CHURCH OF ENGLAND BOARD FOR SOCIAL RESPONSIBILITY
SUBMISSION TO THE REVIEW OF THE CRIMINAL COURTS
BY LORD JUSTICE AULD
(OCTOBER 2001)
Introduction
1 The terms of reference of the Church of England Board for Social Responsibility require it ‘to co-ordinate the thought and action of the Church in matters affecting the life of all in society’. The Board reports to the Archbishops’ Council and, through it, to the General
Synod.
The Board welcomes the Government’s decision to issue a Consultation Document on the Review of the Criminal Courts
2 Many of the issues covered in the Report, such as the introduction of a unified
Information Technology system, are essentially technical matters, where we feel it would be inappropriate to comment. Equally there are discussions of the composition of the magistrates’ bench, where we will not comment for reasons of brevity. Our submission is primarily concerned with the issues, which, we believe, raise fundamental questions of principle, or with those in which the church has had significant involvement in recent years. Some of these latter topics include the representation of ethnic minorities, and issues, which are related to poverty, such as debt and the non-payment of Television
Licences.
Our submission will therefore be selective, drawing from a report, which is nearly 700 pages long. Along with many others we express our surprise, and our regret, that a report of this length and complexity, which took twenty-one months to write, should have a consultation period of less than four months. We urge the Government to allow more time in future for consultation, as they have done on other reports concerned with the criminal justice system.
Members of the Church of England, and indeed members of all the Christian Churches, are heavily engaged in the operation of the criminal justice system, whether as magistrates, lawyers or members of the judiciary. At the same time the operation of the criminal law does not merely affect the lives of those caught up in it as defendants. It has a vast impact on the day to day life of society, and therefore affects the way in which the
Church of England ministers to the well being of society as a whole. Other submissions will reflect the particular interests, which the various members of the criminal justice system will have. The only point at which the Church of England has a particular interest is jury service of the clergy. Apart from that one point, in which we follow the submission of the Churches Main Committee, our submission is a contribution based on the Church of England's understanding of the traditions of English society.
3.
Composition of the jury (Pages 140-155)
We welcome the desire of Auld to include more people on jury service. It cannot be right that two out of three people escape the call to jury service. We agree with Auld that the only people automatically disqualified should be criminals and the mentally ill. We feel that it is right that M.Ps, doctors, the military, police officers, vets and lawyers should all lose their exemption. What then should be said about the status of the clergy?

The Churches Main Committee will make representations on behalf of the Christian denominations. They will no longer press for clergy to be classified as ineligible, which was their response to the Runciman Royal Commission eight years ago. They do however point out that clergy are privy to confidential information from their relationship with parishioners, and that they need to be available for funerals, and other services. They therefore argue that clergy should be entitled to excusal as of right from jury service. This would make them available for particular court cases, but with a right of withdrawal if necessary.
It is important to spell out why the principle of trial by jury is fundamental to the operation of English criminal law. Depriving a person of their liberty, or in former centuries depriving them of their life, raises the deepest issue of what it means to be a person in society, and under what terms the conditions of social existence (or even existence at all) may be abrogated. Theologically the criminal law is both a sanction provided by human society against the dissolution of this society, and an indication of what is the good for that society. In this indirect sense the criminal law may be seen as part of God's provision for civil order. However such a sanction can only be carried out by those who represent the consensus of society. Juries, who are selected at random from the local community, have for centuries been seen as expressing that consensus. If this principle is abrogated, it raises the question of how the execution of the criminal law expresses the consensus of society. It is important that this principle is firmly stated early on in our submission, for it will determine the rest of the content of our response.
4.
Juries and the representation of ethnic minorities (Pages 156-159)
In recent years the issue of how the law affects those from minority ethnic groups has rightly received more attention. The MacPherson report on the death of Stephen
Lawrence is the most significant report, but the Halliday report last year on Sentencing also addressed this issue. It is therefore commendable that Auld considers the question of minority ethnic representation on juries. The 1992 study of juries carried out for the
Runciman Royal Commission did not believe that juries were unrepresentative of minority ethnic groups. However later research has questioned this finding, and there remains the problem that one cannot be a juror if one is not registered to vote. Home
Office research in 1999 ( Research Findings No. 102) indicated that 24% of black, 15% of Asian and 24% of other ethnic minorities were not registered. It is clearly the case therefore that there is a smaller pool of people eligible to serve as jurors from minority ethnic communities.
The Royal Commission considered that in exceptional cases with a racial dimension the judge should be able to direct that the jury should have up to three people from minority ethnic groups. This was a suggestion made to answer the belief of defendants and/or victims that they would not get a fair trial from an all white jury. At the same time the judge should be able to direct that one or more of the three minority ethnic jurors should be drawn from the same ethnic minority as the victim or defendant. However the
Conservative Government in the 1990s rejected the proposal.
There is therefore a strong precedent for Auld returning to this issue, with the support of the Law Society, Commission for Racial Equality and the Bar Council Race Relations
Committee. All these latter bodies supported the Royal Commission’s recommendations and since they have not been implemented, have suggested holding particular cases of ethnic sensitivities in an area where the ethnic mix would ensure a greater chance of creating minority ethnic representation.
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We welcome Auld's support for the arguments of the Royal Commission and, specifically, the suggestion that where race is considered by the court to be a relevant factor the jury should include up to three people from a minority ethnic group. We are aware that some have criticised Auld for breaching the fundamental principle of random selection of juries. However we agree with Auld that it is worth remembering that for five centuries in England until 1870 Jews, Germans and other minorities could be tried by a special jury called ‘de mediate linguae’. This was a jury, of which half were foreigners. It was a right abolished in 1870, since it was felt that trials were unbiased whatever the ethnic origin of the defendant or victim. Auld recognises the reality of racial prejudice. However he does not welcome one response to this issue. This would be the United States' examination of potential jurors, which Auld feels would both delay trials and not win public support in England. So Auld prefers to revert back to the pre
1870 system, at least in part, by allowing for some minority ethnic representation on juries where there is an issue of ethnic sensitivity, or race.
We take seriously another criticism, made by Professor Zander, that this approach would divide the jury and threaten the integrity of the jury as a whole. He writes, ‘they would be seen by the other jurors as in some sense different and a part, which would thereby create divisions in the jury room’. Whilst we acknowledge that this is a risk, the reality of institutional racism (not a phrase used by Auld) is such that, on balance, we think it right to support Auld's recommendation on this point.
5 Juries and perverse verdicts (Pages 173-176)
We come to the question of perverse verdicts. Auld suggests that the law should be changed so that juries have no right to acquit defendants in defiance of the law. As so often, Auld puts his argument by marshalling the opposing case as strongly as he can.
Lord Devlin argued that the ability of juries to ignore their duty to return a verdict in accordance with the evidence was an insurance that the criminal law could never stray far from what the ‘ordinary man’ regarded as fair and just. This has of course been a feature of several controversial trials in recent years. Environmental damage, attacks on weapons in military bases or deliberate trespass have all resulted in acquittals, despite the evidence that they should be convicted according to the law. Several cases have involved both Christians, and members of the Church of England, although such defendants were always clear that they did not represent the official church position on environmental or military questions. Nevertheless, this is an area that will concern many Christians, and it is therefore of concern to the Board for Social Responsibility.
Auld argues that the actions of juries in acquitting is illogical (5-104), although he is prepared to accept that there is an emotional attachment to this feature of English law, even though he does not say by whom. It is seen by some as a ‘useful long-stop against oppression by the State and as an agent, on occasion, of law reform’. (Same paragraph).
Nevertheless illogicality is not the only charge, which Auld lays against this feature of jurors’ behaviour. He says that it is a ‘blatant affront to the legal process and the main purpose of the criminal justice system- the control of crime’, (5-105), and believes that
‘they are not there to substitute their view of the propriety of the law for that of
Parliament or its enforcement for that of its appointed Executive, still less on what may be irrational, secret and unchallengeable grounds’ (5-105). Auld also believes that
Article 6 of the European Convention of Human Rights may be violated by this behaviour. Article 6 concerns due process of law, demanding a fair trial before an independent and impartial tribunal. Auld says that perverse and publicly unreasoned verdicts of acquittal are vulnerable to that Article. A trial demands a reasoned verdict.
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Auld has two answers to this problem. First, he argues that juries must give reasoned verdicts. This argument will be considered in full later in our submission. Auld says that a judge should give factual questions to the jury, when summing up a case, and be able to require the jury to give public answers to these questions, and to argue how their verdict relates to these answers. Secondly, Auld at paragraph 5-107 says, ‘I recommend that the law should be declared, by statute if need be, that juries have no right to acquit defendants in defiance of the law or in disregard of the evidence, and that judges and advocates should conduct criminal cases accordingly.’
This view has aroused great controversy since the report was published. The academic study by T.A.Green Verdict According To Conscience 1200-1800 (University of
Chicago Press 1985) shows that for many centuries it was a refusal to send people to the death penalty which motivated the refusal to convict according to the evidence. It was also the case that government recognised this dissent. Examples include the refusal to convict people for stealing sheep or cattle when they were starving, which would have resulted in their execution. (See The Spectator campaign of 1831 after two men were hanged for such offences. Lord Brougham, the Home Office minister, denounced the campaign as an ‘insurrectionary movement’). The death penalty was imposed for the theft of goods to the value of £2.00. Juries persistently undervalued goods to prevent execution. It is noteworthy that there is historical proof of clerical magistrates wishing to sentence people to death for such crimes, but the committal of the case to a jury prevented this happening. Such events were a common part of the anti-clerical riots of
1832 and earlier decades.
Another reason for not convicting in spite of both evidence and the requirements of the law is that the law was felt to be politically biased .In 1670 William Penn and William
Meade were preaching in the City of London as members of what came to be known as the Society of Friends, or the Quakers. They were preaching on a Sunday afternoon, and were arrested for unlawful and tumultuous behaviour. The jury refused to convict them, even though such preaching was forbidden. When the judge held the jury without food or drink, and later fined them heavily, they obtained their release by a writ of habeas corpus. A plaque in the Old Bailey now commemorates the event. Such a perverse verdict upheld freedom both of speech and of religion.
The perverse acquittal of Clive Ponting on the Belgrano trial again was a protest against the Official Secrets Act, and led to a partial reform of the Act. More recent cases have included the refusal to convict Multiple Sclerosis sufferers for smoking cannabis to ease their pain, the acquittal of Lord Melchett and Greenpeace campaigners for damaging
G.M. crops, and the acquittal of the Trident Ploughshares movement defendants. In some cases lawyers argued that international law overrode English law, which the judge allowed. It is therefore the case that sometimes judges will also express views, which could be called perverse. Alternatively the provisions of the Criminal Damage Act have been used as a lawful excuse against G.M. crops.
The Runciman Royal Commission on Criminal Justice , which reported a decade ago, took an opposite view to Auld. Its members said that they were aware of the practice of perverse verdicts, despite the jury having a solemn duty to return a verdict in accordance with the evidence. They did not know why this happened, and since there was no research allowed on the behaviour of juries, they could not know the reasons for this behaviour with any confidence. However, they went on, ‘It is plausible to suppose that it is because the jury has taken an unfavourable view of the prosecution or of the law under which it is brought or the likely penalty. We do not think, however, that these cases justify the introduction of a right of appeal against acquittal’ (page 177, para. 5).
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There is no right of appeal against an acquittal, and indeed the right of appeal against conviction was granted only in 1907. We view with considerable unease the recommendation made by Auld on perverse verdicts, since as argued above the religious freedom, as well as the freedom of speech of English people is safeguarded by the exclusive right of the jury to determine an accused’s innocence or guilt. We urge the government to reject this recommendation of the Auld report. We prefer the judgement of the Royal Commission to that of Auld. At the same time, while we clearly do not want to advocate unlawful behaviour, we believe that the freedom of conscience which Christians, and others, have upheld over many centuries should not be put in jeopardy. If the jury convicts those who act on their beliefs, Christians cannot claim exemption from the law and must suffer the consequences. However if a jury is willing to acquit them, because of the moral weight of their case in spite of the provision of the law, then that judgement should be respected. As Lord Devlin said in a famous phrase,
‘(the jury) is more than an instrument of justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives’. We support this argument, and therefore reject the arguments on perverse verdicts put forward by Auld.
6. Defendant's option for trial by judge alone (Pages 177-181)
In the United States most jurisdictions allow defendants to waive jury trial with the agreement of the court and the prosecutor. In 1993 14% of all serious federal cases were tried without a jury, but the option is also used in state jurisdiction. Defendants who are charged with offences that attract particular opprobrium, such as sexual and brutal crimes, may prefer to face a judge than a jury. A judge may be considered more objective than a jury, and less likely to be affected by adverse publicity. Complex cases may also be hard for a jury to follow. In these cases Auld recommends (5-116) that
‘there is a strong case for the introduction of a system permitting defendants to opt for trial by judge alone’. There are different systems operating in the Commonwealth. In some, juries must try certain offences. Auld prefers to let the judge decide on a case by case basis, and rejects the idea that the prosecution must agree to the decision. Auld suggests that this change should apply to the Crown Court and the new District Court.
We would support the introduction of this change on an experimental basis, after which it should be reviewed. It should be tried in the Crown Court alone, but we suggest that it should be confined to certain types of offences.
7. Trial of cases on indictment without a jury (Pages 177-200)
No part of the Auld report has aroused more controversy than the recommendation that the proposals to do with ‘either-way’ cases, and cases involving young defendants, where Auld suggests that the court should decide whether or not there should be a jury trial. As is often the case with Auld’s recommendations, there has been intense debate on this topic in the past decade. Michael Howard considered the proposal when he was
Home Secretary, but the opposition (including that of the Labour Party) persuaded him to drop the idea. However the Labour Government then issued a consultation paper on the idea in 1998, which again produced strong opposition. Nevertheless a Bill was introduced into the Commons in 1999, abolishing the right to elect for jury trial in some cases. This Bill was defeated on 20 January 2000 by 222 –126 during the Lords
Committee stage, but a second Mode of Trial Bill was introduced in February 2000.
This was again defeated in the Lords, after a three line whip and a guillotine had ensured its passage in the Commons, on 28 September, 2000. The Government indicated that they would try again, but so far have not done so.
Auld recommends that in ‘either–way cases’, where a defendant can elect for jury trials, the court should decide, though defendants would have a right of appeal. This would
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remove the possibility of jury trials for a wide range of offences, including assault, drugs and theft. We express our concern at this limitation of the right to elect for jury trial in ‘either way cases’ and are not persuaded by Auld’s arguments.
8. Fraud and other complex cases (Pages 200- 213)
One of the features of serious criminal cases in the last two decades has been the growing number of fraud cases, which are both lengthy and very complex. A high number of these cases have either eventually been abandoned or the jury has acquitted the defendants, when the evidence appeared to point the other way. Given our support for the right of juries to return verdicts, which may seem perverse, this cannot be objected to. However there is an issue as to how such cases are to be tried in the future.
There are three problems. First, there is the sheer length of such trials, which can burden the lives of jurors. Second, because people seek exemption from jury service because of the likely length of the trial, it is very difficult to find juries that are representative of society. Thirdly, there is the complexity of the cases, and their specialist nature. The Bar Council opposed the end of jury trials for fraud, but acknowledged in its submission to the Review that it was difficult to find juries who are representative. Few people have sufficient time to spare, for cases, which may last a year or more. The Serious Fraud Office also submitted a paper to the review, and commented that the health of jurors in lengthy trials is a problem. This can lead to cases being delayed or even stopped.
Auld therefore recommends that a jury is dispensed with, and the nominated trial judge should direct the trial on their own, or with nominated lay experts. Our general preference is to preserve trial by jury, wherever possible. We note that the Bar Council still preferred trial by jury for fraud cases, in spite of the problems, which it posed. The difficulty for us is that this is an issue, in which technical matters and issues of principle are closely intertwined. The technical question is whether it is possible to explain to a jury selected at random the intricacies of international finance in a way that will enable them to distinguish between legal and illegal activity. The issue of principle is whether a serious criminal case should be treated differently from other serious cases. Other commentators on Auld have been impressed by the difficulty of finding representative juries.
We acknowledge the care and attention, with which Auld has considered this difficult matter, and we are willing to recognise the merits of both approaches.
9. Trial of young defendants in serious cases (Pages 214-216)
Auld suggests that cases involving young defendants that now go to the Crown Court should no longer do so. In 1999 4,718 defendants under the age of 18 were sent for trial to the Crown Court and another 851 were committed for sentence. Young people under
18 have no right of election for jury trial and must be tried summarily unless either the offence is very grave or they are being tried with a person over 18 and it is felt that in the interest of justice they must be tried together. For these two reasons young people are sent to the Crown Court. There have been many concerns raised since the Bulger case, especially the judgement of the ECHR, that the trial was intimidating, formal and public. Following the Strasbourg judgement new practice directives have been issued, but even so concern has remained. As Auld points out, Lord Warner, the Chairman of the Youth Justice Board, has supported the use of a new tribunal in the more serious juvenile cases. There are two considerations, which Auld says are of great importance.
The first is that judges and magistrates in youth courts receive special training, and judges in Crown Court cases involving children have also been specially selected and
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trained for such work. But juries in such Crown Court cases have no experience at all of youth crime. Secondly Crown Court cases are still very slow. The Government is aiming to bring down the time from arrest to sentence to less than 65 days and this is generally achieved in Youth Courts. The time in the Crown Court, where 40% of all youth cases involve persistent young offenders (P.Y.O.s) the average time from arrest to sentence is 197 days. This is not just a matter of saving money, but of helping the young person realise what they have done. Very lengthy court procedures, especially if they are very formal, can only hinder the coming to terms by a young person with what they have done.
Auld recommends that a Youth Court consisting of a senior judge (depending on the severity of the crime) sitting with at least two experienced youth panel magistrates should in future try serious crimes. He also recommends that the usual degree of privacy in Youth Courts should apply, even despite the high degree of publicity, not to say notoriety, which some youth trials will attract.
We support Auld’s recommendation, which seems sensible and compassionate.
However we have two reservations. First, we wonder whether those aged 17 should retain the possibility of trial by jury as they have at the moment. Young people aged 17 have no right to elect for jury trial in the Crown Court but may ask the court to consider this request. Secondly, we realise that some murder trials will attract a demand that they should be reported. This is a very difficult decision to make. The public interest in
Bulger, and some other cases, was intense. Where possible, we support Auld in recommending that privacy and no reporting of the trial should be the norm. However there may be times when the court has to take account of the public mood and allow reporting. This should still be balanced against the interests of the youth defendants, who are not adults.
The good of the public in knowing must not be confused with prurience or curiosity. In an earlier part of this submission, we argued that the principle of jury service was that it represented the consensus of society in the execution of the criminal law. Equally we wish to argue that this consensus is maintained by the public being aware of crimes which are committed against the public wellbeing, and that it is therefore good for the public that it knows. Secrecy is corrosive of the public good. At the same time we are aware of both the sensationalism of much journalism, and of the harm done to juveniles in the past by invasive reporting. In particular some of the press reporting of the Bulger case fell far short of the standards needed in such a sensitive matter, and we deplore such lapses of journalistic practice. This harm is very severe, for treating juveniles as adults when they are not mature enough to accept this can radically affect their development in harmful ways. Nevertheless, we believe that trials of juveniles held in private are bound to raise public disquiet about, and to weaken confidence in, the criminal justice system. This has been a feature of the last few decades, and can only damage the respect, which the law commands in society. In general, therefore, we support Auld on this issue.
10.
A middle tier of jurisdiction (Pages 274-281)
Another suggestion by Auld is the creation of a middle tier of jurisdiction to be called the District Division. It is controversial because Auld proposes this new tier as a means by which the number of trials going before a jury can be further reduced. At the moment trial can only be in the Crown Court, with a judge and jury, or a magistrates’ court, with either a bench of lay magistrates or a District Judge (formerly called a stipendiary magistrate). Indictable offences in 1999 were 33,000 and made up 1% of the total of all cases. These are always heard in the Crown Court, and Auld has no
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problem with this continuing. Summary–offence cases make up 73% of the total or
1,400,000 cases. The problem is the remaining 26%, which are ‘either-way’. At present there are 480.000 such cases a year (1999 figures). At present 27% of such cases never come to trial, and 2% were found not guilty by the magistrates’ court. 55% were convicted and sentenced by the magistrates’ court, and 4% were convicted by the magistrates’court but sent for sentence to the Crown Court. 11% were sent for trial in the Crown Court, and of this 11% it is the case that only 30% were because the defendant had elected for jury trial. That represents 4% of all defendants charged with an ‘either- way’ offence.
As already noted above, Auld wishes to deny people the right to elect for jury trials in the Crown Court, but to leave the decision to the court. He also wishes to refer such cases to a new District Division of the unified court. He also wishes to move some cases from the magistrates’court to the new District Court. These are ones that raise jury issues, and are also legally or factually complex. Auld suggests that this court has no jury but has a District Judge or recorder sitting with two lay magistrates. He says
‘the main rationale for mixed tribunals is that they combine the advantages of the legal knowledge and experience of the professional judge with community representation in the form of lay magistrates’ (7- 23). However it is clear that Auld intends the majority of the 11% going to the Crown Court as ‘either way’ offences would no longer do so. It has been pointed out by his critics that on page 522 (11-24) in the Report Auld argues that ‘trials of substance, which under my proposals would in future be the sole or main candidates for trial by judge or jury’. Equally he argues ‘There should be a third tier for the middle range of cases that do not warrant the cumbersome and expensive factfinding exercise of trial by judge and jury, but which are sufficiently serious or difficult, or their outcome is of such consequence to the public or defendant to merit a combination of professional and lay judges, but working together in a simpler way’ (7-
27). This would consider cases likely to attract a maximum of two years imprisonment.
The problem is why is it seen as necessary to reduce the number of trials in the Crown
Court? There may, clearly, be cases, that are complex and which the magistrates’court now handles, but these are usually passed to the District Judge (formerly the stipendiary magistrate). Auld’s proposals seem to rest on a dislike of jury trials, and some suspicion of District Judges. Neither of these seems warranted, and we reject these recommendations.
11.
Decriminalisation and alternatives to conventional trial (Pages 367-394)
Auld is aware that many offences are, in the words of the Report, ‘concerned with conduct that is on the borderline of criminality and /or is of relatively slight culpability’
(9-2). It is also the case, argues Auld, that ‘society’s view of what justifies criminal proceedings changes from time to time’ (9-2). There is therefore a dilemma. It may be that the potential of criminal proceedings is the only way to enforce a fairly trivial matter. However ‘it is wrong to stigmatise conduct as criminal simply as a means of enforcing a public duty when an average right-thinking person would not so regard it’
(9-2).
Auld considers a number of issues under this heading. These include Television
Licenses, Vehicle Excise Duty, and minor road traffic offences. The Report then moves on to the issue of Specialist Courts for drugs and domestic violence. Next there is the issue of Caution plus, Restorative Justice and finally the enforcement of civil debts.
This is a broad agenda, which is gathered together under the heading of ‘Alternatives to
Conventional Trial’.
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We support the recommendation in (9-13) that the use of a television without a licence should be dealt with at the first offence by a fixed penalty, subject to the defendant’s right to go to court to dispute guilt. There should be a discount for prompt payment of the penalty and purchase of a licence. However we would point out that many cases of non-payment are related to poverty, and that the administrative arrangements which are proposed are an attempt to solve an underlying social problem. We also note the observation in Auld that magistrates’ courts can vary enormously in the level of fines, which they impose, from £30 to £300. This is very unsatisfactory.
On Vehicle Excise Duty, Auld recommends no change in the present system, whereby a high number of prosecutions which result in pleas of guilty have led the DVLA to operate an out of court settlement scheme. This seems a sensible arrangement.
Auld also comments on the proposal to set up drug courts, as in the United States, which the Review visited.in Florida and in New York City. Auld does not rule out such courts in England, but prefers to see the Drug Testing and Treatment Orders (DTTOs) established first. The Crime and Disorder Act1998 introduced DTTOs. On the whole they have worked well, although magistrates have found it harder to obtain consistency in hearing reviews of progress by the sentencing bench.. We feel that Auld could be more generous in considering the case for drug courts in England, and urge an experimental period in several cities where such a court could be established, and the results monitored.
Domestic Violence is one area where a system of restorative justice could be attempted, and Auld comments favourably on the Canadian project, which he visited. We greatly welcome this approach, and the further remarks, which Auld makes on restorative justice. We urge the greatest attention to pages 388-391 on the extension of this philosophy to the courts.
12.
Hearsay evidence (Pages 556-563)
Auld recommends that hearsay evidence should be rendered in principle admissible, with simplified and less complex rules of admissibility. This is not a recommendation, which we support. It is certainly the case that the present rules need reform, and the
Runciman Royal Commission wanted a change. Nevertheless the recent report of the
Law Commission did not favour it, in principle, even though they were prepared to allow many exceptions. We do not feel that we have the expertise to suggest what those exceptions might be, but we do feel that in principle such evidence is to be given less weight.
13. Past convictions (Pages 563-568)
Auld follows its general approach by suggesting that evidence of past convictions should be made available to the jury. At the moment such evidence may only be used to disprove the claim by the defendant that they are of good character, or to negate an attack by the defendant's lawyers on the character of a prosecution witness. Similar fact evidence is also sometimes allowed, at the discretion of the judge, if it is felt relevant that the defendant has a series of past convictions for similar offences.
Such a recommendation by Auld is deeply controversial. The Oxford Centre for Socio-
Legal Studies has said in its 1995 research study that juries are prejudiced by such disclosures. It can be helpful to juries to know that there are striking similarities between this case and another, and this is clearly something which should be considered by the judge as admissible evidence under the 'similar fact' rules. However it
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is also the case, as many prominent lawyers have argued against Auld, that there is a danger that in this particular case the defendant is innocent but is nevertheless convicted by the jury, because the jury feels that the evidence fits a pattern of behaviour. This is not in fact conviction according to the full standards of proof required in a criminal case, and that is why we disagree with Auld. We feel that this recommendation is unwise, and urge its rejection.
14. Double jeopardy (pages 627-636)
Auld follows the MacPherson Report in allowing a role for the prosecution to appeal against acquittal and for the possibility of a new trial if further evidence is compelling.
This has been one of the most contentious arguments in recent years. The Law
Commission in its March 2001 report Double Jeopardy and Prosecution Appeals said that the Court of Appeal should be able to set aside an acquittal in the case of murder only, in cases where there is compelling new evidence. Auld wishes to extend the right to reopen a trial in the case of grave offences punishable with long periods of imprisonment. Nevertheless there have been many critics of Auld's suggestion.
Baroness Helena Kennedy rejected the proposal because the publicity could not ensure a fair trial. She wrote in The Guardian on 17 July 2001 ‘A second jury might assume that, since our cleverest judges found the new evidence persuasive, their role is simply to endorse a conviction. The risks of injustice are enormous’.
Equally the abolition of the rule would run the risk that the police might become less thorough in their work, and any mistakes would not matter, since the law would allow a second chance for poor criminal investigations. As several critics have said, the
Lawrence case was not just about racism, it was also about very poor police work, and a mistaken private prosecution. What is important is that the standard of police work should be raised from the level revealed by the MacPherson Inquiry. It is encouraging that this appears to be happening in police work, especially in the Metropolitan Police
Service. We applaud in particular the work of the Racial and Violent Crime Taskforce.
We feel on balance that it is wrong to allow a retrial in criminal cases, although we recognise the arguments on both sides. The double jeopardy rule exists as a protection of our liberty, since there must be finality on the power of the State to try its citizens for their crimes, even on the basis of new evidence. Otherwise there could be repeated retrials.
+ THOMAS SOUTHWARK
Chair, Board for Social Responsibility
30 January 2002
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