Why should courts be frightened of the truth?

If the double jeopardy rule is 800 years old, then it is long overdue for a sensible overhaul
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I like pretty much everything about Justice For All, the White Paper on reform of the criminal justice system, except the rhetoric surrounding it. Even the statement of the "single clear priority" on which this complex raft of proposals floats sets my teeth on edge.

I like pretty much everything about Justice For All, the White Paper on reform of the criminal justice system, except the rhetoric surrounding it. Even the statement of the "single clear priority" on which this complex raft of proposals floats sets my teeth on edge.

This priority is "to rebalance the criminal justice system in favour of the victim and the community so as to reduce crime and bring more offenders to justice". It's the phrase "in favour of the victim" that jars, not because I don't believe that the victims of crime could be treated a lot better than they are under the present system, but because the idea of a rebalancing "in favour of the victim" implies a loading of the dice against defendants.

If defendants happen to be innocent, then they are, of course, victims, too. But these are not the right sort of victims, the victims who are being appeased in this explanation of the White Paper's contents. These victims are the victims of crime, not of wrongful accusation. In a situation in which two victims, one of each kind, meet in a courtroom, a rebalancing in favour of one victim means a rebalancing against the interests of the other.

So the phrase, when looked at in this context, taps immediately into the fears and suspicions of all those powerful forces who so vehemently oppose any tinkering with the golden scales of British justice. I'd prefer the criminal justice system to be rebalanced in favour of truth and the community, a far finer thing than this retributive talk of individual victims. That is the rebalance that is really needed. For it is surprising how much truth is a bystander in the criminal justice system, how much truth is suppressed in our courts, in the interests of an artificial notion of "fairness".

I believe that it is truth that this White Paper really seeks to rehabilitate. The tilting of the balance in favour of victims comes only in the suggested reforms of procedural matters. The "rebalances" viewed with most suspicion – the discretionary disclosure of past convictions or acquittals and the loosening of the double jeopardy rule – are, and should, be concerned only with revealing more of the truth than is presently allowed. So why are so many people so afraid of them?

For impeccable reasons, opponents say. Which just brings us back to windy rhetoric, of which there is much to come. My colleagues on this newspaper, and many other eminent practitioners, are most upset by what is seen as an "assault" on double jeopardy. Interestingly, since many of these critics are liberal, they tend to focus their worries on the rather conservative non-argument that the double jeopardy rule is 800 years old. Which, to me, on the contrary, suggests that it is long overdue for a sensible overhaul.

John Wadham, director of Liberty, the civil liberties campaigning group, speaks passionately in favour of those wrongfully tried: "For innocent people, even once acquitted, their ordeal won't be over. Police and prosecutors, knowing they can have a second bash, won't have to tackle real problems of incompetent investigation in the first place."

But any change in the double jeopardy law will have safeguards to make such abuses impossible. Already, in a situation such as that cited by Mr Wadham, a person found innocent is protected against harrassment by over-zealous police wishing to pin other charges on them. Any retrial will remain extremely hard to procure – and police and prosecutors will be well aware that a call for a retrial would be a just as public an admission of incompetence as the present situation, in which evidence they failed to uncover comes to light and not a soul can do anything to test it within the cordons of justice. Retrials will be ordered only when there is "compelling fresh evidence giving a clear indication of guilt". The innocent need not worry here, for retrials will only occur when there was clearly and demonstrably a miscarriage of justice in the first place.

By this I mean a miscarriage of justice in which the guilty walk free. This kind of miscarriage of justice is one that the opponents of reform remain astonishingly sanguine about, even though the risks to the public of leaving free those who have committed murder, manslaughter, rape or armed robbery are manifold. The Bar council seems unconcerned about this category of miscarriage of justice as well. David Bean QC, chairman of the Bar, suggested that "disclosing previous convictions risked miscarriages of justice."

But actually, in the limited contexts in which judges would be directed to apply such a relaxation, disclosures would stop miscarriages of justice – though only if you view the guilty being found innocent to be just as much a miscarriage of justice as the other way around.

Previous convictions will not be revealed routinely. They will be revealed only in certain circumstances, say if a defendant has repeatedly come to court charged with the same offence and offering the same defence. As such, it will be a deterrent to those who deliberately commit the same crimes again and again, knowing that they can beat the criminal justice system. Under the new rules, such people are likely to plead guilty instead of not guilty, or refrain from reoffending in the first place. Surely both of these are positive outcomes?

Then there is the "thin end of the wedge" argument, suggesting that once a chink of change has been heralded in, there will be an orgy of "rebalancing". All I can say to that is that if it has taken us 800 years to come this close to changing the double jeopardy laws, then it's more than likely that further change will take just as long a time.

Such assurances cut no ice with critics, though, whose entire view of British justice seems coloured by the idea that absolutely everyone – judges, the police, juries, prosecutors, the public, victims of crime – except them, is simply itching to give dogs bad names and hang them from the lamposts they might possibly have urinated against (who cares if there's no evidence beyond the steaming puddle?).

Which prompts me to think about how in this case it can be that such a society evolved such an admired, stringent, measured, system of justice in the first place. Maybe it is in place not because we are a fair and decent society, but for the opposite reason – that we are only too willing to judge unfairly and need to be protected from our own prejudices. Certainly that seems to be the view among those who counsel against change of any kind. I think they're wrong.

There is a down side to our belief in the sanctity of our ancient system. During hundreds of years of supposedly perfect justice, we have failed to evolve anything like the penal system of a truly liberal democracy. The rebalancing in Justice For All seeks to improve the conditions of prisoners, their rehabilitation, and their re-entry into society. There's been a sinister quid pro quo at work in the existing system: it may bend over backwards to ensure that people are innocent until proved guilty, but once guilt has been established all compassion seems to evaporate.

This White Paper suggests a system under which more people are called to account for their guilt, but pay for it in a kinder coin. I'd rather invest money in a criminal's education than spend it on an elaborate trial that makes us feel that a person has been given every chance, when in fact it has drained that person's life chances away before sentence has even been passed. This White Paper is about persuading the guilty to admit it, and be helped to become more useful citizens. That would be Justice For All indeed.

d.orr@independent.co.uk

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