Accused must reveal defence, says report

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The Independent Online
(First Edition)

A NEW system of plea bargaining, retention of a modified right to silence, and an independent tribunal with lay members to examine miscarriages of justice are among the central recommendations of the Royal Commission on Criminal Justice to be published this week.

The 300-page report of the commission, chaired by Lord Runciman of Doxford, proposes that defendants should have to make an advance disclosure of their defence once the Crown case against them is known. It wants all confessions to be videotaped or made in the presence of an independent solicitor.

After toying with radical changes the commission has decided to back the traditional adversarial system of court conduct. There will be no independent investigator to supervise the police or a nationalised law service charged with defending the poor, as exists in the United States.

'It is basically going to be a moderate report,' said a senior criminal barrister last week. 'The emphasis will be on strengthening, rather than replacing, the existing system.'

Reformers had hoped for a new rule blocking convictions solely on the basis of a confession. However, the commission has rejected arguments that this is the only way to prevent miscarriages of justice and will recommend that confessions should only be admitted as evidence if they are recorded or made in the presence of a solicitor.

The commission is expected to criticise the service offered to defendants by lawyers. It will contain harsh words for solicitors who send untrained clerks to advise suspects in police stations and suggest that legal fees should be reduced accordingly when this is done.

Barristers will be told that they must see clients who have been convicted to discuss the possibility of an appeal. Some lawyers expect to be told that they must draw up, and follow, a rigorous guide to best practice.

The right to silence in reality a bar on the Crown from citing the defendant's refusal to answer questions as evidence of guilt split the commission for several months. Professor Michael Zander, one of its members, will produce a minority report which says that the defence disclosure recommendations designed to prevent 'ambush defences' will remove a vital protection for defendants.

But the decision is a compromise. Although Michael Howard, the new Home Secretary, is likely to make no immediate response and study the report over the summer, his predecessor, Kenneth Clarke, was known to be in favour of abolishing the right to silence on the grounds that it hampered police investigations.

Mr Howard is likely to come under pressure from the police already facing sweeping reforms of their pay and conditions after the Sheehy report to take the same view.

Although rejecting full-scale plea bargaining on the US model, the commission proposes a system under which sentences can be reduced if a defendant pleads guilty in advance of his trial. The main purpose is to prevent the costs and heavy administration involved is summoning jurors for trials which 'crack' on the first day because of a guilty plea.

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