Guilty, until it all falls apart

The collapse of the Paul Burrell trial has once again shown up the flaws in a prosecution system driven by tabloid justice. But, asks Robert Verkaik, will proposed changes make matters worse?

The flawed criminal investigations into the alleged theft of the personal property belonging to Diana, Princess of Wales, and the murder of Peckham schoolboy Damilola Taylor, seem worlds apart. But many lawyers believe the two troubled cases are clear evidence that prosecutions are being driven by a new kind of tabloid justice.

For Courtenay Griffiths QC, the barrister who successfully defended one of the youths accused of the Damilola killing, the sensational unravelling of the Paul Burrell trial 11 days ago had a very familiar ring to it. "Both cases," says the barrister, "could have so easily have ended in a miscarriage of justice. It's time the Crown Prosecution Service (CPS) took a greater role in overseeing the investigation of crime."

Police in the Damilola Taylor case were criticised by the trial judge for offering inducements to a key child witness. Whereas senior officers in the Burrell case were blamed for misleading members of the Royal Family about the former royal butler's dishonest intent. "In high-profile cases such as these there was a massive public interest, with people pushing for a prosecution," says Griffiths.

At the very least, the collapse of the case against Paul Burrell and the police failures in the Damilola Taylor investigation highlight serious weaknesses in the way that crime is investigated in this country.

Last week, the Attorney General, Lord Goldsmith QC, resisted pressure to hold an investigation into the Burrell case. This might be partly because the Director of Public Prosecutions, Sir David Calvert-Smith QC, is already conducting a wide-ranging review of crown prosecution practices in the wake of the Damilola Taylor trial at which all four defendants were acquitted. Sir David will shortly present his report to the Attorney when he is expected to recommend closer scrutiny of police investigations by crown prosecutors. Lord Goldsmith has also asked him to consider the advantages of allowing prosecutors to interview key witnesses in sensitive investigations.

In tomorrow's Queen's Speech, the Government will launch the most radical shake-up of the criminal justice system for more than 50 years when it announces two separate crime bills. The first will be sponsored by the Lord Chancellor, Lord Irvine of Lairg, and will include the structural changes to the courts system while the second will be introduced by the Home Secretary, David Blunkett, and will contain the more controversial proposals.

Lawyers believe that some of the measures in the Blunkett Bill represent a step too far which, rather than eliminate the kind of criminal-justice calamity played out in the Burrell case, will only lead to new courtroom farces. Chief among their concerns are the plans to abolish the double jeopardy rule in some serious cases and the restriction to a defendant's right to trial by jury.

Peter Rook QC, chairman of the Criminal Bar Association, says that by ending the right not to be tried twice for the same offence the police will be encouraged to take less care in their investigations. "Removal of double jeopardy will also encourage unacceptable hounding of suspects by the media," he says.

Griffiths warns: "If the police are given a second bite at the cherry the standard of police investigations will further deteriorate because they know they can bring a second prosecution at a later date."

Other proposals in tomorrow's Bills are equally unwelcome. The Bar and the Law Society in England & Wales have strong reservations about curbs on the defendant's right to be tried by a jury. It is widely thought that ministers will press ahead with recommendations to end jury trials in very serious fraud trials and where the judge believes that there is a risk of jury knobbling.

But, says Rook: "All cases above a certain level of seriousness should have jury trial as they do now. You can't remove a category of serious offence just on the grounds of expediency."

If judges sit alone they will be vulnerable to all kinds of allegations of bias and undue influence. Rook argues that juries allow justice to be seen to be done and give the public confidence in the courts: "No one ever accuses a jury of being pro prosecution or pro defence."

The Bar also rejects the idea that juries cannot understand complicated fraud trials. "There is no evidence that they are having problems," says Rook. "Most fraud cases are about dishonesty, and who better to decide that than the 12 jurors rather than the judge sitting on his or her own?"

The Bar is suspicious about the tactics that ministers are employing to force through these controversial measures. By splitting the proposals into two Bills, one in the House of Commons and one in the House of Lords, barristers argue that they are trying to duck the political opposition that defeated their ill-fated Mode of Trial Bills which were introduced in the Lords.

Matthias Kelly QC, the incoming chairman of the Bar, says: "It's clear the Government is jumpy about some of the more controversial proposals in its plan. That's why we're hearing of its evident wish to bang through unpopular legislation, whatever the public thinks. People trust juries. We say they should continue to form a central part of our system of justice."

Such trenchant opposition to reforms of the centuries-old criminal justice system might raise suspicions that the Bar is doing its best to protect its own interests.

Not so, says Kelly: "Scrapping the double jeopardy rule would double our money, as cases could be tried again and again. Despite this, we argue against our own financial interests in saying the rule should stay. The police and prosecution must live with the pressure to get the case right first time, every time. We don't want a system where someone is acquitted, the press or police don't like it and pressure is applied to re-try them. The verdict of not guilty should bring 'closure'."

Barristers and solicitors do not object to everything in the Government's proposals. They support measures to end the so-called middle-class opt-out for jury service and ministers' plans for a more flexible approach to sentencing, and plans to allow prosecutors to take over from the police the responsibility of charging suspects.

But many lawyers and judges believe that tampering with the system will not lead to the fundamental changes in prosecution culture that lie at the heart of the collapse of high-profile trials. Earlier this year, a study found that 11,000 cases were wrongly dropped by the CPS in 2001. In a report, the CPS Inspectorate said some of these cases were dropped "with little or no record of any analysis or reasons for the decision".

Lord Ackner, the retired law lord, believes there is a culture of superficiality pervading our justice system. "There's an increase in superficiality with more emphasis on the soundbite and not enough research into the facts of the case. In my day my pupil master told me that what matters is what is in the document and if in doubt you should look it up. You can't blame the criminal justice system just because lawyers don't take proper advantage of it."