down to their word against that of the suspect, the CPS had decided to prosecute. In such cases, what constitutes ‘sufficient evidence’ to assume a >50% chance of success?
Then there is the huge question of disclosure. This, for those who still don’t know what that means, is the term for the obligation by the police and CPS to disclose to the Defence any information which may harm the prosecution’s case or help the defendant’s. The problem is that it is down to the police and the CPS to decide what is relevant and what is not.
In a survey in 2018, 97% of lawyers said they had experienced problems with disclosure. A significant reason for this may be the huge cuts in funding of the justice system in recent times, leaving little time for the material to be fully examined, but it cannot all be explained away by that.
My own experience was simply that the CPS did not want to hand over information which had been examined and which the Defence considered may be important.
If the CPS fail to disclose such information and the defendant is found guilty, the CPS will consider their decision to prosecute fully justified.
A better, more transparent system of disclosure is necessary if we are to avoid the continuation of disclosure problems.
The burden of proof
Traditionally, a suspect is supposed to be regarded as innocent unless and until proven guilty.
In cases involving sexual allegations this concept has come under significant threat. In response to criticism of the treatment of victims of sex crimes, the police were given instructions to “believe the victim” in the first instance and test the assumption by investigation.
This policy, however, carries a dangerous corollary. Where an allegation is made and denied, an assumption that the complainant is telling the truth automatically carries with it an assumption that the suspect is lying. This reverses the burden of proof.
Furthermore, it is clearly unrealistic to expect police to switch seamlessly from a mindset of believing the complainant’s allegations to one which questions them so that investigation can be carried out with sufficient rigour.
The issue of wrongful convictions due to Joint Enterprise in murder cases was thought to have turned a corner in 2016 when the Supreme Court pronounced that the Justice system had taken a wrong turn in the past. The much hoped-for subsequent changes did not, however, materialise and innocent people continue to be imprisoned.
The Jury system
The concept of foresight has weakened the idea of proof in Joint Enterprise cases – it’s hard to actually prove that one person could have foreseen what another would do – and so has the removal of the requirement for corroboration in alleged sex crimes.
Many such cases, especially those involving a single complainant, end up in a ‘one person’s word against another’ scenario in which the jury is asked to decide to choose who they believe, something humans are very poor at, and which flies in the face of real proof.
Cases which depend on pure opinion will inevitably be more decided on pre-formed bias. In cases involving alleged victims who are children (or were at the material time such as in historical sexual abuse cases), for example, jurors who are parents may well be more inclined to submit a guilty verdict even where the evidence does not justify it.
The Court of Appeal
The idea in many people’s minds that the Court of Appeal is there to correct miscarriages of justice is erroneous. The Court of Appeal is not interested in that and one cannot currently apply to the Court on the basis that the jury made a mistake. The Court of Appeal is only interested in whether the procedures have been followed correctly. If they have but the jury DID get it wrong, the Court of Appeal won’t help unless you find brand new evidence which, in the Court’s opinion, might have changed the jury’s mind had they known about it.
The Criminal Cases Review Commission (CCRC)
The CCRC was set up to identify potential miscarriages of justice and re-submit them to the Court of Appeal but there are 2 significant problems:
- The lack of funding it receives means it does not have the resources to deal with more than a fraction of applicants
- They are still subject to the same restrictions in sending cases to the Court of Appeal as everyone else – i.e. no new evidence, no appeal. This makes the CCRC essentially toothless.
So the blind confidence shown be the MP, and probably by a large majority of the general public is based on ignorance and is entirely misplaced.
That our current justice system is in a mess is something more and more are starting to recognise. In order to fix the problems in it those with the authority to do so must:
- Recognise and admit that it is currently highly flawed,
- Decide what kind of justice system we really want. If that means making major changes to the way we have done things in the past, then so be it
- Make the commitment to do what is required and provide the necessary resources.
Do we want a justice system in which more importance is placed on our (misplaced) trust at the expense of wrongly convicted innocent people (and bear in mind that one of the expendable innocents might be anyone of us), or do we want one which will aim for continuous improvement by admitting that mistakes will occasionally be made and honestly seek to do everything it can to rectify them and try to prevent similar errors in the future?
This includes dealing with those who have already suffered under the present system. We cannot honestly talk about future safeguards while abandoning those people to an unjust fate. The Court of Appeal and the CCRC must deal fairly and honestly with those innocent people who have been wrongly convicted.
A major function of the justice system is of course to punish the guilty and we should seek to do this as accurately as possible. It can be extremely frustrating for victims of crime to see the perpetrators walk free. But ensuring that the guilty are punished must not be at the expense of the innocent being wrongly convicted.
Finally, there must be the will to do what is necessary to improve it. This inevitably means not only an end to the enormous cuts to the budget, but a sufficient increase to rectify the weaknesses such cuts have caused.
But it also requires the will and strength of purpose to develop our justice system into one fit for the 21st Century so that future Brits can again genuinely proclaim that we have a justice system of which we can be proud.