Will they be the last?

Though the Bridgewater Three are free and the law is now supposed to prevent such injustice, doubts over police methods remain.
The release of the "Bridgewater Three" on bail pending the inevitable quashing of their convictions by the Court of Appeal raises once again two fundamental questions about our Criminal Justice system: "How could it have perpetrated such a miscarriage of justice?" and "Could it happen again?"

It is tempting to comfort ourselves with the knowledge that the allegedly fabricated confession which caused the prosecution case to collapse was drawn up the (now deceased) police officer Detective Constable John Perkins, of the West Midlands police, who went on to become a member of that force's notorious Serious Crime Squad, and has probably been implicated in more miscarriage cases than any other officer.

That Perkins's behaviour is central to so many cases can, perhaps, be seen as lending credence to the view that eradicating the inevitable (but, on some views, only occasional) rotten apple is the best means of preventing such a large number of miscarriages of justice from occurring again.

But those who favour the "one rotten apple" theory as the explanation for those wrongful prosecutions must also explain why it was that corrupt officers managed to go undetected for so long. Certainly the criminal justice system itself proved ineffective as a means either of identifying them or of weeding them out of the police force.

We are told now, of course, that such miscarriages could not happen again because of the enactment in 1984 of the Police and Criminal Evidence Act (Pace) and its codes of practice. True, all interviews of suspects carried out in police stations must be tape-recorded. But this does not apply to conversations and "informal interviews" carried out elsewhere, when some officers take their suspects on the "scenic route" to extract an alleged confession whose veracity cannot be checked against a tape-recording.

The problem of "car seat confessions" is not new. In 1991, indeed, the independent inquiry into the working practices of the Serious Crime Squad found at least two wrongful convictions to have been based on false confessions allegedly obtained in a squad car. Yet Pace has done nothing to eradicate the problem and Michael Howard, the Home Secretary, displays alarming complacency in refusing to do anything to plug this loophole.

Supporters of the status quo can rightly point to a clear drop in the number of cases where unreasonable physical violence has been alleged against arresting or interrogating officers. But this may have more to do with the increased vigilance of defence solicitors in protecting the interests of their clients than with any institutional changes in the criminal justice system itself.

In fact, neither Pace nor the main political parties have really tackled the fundamental problem with confession evidence. That is simply that most police investigations of serious crime are conducted with the unspoken goal of getting a confession from whomever is eventually accused. That creates a great deal of pressure on detectives to "break" a suspect.

Yet it is the most hardened criminals who are usually the most resistant to the inevitable stress of arrest and interrogation. The vast majority of those found to have been the victims of miscarriages of justice have been people with a record of petty offences (often as juveniles, and rarely involving any kind of violence), with low self-esteem and below-average intelligence, who are particularly vulnerable to aggressive and insistent questioning and who, if not themselves victims of an entirely bogus "confession", may well be "persuaded" in this hostile environment to confess to a crime they did not commit. Nor can the problem be overcome simply by requiring the presence of the defendant's lawyer at the time when his client apparently confesses. A suspect should undoubtedly be legally represented when he confesses, in order for that confession to be admissible as evidence in court, but that can be no more than a preliminary precaution. Experience suggests that a lawyer's presence is simply not sufficient as a safeguard against the risk of such false confessions.

Any purported solution must also recognise that relying on confession evidence as the bedrock for the prosecution case inevitably runs the risk that other evidence which conflicts with the admissions made will be overlooked or ignored. In the Carl Bridgewater case, for example, fingerprints on the boy's bicycle which matched neither his own nor those of any of the men jailed for his killing were never disclosed in the original trial, and little attempt seems to have been made to establish how they got there. In the Birmingham Six case, too, alleged confession evidence as to how the bombs were planted in pubs was flatly contradicted by forensic evidence taken from the scenes of crime, yet that discrepancy was apparently considered to be so trivial as to be irrelevant.

It is clear that police officers are often tempted to short-circuit the investigative process by going straight to the stage of obtaining a confession before they are in possession of much of the evidence as to how or why the crime was committed. Thus details that they "suggest" to the person under interrogation are not necessarily borne out by evidence gathered later from elsewhere.

To avoid that problem, confession evidence would need to be corroborated by other, entirely independent, evidence in order to be admissible in court. That would put the focus of police investigations on obtaining the maximum amount of evidence about a crime, rather than on finding a likely culprit and persuading him to "cough".

Of course, since evidence comes from members of the public, such a new regime would not work unless the police and the public could develop a real sense of mutual trust, which is so sadly lacking in many areas of the country. But if the police are not prepared to reorientate their methods of investigating crime, and by that unwillingness continue to alienate large sections of the public, they will find it ever more difficult to convince a randomly selected jury that a disputed confession really is something to be taken notice ofn

Dr Tim Kaye is a lecturer in law at the University of Birmingham and author of `Unsafe and Unsatisfactory?', the report of the independent inquiry into the working practice of the West Midlands Serious Crime Squad.