PERVERSE VERDICTS
Ludovic Kennedy argues that
the adversary system of justice Must be replaced
THE other day, wanting to present a more acceptable public face and seem to be less guarded about the way it runs its affairs, the English and Welsh Bar held its first public conference. I was greatly honoured to be the only non-legal person invited to speak. My talk was called 'British criminal justice — the worst in the world?' — a corrective to the saying, prevalent when I was a boy and not heard much nowadays, that it was the best in the world — a remark invariably made by those who had never studied any other system.
Having written several books about mis- carriages of justice (10 Rillington Place, case of Timothy Evans hanged for murder, later granted posthumous free pardon; A Presumption of Innocence, case of Patrick Meehan, served seven years of a life sentence for murder, later granted free pardon and £50,000 compensation; Wicked Beyond Belief (with Lord Devlin and Bryan Magee MP), case of McMahon and Cooper, served 101/2 years of a life sent- ence for murder, released three weeks after publication of book; The Airman and the Carpenter, case of Bruno Richard Hauptmann, electrocuted in 1936 for mur- der of the Lindbergh baby) and having, both through the work of 'Justice' and the BBC Rough Justice programmes been cog- nisant of many more, I had come to two conclusions.
The first was this: that the great majority of miscarriages of justice come about as a result of CID officers manipulating the evidence. The police do not do this know- ingly to frame the innocent (the McMahon/ Cooper case was a glaring exception), rather to ensure the conviction of those who, lacking corroborative evidence and often under pressure to get results, they have deluded themselves into thinking are guilty. They practise a variety of ploys; inventing false confessions (the verbals), planting incriminating evidence on the accused's person, suppressing statements favourable to the accused, persuading wit- nesses to change their minds, etc. And not only is this wrong in itself but it is also becoming counter-productive; for in some metropolitan areas now juries are so suspi- cious of the police that they are refusing to convict solely on police evidence, result- ing, when they are leaned on by skilful defence counsel, in the acquittal of the guilty.
From this I was led inescapably to the second conclusion: that only under an adversary system, such as is practised here and in the United States, are such abuses possible. In my talk I went on to explain the advantage of the continental and, in particular, the French inquisitorial system whereby in all serious cases (murder, manslaughter, rape, robbery, etc) a juge d'instruction or examining magistrate at once assumes responsibility for investiga- tions, directing the police in their inquiries and himself questioning witnesses, includ- ing any suspect. Police malpractices there- fore, of the kind exercised here, are virtually impossible. (In cases where there is no juge, it may well be a different matter.) In addition, I said, the inquisitorial system had other advantages. Examination and cross-examination of witnesses at the court of trial are carried out, not by counsel, but by the presiding judge. This not only saves going over the same ground on two separate occasions at often tedious length, but is also less confusing for the jury. Furthermore, it avoids the pseudo- dramatic atmosphere of the adversary trial which encourages counsel to strike post- ures and attitudes, and where witnesses try to remember to say what they promised to say; while those witnesses whose evidence here might well affect the verdict but are not called for fear of saying the wrong thing, are among the first to be called in France.
In addition the accused is a compellable witness, which is only common sense (and as he used to be here before the ad- versary system came into being); but as a safeguard he is not allowed to plead guilty. As for expert witnesses, the court will call as many as it thinks necessary to form a view; no pitting of professional people against each other as here, often so de- meaning for them and, again, confusing for the jury.
Finally I said that while I knew some of the Bar were pinning high hopes on the Crown Prosecution Service pre-empting police malpractice by taking prosecutions out of their hands, I could not share their enthusiasm. In Scotland, where prosecu- tions were in the hands of the Procurator- Fiscal, the incidence of miscarriages was not claimed to be any less. All the serious cases with which I had been concerned had gone through the office of the Director of Public Prosecutions, and he had been powerless to prevent malpractices taking place. They would only stop, I concluded, when the investigative process was taken out of the hands of the police and transfer- red to a neutral, legal, supervisory figure; a stipendiary magistrate with the power to question, analogous to the juge in France.
At the end of my talk were questions, and the interesting thing about the ques- tions was that while some of them queried my facts, and others were sceptical about how they did things in France, not one of them challenged my thesis that an in- creasingly unacceptable number of miscar- riages of justice was now occurring as a result of police malpractice. Indeed the impression I was left with was that they believed that no other system was less fallible than ours, that I had probably exaggerated the number of miscarriages occurring (200 to 300 in prison at any one time according to Tom Sargant of Justice) and that there was basically nothing wrong with things as they were.
This impression was enhanced by other speeches on criminal law made in the course of the conference. One eminent QC spoke of the necessity or otherwise of pre-trial disclosures by the defence, another about the admissibility or non- admissibility of confessions in the light of the new Criminal Evidence Act. I remem- bered the number of trials I had seen or read about where, time and again, the proceedings came grinding to a halt while the jury was sent out of the room and the judge listened to arguments about admissi- bility. And I thought once more, this is crazy, this system is not about justice, it is an Oxford Union debate, with rules as complex as those of cricket, which have to be explained and learned and sometimes changed. Did counsel ever realise, I won- dered, that in an inquisitorial system there is no need for rules about admissibility because when you are trying to reach the truth, there is virtually no evidence that is not admissible? Perhaps they did, and then dismissed the idea, knowing that their own role in an inquisitorial system would be greatly diminished. Yet for all concerned, as much as for justice, how greatly liberat- ing it would be.
The trouble about the adversary system, surely, is that it prevents one seeing the wood for the trees, dims the vision of the ultimate goal. It is a system which, because of its gross artificiality, even at times absurdity, encourages emphasis on means rather than ends. Among that gathering of distinguished and companionable lawyers who are all so wedded to it that it would take an axe to drive them apart, was there one, I asked myself, who might have asked himself during the conference: 'Is the object of the system I practise to see that as many guilty people as possible are con- victed, and as many innocent as possible acquitted? Is it in fact doing that, and if not, is there a better way?'
I doubt if even one asked that. But until those questions are asked, and the answers faced, then in my view our courts of law will continue to bring in perverse verdicts against both innocent and guilty.
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