Dr Shepherd, an adviser to both police and defence lawyers, was spotlighting the potentially lethal mixture of the prevailing police culture and the new regime for restricting the disclosure of evidence in the 1996 Criminal Procedure and Investigations Act, which comes into effect today, following the minimum of opposition in Parliament. The biggest test for the members of the Criminal Cases Review Commission, the new miscarriage of justice watchdog which also begins work today, is whether they understand that cultural message. And the biggest test of that will be their approach to re-investigations, particularly the extent to which they will be content to allow the police to continue investigating themselves.
Just as the Bridgewater case showed just how poor successive police inquiries were at uncovering a miscarriage of justice, the 1996 Act (which in most cases lets the investigating police officer decide what is disclosed to defence solicitors) is a potent argument for a fundamental change of attitude. The members of the commission should consider what Dr Shepherd and Roger Ede, secretary to the Law Society's criminal law committee, have to say about the cultural question.
"The community and the courts," they write in their book Active Defence, published last week, "are led to believe that the evidence presented in cases by the prosecution, and upon which they rely, is the product of a quality investigative service rendered by police officers, civilian support staff and forensic scientists who are professionally trained, who are subject to supervision and quality controls, who have open minds, who are committed to exposing to the prosecution and the defence the gaps and anomalies in the police investigation, the police representation of the case and the prosecution evidence. The reality does not support the belief. What is presented to the court in all too many cases is a complex, collaborative illusion."
The truth, they say, is that many police officers and even forensic scientists are untrained for their investigative tasks, there is no real supervision, there are no real quality controls, and there are strong group pressures on police officers to do what they have always done - attach criminality to the suspect in the frame.
In a climate where "zero tolerance" extends only to criminality, and not to deficiencies in the justice system, there is no reason to expect that culture to change. The 1996 Act - the result of one of the most effective lobbying campaigns by the police - leaves officers to make key decisions about the disclosure of material to the defence at the very time they are building a case for the prosecution. But the mindset in the police station, which views the defence as a hindrance to the conviction of the guilty rather than a safeguard against getting it wrong, is very different.
Because the Act ignores the real world of police investigations, in effect expecting a police officer to reveal weaknesses in his own case, a supine Criminal Cases Review Commission could ensure that future miscarriages go undetected. So will the commission be content to simply hand over investigations to police officers? Or will it appreciate that requiring police officers conducting a re-investigation to dismantle a case constructed by their peers calls for a change in the professional habits of a lifetime?
Do the commission's members accept that it is the systemic failure by the police and the prosecution to disclose evidence inconvenient to their case which has caused the most serious miscarriages of justice over the past 20 years? Are they alive to the re-introduction of a new culture of non-disclosure?
With one or two exceptions - such as Dr James MacKeith, consultant forensic psychiatrist at the Maudsley hospital and an expert in false confessions - the membership of the commission has not inspired confidence. The chairman, Sir Frederick Crawford, is a former plasma scientist and university administrator and is probably better known for his prominence as a freemason; Fiona King is a former senior Crown prosecutor; Laurence Elks is a solicitor who used to specialise in takeovers; David Kyle is another senior Crown prosecutor and former government lawyer; John Leckey has been HM Coroner for Greater Belfast since 1992; Jill Fort, a barrister, is an immigration adjudicator and chairman of a VAT tribunal; Baden Skitt was an assistant commissioner with the Metropolitan Police; John Knox, an accountant, was deputy director of the Serious Fraud Office until last year; Karamjit Singh is a Civil Service Commissioner and former member of the Police Complaints Authority; Leonard Leigh is professor of criminal law at the London School of Economics.
The Home Office was pleased to announce the inclusion of three "lay" members when the long-awaited list was unveiled in January. What experience will they bring? Edward Weiss chairs Lloyd's Syndicate Loss Reviews and is a former director of Chubb, the security firm; Anthony Foster is a former chief executive of ICI Chlorochemicals; Barry Capon is a recently retired council chief executive. No one is questioning the integrity of any of the members, but where is the expert for the defence?
How many of the members are aware of the huge disparity in resources and investigative powers between the police and the defence? How many understand the increasing difficulty in getting adequate legal aid to deconstruct the case theory?
Paradoxically, one solution would be to take a cue from the world from which some of these commission members are drawn. When things go awry in the City, the Department of Trade and Industry can appoint senior QCs and accountants, equipped with powers to demand answers, to investigate alleged wrong-doings. The appointment of similarly armed senior barristers and solicitors, independent of the police or any other government agency, to ask the questions would be one way of building confidence in the system. But the commission's news release last week did not make encouraging reading, highlighting those powers it does not have, but which the police could exercise on its behalf, rather than those it has.
Yet we have now a machinery for examining miscarriages that for the first time is independent of government. The commission will be empowered to use the police for a re-investigation, but not obliged to; it will be able to exert, if it chooses, hands-on control of a re-investigation; it has wide powers, if it chooses to use them, to call for the disclosure of material, which the defence and even the prosecution may never have seen - and disclose it to the applicant.
Here is the opportunity for an independent body to effectively challenge the deep resistance of the system to admitting it may have been wrong. And since the passing of its mirror image, the 1996 Act, never has there been such a clear need to do so. Has this commission got what it takes?Reuse content