BA, Lecturer in Law, University of Leeds, Leeds, LS2 9JT.
Email: B.Fitzpatrick@leeds.ac.uk.

*I am grateful to my colleague Nick Taylor, to the editor of the Web Journal of Current Legal Issues, and to the anonymous referee, for their helpful comments on an earlier draft of this piece.

Copyright © 2002 Ben Fitzpatrick.
First Published in Web Journal of Current Legal Issues.

The Government has recently published another Criminal Justice Bill. Much of the content of this Bill draws on the White Paper ‘Justice for All’, published in July 2002. This article seeks to examine some of the key proposals put forward in the White Paper, together with the principles that underlie them, and to subject them to critical scrutiny. It is suggested that the White Paper, while indeed far-reaching, is arguably not the radical work of policy suggested by its marketing. Rather, this article suggests that the White Paper is the latest in a line of official publications which are driven by bureaucratic imperatives as much as by considerations of ‘justice’. The article also suggests that the White Paper, through its professed aim - 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 - risks reinforcing the problematic argument that the best way of integrating a victim perspective in criminal justice is through the erosion of defendants’ due process rights.

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Contents

Introduction
Key proposals

Double Jeopardy
Juries
Using all Relevant Evidence

• Use of a defendant’s previous convictions
• Hearsay

Efficiency and joined up criminal justice
Conclusions and context

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At the time of writing, further significant reform to the criminal justice system has just been announced in the Queen’s Speech. Much of the content of the relevant Criminal Justice Bill, (published at http://www.publications.parliament.uk/pa/cm200203/cmbills/008/2003008.htm) draws on the White Paper, ‘Justice for All’ (Home Office, Lord Chancellor’s Department and Office of the Attorney-General 2002, hereafter in references, ‘White Paper’), a review of criminal justice which suggests that the system needs to be reconfigured in a way which benefits victims and which enables more offenders to be brought to justice. Predictably, the Paper, at the time of its publication, was trumpeted as a radical recasting of the criminal process, a theme reiterated through the Queen’s Speech. The Home Secretary, David Blunkett, introduced the Paper to the House of Commons as an ‘end-to-end reform’ (Hansard, 17 July 2002, col. 287); he went on to suggest that ‘[t]he proposals that we have set out are far-reaching, radical and require a culture change.’ (Hansard, 17 July 2002, col. 289). To be fair, the Paper is ambitious and broad in its scope, though, as will be proposed, it is perhaps not as radical as has been suggested. It is the purpose of this article to discuss a number of the key proposals in the White Paper; to question both its premise and its marketing; and to draw some conclusions which consider the context from which the White Paper emerges. What follows does not purport to be a comprehensive resume of all the ground covered by the Paper.

Although its treatment in the Paper is relatively brief (White Paper, paras. 4.63-4.66), arguably the most notable proposal, and certainly one which has already stimulated considerable debate, concerns the relaxation of the Double Jeopardy principle. In fairness, the English literature on double jeopardy is relatively sparse. (For recent treatments, see James, Taylor, and Walker (2000), and Roberts (2002)). The suggestion in the White Paper is that in situations of designated serious crimes,⁽¹⁾ where a defendant has been acquitted, the emergence of compelling new evidence may permit the bringing of a second prosecution. This is a more far-reaching proposal than that of the Law Commission (Law Com No 267), which recommended relaxation in murder cases only. The White Paper proposal bears a closer resemblance in this respect to that of the Home Affairs Select Committee (1999-2000), who suggested relaxation of the principle in respect of offences for which a life sentence was available on conviction. The White Paper proposal does indeed represent a significant departure from current principle, and ought to be approached with caution. The Paper suggests that it is not likely that the relaxed principle will be invoked frequently, but that it is nonsensical, and damaging to the credibility of the criminal justice system, that defendants against whom fresh compelling evidence arises, or indeed who subsequently confess to the commission of a crime, should escape justice merely on the basis of a previous acquittal. There is indeed a degree of force in that suggestion, particularly with regard to the development of forensic techniques which enable the gathering and analysis of evidence in ways that would not have been possible a number of years ago. Clearly, a principal context for this aspect of the proposals is the development of DNA technology, and of Cold Case Review techniques. Indeed, it seems that statutory reform and interpretation is developing in a congruent direction. The increased utility of DNA evidence has been accompanied by reform and interpretation of the relevant provisions of the Police and Criminal Evidence Act 1984, in a manner such as to enhance powers of law enforcement to retain DNA samples (see PACE, s. 64, as amended by Criminal Justice and Police Act 2001, s. 82; Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91; R (on the application of S) v Chief Constable of South Yorkshire [2002] EWCA Civ 1275). Nonetheless, what is proposed in the White Paper remains a considerable development and, in such circumstances, one would hope that safeguards would be put in place to ensure that change remained proportionate. It is notable that, first, the evidence which it is sought to adduce at the second trial could not reasonably have been adduced at the first trial. This is supposedly a check on frivolous and speculative repeat prosecutions. To be effective however, there will need to be a robust interpretation of what could ‘reasonably’ have been adduced. As lawyers are aware, reasonableness is a notoriously elusive concept. It is to be hoped that the reasonableness hurdle does not become illusory. It should also be noted that the permission of both the DPP and the Court of Appeal will be required before a second prosecution can be brought. Such a requirement seems sensible in the light of the novelty of the state of affairs being proposed. Once again, it is to be hoped that this hurdle is indeed real, and that the endorsement of repeat prosecutions does not become a mere matter of routine. A significant concern remains. What are the jury in the second trial to make of the situation? Is there not a risk that they will be illegitimately prejudiced in favour of a conviction? The second prosecution can only, after all, be brought when there is ‘compelling’ new evidence. Indeed, in a House of Commons debate which was not especially antagonistic, the White Paper having commanded general cross-party support, it was this question which elicited the least developed response from the Home Secretary.⁽²⁾ He suggested that ‘[t]here is a genuine question about what assumptions may be made about the Appeal Court deciding to go ahead and about the information in relation to the case that is already in the public arena. There are genuine problems, but I think that we can overcome them ...’ (Hansard 17 July 2002, col. 298). The regrettable logic of the double jeopardy proposals would be to permit the appellate court simply to substitute a conviction for the earlier acquittal. On the hopefully uncontroversial assumption that this is unacceptable, it is crucial that second trials in double jeopardy cases are more than just a formality. However, there is also a fairly strong political momentum behind the relaxation of the rule, which may also explain the proposal to make the relaxation retrospective. The recent impetus for reform can be traced back to the MacPherson Report (1999) into the murder of Stephen Lawrence.⁽³⁾ Other high profile cases have suggested that in some cases, strongly suspected offenders are slipping through the net (Casciani 2002). Nonetheless, the double jeopardy principle is not a mere technicality which prevents the bringing to justice of unmeritorious defendants. Rather, it serves at least two reasonably definable objectives. First, it performs a declaratory function, informing citizens of the cut-off point, beyond which they can be sure that the criminal process will no longer be levied against them in respect of the relevant alleged offence. ⁽⁴⁾ Secondly, it is a significant constitutional safeguard against the abuse of state power and the illegitimate pursuit of suspects.⁽⁵⁾ It will be recalled that the double jeopardy principle is sought to be relaxed in the context only of designated serious offences. There is an uncomfortable tension here. While there is an unquestionable public interest in having serious offenders brought to justice, it might also be argued that the generality of those accused of serious crimes are those who most need protection against excessive attention from the State. The public interest in having offenders brought to justice is perhaps best served by their underlying, though less attention-grabbing, interest, in having serious offences investigated appropriately. It is to be hoped that those accused of serious crimes do not become victims of a reform which makes a strident political point, at the potential expense of principle.⁽⁶⁾

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It is also likely that the debate stimulated by the White Paper will address the continuing demise of jury trial. It is certainly the case that previous attempts at reducing the availability of jury trial, some fairly recent, have foundered.⁽⁷⁾ It is also true that the mere suggestion that the role of jury trial should be diminished makes commentators twitchy, and evokes impassioned public debate. Nonetheless, there is an argument that, in some respects, the suggestions on this issue in the White Paper are not especially radical. The passion that surrounds debate on juries may well be predicated on a false assumption that the jury is somehow the bedrock of criminal justice (Darbyshire 1991). In terms of the allocation of business, it is trite to note that this is not the case – depending on the statistics to which one subscribes, it might be contended that the best part of 98% of cases never get anywhere near a jury. Furthermore, the invocation of fundamental constitutional principles in defence of the jury is also perhaps rather spurious. A simple comparison with other jurisdictions should be enough to inform us that there are other ways of conducting criminal trials (though it is of course acknowledged that the absence of lay factfinders elsewhere is often accompanied by other systemic differences which do render simple comparison problematic). Indeed, it might be suggested that our attachment to juries is a product of historical romanticism, and of idyllic notions of rights. The Magna Carta jury was no egalitarian statement of the right to be tried by one’s peers. Rather, it was a device to ensure that members of the nobility could not be tried by those ‘beneath’ them. While clause 39 of Magna Carta refers to judgment by one’s ‘peers’, it seems that ‘peers’ is being used in the sense of ‘social equals’, rather than as a reference to the population at large. One might compare the approach of Blackstone (1765), suggesting that a ‘right’ to jury trial was guaranteed by Magna Carta, with the prevailing view of Maitland (1908, p. 169) who states, ‘the barons want a court of their equals - they are to be judged by barons’.

It should also be noted that the right to elect jury trial in an either way case will not be affected by the proposals (White Paper, para. 4.22). However, it is worth remarking that while this is a formal retention of the right to elect, other systemic factors, such as legal advice to defendants, may well affect the manner in which this right is exercised. In any event, the decline of the jury, which the White Paper suggests will take place by the expansion of magistrates’ jurisdiction, should be regretted for a number of reasons.

Fewer juries means less public participation in criminal justice. This is not only a disappointment in itself, but it also cuts against one of the more laudable themes of the Paper – namely the re-engagement of the public (White Paper, chapter 7). It also undoes some of the good work that could be done by the proposals to reduce the possibilities of opting out of jury service and to enhance jury representativeness. This part of the White Paper proceeds on the basis that ‘members of the community have a responsibility and a duty to carry out jury service if they possibly can’ (White Paper, para. 7.25). There are a number of aspects to the proposals, some of which are operational already. First it is hoped to streamline the jury summoning process through the establishment of a Central Jury Summoning Bureau, which will adopt a consistent approach to excusals and will operate a norm of deferral to a later date rather than excusal from jury service where appropriate. Secondly juror motivation and satisfaction is to be enhanced through better provision of information and more effective case management to ensure that jurors’ time is spent optimally. It should be noted that while these are measures which are designed in part, to increase the pool of available jurors, it is not proposed to depart from the Electoral Register as the basis for jury eligibility; nor does the White Paper adopt recommendation 25 of the Auld Review (2001), that in cases where race is a significant issue, the judge should have the power to arrange for a multi-ethnic jury to hear the case (White Paper, paras. 7.27-7.30).

A further cause to regret the demise of the jury would be the concomitant increase in magistrates’ sentencing powers, which has the potential to increase the use, at a time of well documented overcrowding, of short jail terms, which, on account of their brevity, can serve little useful rehabilitative function. In this context, the innovative approach to sentencing outlined in the Paper might be welcomed. The Paper suggests that custody should be focused on dangerous, serious and seriously persistent offenders and those who consistently breach community sentences (White Paper, para. 5.6). It also outlines a number of forms of sentence with a custodial element, but which utilise that element in non-traditional ways, through, for example, non-continuous application, or through combination with other forms of disposal. To digress briefly, the proposed new forms of sentencing are, in summary, reported as follows: (i) Customised Community Sentence – all the sentence served in the community; all existing community sentences available together, allowing sentencers to fit the restrictions and rehabilitation to the offender; (ii) Custody Plus – a prison sentence of up to 3 months, followed by a compulsory period of supervision in the community, within an overall sentence envelope of up to 12 months; (iii) Custody Minus – a prison sentence suspended for up to 2 years, whilst a programme in the community is undertaken; breach of the community programme will result in imprisonment; (iv) Intermittent Custody – a prison sentence would be served for example at weekends whilst the community programme is served through the week; (v) Prison Sentences of 12 months and over – half served in prison, half in the community; automatic release will be at the halfway point, with license conditions extending till the end of the community sentence period; (vi) Dangerous violent and sexual offenders – an indeterminate sentence triggered by violent and sexual offences and an assessment that the offender is dangerous (White Paper, para. 5.19).

However, there may well be difficulties in the implementation of these sentencing policies, and not merely on the basis of the vexing issues of principle which underpin penality. It seems that budgetary constraints are likely to delay the introduction of the interesting custody plus scheme (Travis and Dyer 2002).

There are other jury issues which ought to raise concern. First, the proposed power for a judge to discharge a jury if an attempt has been made to intimidate or influence them, or in cases where there is a serious risk that they will be subject to bribery or intimidation (White Paper, paras. 4.32-4.33) is ripe for abuse by the unscrupulous. It also suggests a lack of faith in retrials and in the tainted acquittal procedure under the Criminal Procedure and Investigations Act 1996, sections 54-57. Secondly, the resurrection of the suggestion that juries should not sit in serious and complex fraud trials, traceable back to the work of the Fraud Trials Committee (1986) (‘the Roskill Committee’) is problematic.⁽⁸⁾ The rationale is that juries are unable to grasp the complexity of the facts of such cases, and that, if convictions are to be secured and credibility maintained, then their involvement is inappropriate. The response to this might be that fraud trials are essentially about dishonesty, which is a concept with which jurors are entrusted in the context of theft and related offences. Furthermore, jurors are entrusted with complex scientific evidence in other areas, including cases involving the opaque mathematics of DNA match probabilities. It might of course be argued that jurors do not deal with such evidence especially well, perhaps overstating its significance - scientific evidence has, after all, an inauspicious role in a litany of high profile miscarriages of justice, including the cases of The Birmingham Six, The Guildford Four, and Stefan Kiszko (Stockdale and Walker 1993; Walker and Stockdale 1999). While the contention of the White Paper is that factual complexity has the potential to obscure the full extent of criminality in some cases, and consequently to create a de facto differentiation between ‘white collar’ and ‘blue collar’ crime (White Paper, para. 4.29), it might be suggested that the existence of alternative procedures for complex cases reinforces that distinction not merely de facto, but also as a matter of law.⁽⁹⁾

The answer is arguably not to get rid of juries in such cases, but to ensure that difficult issues are explained to them in a way which renders them clear, while not losing sight of the underlying complexities. It is at least arguable that this is a problem of advocacy and presentation rather than comprehension.

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The proposals regarding the use of a defendant’s previous convictions at trial received a degree of media attention which is arguably disproportionate to the extent to which the issue is developed in the White Paper (at paras. 4.54-4.59). What seems to be suggested is a dual test of relevance and sufficient probative value to outweigh the prejudicial effect of admitting a previous conviction as evidence. This may amount to a mere restatement of aspects of the present law, as contained in the rules regarding so-called similar fact evidence, which allow the prosecution to adduce such evidence in chief;⁽¹⁰⁾ and in the Criminal Evidence Act 1898, which allows the defendant to be cross-examined on certain of his or her previous convictions under defined circumstances.⁽¹¹⁾ Conversely, the context in which this discussion takes place, namely the desirability of getting all relevant evidence to factfinders, might suggest that the view of the Government is that this is not happening at present. The assimilation into a single statute of the various principles developed by Parliament and the courts regarding the admissibility of previous misconduct should be welcomed, on the grounds of clarity and accessibility. Indeed, that this is part of the rationale for reform in this area is acknowledged by the White Paper’s description (at para. 4.57) of the present law as a ‘haphazard collection of exclusionary rules’. However, it would, it is submitted, be misguided at this stage to consider expansion of the role of previous convictions as evidence, until a fuller exploration of the White Paper’s conception of ‘relevance’ has been undertaken, and until there is sound indication that lay factfinders can undertake their task without being unduly swayed by such evidence. Indeed, the research referred to by the Law Commission (Law Com No 273, paras. 6.37-6.42) suggests that this is a considerable risk.

The White Paper offers a relatively brief treatment of the rule against hearsay before suggesting its relaxation (White Paper, paras. 4.60-4.62). It is a fairly common view that the rule against hearsay can hinder the admission of potentially relevant evidence on what might be viewed as technical grounds (see eg, Kearley [1992] 2 AC 228; Percy Smith [1976] Crim LR 511). Such a state of affairs can impact adversely on both the prosecution (Kearley [1992] 2 AC 228) and the defence (see eg, Sparks v R [1964] AC 964; Blastland [1986] AC 41). It is also arguably true that some of the original rationales for the rule against hearsay, most particularly jury illiteracy, are no longer relevant. Having said that, other rationales to do with the reliability of hearsay evidence and the utility, in an adversarial system, of cross-examination of witnesses in person, remain. Indeed, the Law Commission (Law Com No 245, para. 3.37) have suggested that, ‘... the main, if not the sole, reason why hearsay is inferior to non-hearsay is that it is not tested by cross-examination’. Once again, it is not absolutely clear whether the proposals represent a significant departure from the current law. The situations instanced in the Paper where hearsay evidence in documentary form ought to be admitted, namely ‘if there is a good reason for the original maker not to be able to give the evidence personally (for example, through illness or death) or where records have been properly compiled by businesses’, correspond broadly to the existing law in sections 23 and 24 of the Criminal Justice Act 1988. However, the novelty appears to be in the suggestion that such evidence should automatically go in, rather than its admissibility being judged.⁽¹²⁾ Once again, there is something to be said for the collection of the disparate common law and statutory rules relating to hearsay into a single source. However, the analogy with civil law, where the hearsay rules have all but vanished, does not stand up to scrutiny, on the basis of what is respectively at stake in civil and criminal cases. Insofar as the rule against hearsay can operate to prevent the admissibility of evidence of potentially doubtful reliability, and of potentially prejudicial effect, a blanket presumption of admissibility, with the question of weight being left to the factfinder, is perhaps not appropriate.

A key priority which informs ‘Justice for All’ is the making of efficiency gains. It is suggested that through expedited pre-trial and trial procedures and through a more generalised ‘joined up criminal justice’, significant administrative advances will be made. To this extent, the Paper is the latest in a line of official publications which in more and less explicit terms, recognise efficiency almost as a primary, rather than merely instrumental or second order good. That is to say, efficiency is viewed as an end in itself, rather than as a means to a further end – eg, the facilitation of justice. The list of such publications arguably begins with the Royal Commission on Criminal Justice (1993). (See also Home Office 2001, and, generally, Belloni and Hodgson 2000). The potency of efficiency as a rhetorical device is that it carries with it the look of a self-evident desideratum (Redmayne 1997). However, efficiency gains have, in the recent past, gone hand in hand with the erosion of defendants’ rights – one recalls the Royal Commission on Criminal Justice (1993, p. i) and its ‘having regard to the efficient use of resources’ - which, in spite of its due process origins,⁽¹³⁾ fed into a body of highly authoritarian criminal justice reform including the erosion of the right to silence,⁽¹⁴⁾ and the introduction of expanded defence duties of disclosure.⁽¹⁵⁾ It is clear that in this instance, the Government is not perturbed by the potential reduction in protection for defendants. There are, in political terms, other priorities against which this has been traded off. It is one sense rather disappointing to think that after the best part of a decade of reconfiguring the system to the detriment of suspects, the official position is that they are still illegitimately advantaged.⁽¹⁶⁾ In this context, the further expansion of the defence duties of disclosure posited in the White Paper is a matter of particular concern (White Paper, paras. 3.46-3.57). It is proposed that defendants will have to disclose unused expert witness reports and details of all witnesses to be called, in order that adverse comment may be made on surprise witnesses. Such a proposal might be viewed as heavy-handed,⁽¹⁷⁾ as a further blurring of the boundaries between adversarialism and inquisitorialism,⁽¹⁸⁾ and finally, as a touch premature, given that the full human rights implications of the disclosure regime under the Criminal Procedure and Investigations Act 1996, and the associated common law, have yet to be explored. Similarly, the predictable pillorying of defence lawyers as criminal justice obstructionists is a matter of particular concern.⁽¹⁹⁾ The tone in which this aspect of the debate has been conducted is not especially constructive. Defence lawyers are the perennial whipping-boys of criminal justice. Their repeated denigration does little to foster a climate conducive to principled debate and obscures the individual, institutional and systemic deficiencies elsewhere in the process.

The notion of ‘joined up criminal justice’, in a more general sense, is less controversial, though not wholly unproblematic. Three instances of such strategy and practice will be considered here. First, the White Paper (at paras. 3.25-3.28) endorses the experiments in police and CPS co-location and the concomitant cost-savings that such practices produce. It might be argued that more could be made of the potentially contentious aspects of such co-location and the need to maintain appropriate constitutional, strategic and operational independence among various criminal justice actors. Secondly, the Paper proposes the unification of trial court administration under a single agency (White Paper, paras. 9.14-9.20). This would spell the end for the current roles of the Court Service and Magistrates’ Courts Committees. For the latter particularly, this may be a matter of considerable controversy,⁽²⁰⁾ although there is a sense in which this is a predictable change, given the reconfiguration of Magistrates’ Courts Committees so as to be coterminous with Crown Prosecution Service and Police areas. It is proposed to integrate and develop the management framework by setting up forty two local Criminal Justice Boards, reporting to a new National Criminal Justice Board. The debate as to the appropriate respective roles of central and local administration in criminal justice will no doubt continue (Fitzpatrick, Seago, Walker and Wall 2000; 2001). The third instance of joined up criminal justice which will be referred to here is the proposal to increase the systematic use of information technology in criminal justice. The suggestions vary from the mundane – the need to enable criminal justice professionals to communicate electronically in a secure environment; a recognition of the utility of information technology in case management - it is proposed that by 2003 secure e-mail will be available across the criminal justice system, and that by 2005 all criminal justice organisations will be able to exchange case file information electronically (White Paper, para. 9.48) - to the highly ambitious – it is proposed that by 2005 victims will begin to be able to track the progress of their case on line (Ibid.) It is beyond the scope of this article to develop this issue in detail. It ought to be remarked, however, that the history of information technology in public legal administration is not auspicious.⁽²¹⁾

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It might be wise to remain vigilant to the potential for slippage of criminal justice principles, which is perhaps exacerbated, if not by the White Paper itself, then by the terms in which debate on it is conducted. The Shadow Home Secretary, Oliver Letwin, suggested, in the House of Commons, that ‘The purpose of a criminal trial is twofold: to convict the guilty and to acquit the innocent. Each of those is as important as the other’ (Hansard, 17 July 2002, col. 290). That this highly problematic remark was able to pass wholly unchallenged should alert those concerned with criminal justice that the official consensus on its core values is not immutable. The Paper is (un)marked by a disconcerting lack of sustained engagement with the European Convention on Human Rights, which suggests that that document is not necessarily the framework of norms within which principled reform is countenanced. The tenor and aspirations of the Paper mean that this lack of engagement is not necessarily surprising. Human Rights are arguably less of a selling point when one is attempting to secure convictions⁽²²⁾ – interestingly, one rarely hears the maxim nowadays that it is better that ten guilty people go free than that one innocent is convicted.

There is a fascinating disjuncture at the heart of ‘Justice for All’. On the one hand, the document is marketed as a radical, balance-restriking, ‘end-to-end’ reform exercise. In fairness, its ambit is fairly comprehensive, running from investigative processes, through to post-conviction outcomes. Furthermore, in some instances, particularly with regard to forms of sentencing, it is genuinely progressive. On the other hand, in the context of some aspects of trial and pre-trial processes, the proposals often restate or develop incrementally procedures which are in operation already. To this extent, one might question the pretext of the Paper, namely that there is the need to rebalance the criminal justice system in favour of the victim and to bring more offenders to justice. Where changes are minimal, it might follow that the balance has already been restruck. The Paper is thus also an object lesson in how insidious criminal justice change can be – we have come quite a distance when reforms touted by the Government as radical are not so, for the reason that they may in fact barely be reforms at all. Much of the radical work, it is argued, was done a while ago. However, the manner in which the reforms are marketed is more than just a cosmetic problem. The aim of integrating a victim perspective into the criminal process is laudable, as is that of bringing more offenders to justice. However, it is the linkage of these two aims in the ‘single clear priority’ which runs the risk of perpetuating the myth that the most appropriate way to develop victim’s rights is through the erosion of those of defendants.⁽²³⁾ This is not to denigrate victims’ rights, which are quite rightly viewed as integral, but it is merely to suggest that enhancement of such rights is arguably a far more sophisticated proposition than the interference with fair trial protections. In this context, it is pleasing to see that the Paper does develop a more holistic view of the ability of victims to participate in, and to secure appropriate outcomes from, the criminal process (White Paper, chapter 2).

There is thus a sense in which the White Paper, as is so often the case in the field of criminal justice, is as much about political posturing, and the need to sound tough at a time of supposed disquiet about crime, as it is about principled reform. On such occasions, the implications for the law are liable to be subsumed within and obscured by political messages. For that very reason, radical or not, the White Paper and its legislative progeny ought to be subjected to the utmost scrutiny.

Ashworth, A, (1998) The Criminal Process: an Evaluative Study (2nd ed.), (Oxford: Oxford University Press)

Auld Review (2001) A Review of the Criminal Courts of England and Wales http://www.criminal-courts-review.org.uk/

Belloni, F, and Hodgson, J, (2000) Criminal Injustice: An Evaluation of the Criminal Justice Process in Britain (London: Macmillan)

Bennetto, J (2002) ‘Met chief: I will use new law in Lawrence case’ The Independent, 2 September, p. 1 http://news.independent.co.uk/uk/legal/story.jsp?story=329658

Blackstone, W (1765) Commentaries on the laws of England (Oxford: Clarendon Press)

Casciani, D, (2002) ‘A place for the victims’ http://news.bbc.co.uk/1/hi/uk/2132034.stm

Darbyshire, P, (1991) ‘The lamp that shows that freedom lives - is it worth the candle?’ Criminal Law Review 740

Fitzpatrick, B, (1999) ‘Disclosure: Principles, Processes and Politics’ in Walker, C, and Starmer, K (eds) Miscarriages of Justice: A Review of Justice in Error (London, Blackstone) p. 151

Fitzpatrick, B, Seago, P, Walker, C, and Wall, D (2000) ‘New Courts Management and the Professionalisation of Summary Justice in England and Wales’ 11 Criminal Law Forum 1

Fitzpatrick, B, Seago, P, Walker, C, and Wall, D (2001) ‘The Courts: New Court Management and Old Court Ideologies’ in Policy Networks in Criminal Justice (eds., Ryan, M, Savage, S, and Wall, D) (Basingstoke: Palgrave), p. 98

Fraud Trials Committee (1986) Report (London: HMSO)

Griffiths, C (2002) ‘Counsel for the defence’ The Observer, 21 July, p. 25

Hansard (2002) House of Commons Debates 17 July 2002 http://www.parliament.the-stationery-office.co.uk/pa/cm200102/cmhansrd/cm020717/debtext/20717-04.htm

Home Affairs Select Committee (1999-2000) The Double Jeopardy Rule (London: TSO) HC 190

Home Office (1989) Magistrates’ Courts: Report of a Scrutiny (London: HMSO)

Home Office (2001) Criminal Justice: The Way Ahead (London: TSO) CM 5074,

Home Office, Lord Chancellor’s Department and Office of the Attorney-General (referenced in text as ‘White Paper’) (2002) Justice for All (London: TSO) CM 5563

James, A, Taylor, N, and Walker, C, (2000) ‘The Reform of Double Jeopardy’ 5 Web Journal of Current Legal Issues. http://webjcli.ncl.ac.uk/2000/issue5/james5.html

Law Commission No 245 (1997) Evidence in criminal proceedings: Hearsay and related topics (London: TSO) Cm 3670

Law Commission No 267 (2001a), Double jeopardy and prosecution appeals, (London: TSO) Cm 5048

Law Commission No 273 (2001b) Evidence of bad character in criminal proceedings, (London: TSO) Cm 5257


Leng, R, (1995) ‘Losing Sight of the Defendant: The Government’s Proposals on Pre-Trial Disclosure’ Criminal Law Review 704

MacPherson Report (1999) The Stephen Lawrence Inquiry - Report of an Inquiry by Sir William Macpherson of Cluny (London: HMSO) Cm 4262

Maitland, F (1908) Constitutional History of England (Cambridge: Cambridge University Press)

Nobles, R and Schiff, D, (2000) Understanding miscarriages of justice: law, the media, and the inevitability of crisis (Oxford: Oxford University Press)

Redmayne, M., (1997) ‘Process Gains and Process Values: The Criminal Procedure and Investigations Act 1996’ 60 Modern Law Review 79

Roberts, P (2002) ‘Justice for all? Two bad arguments (and several good suggestions) for resisting double jeopardy reform’ International Journal of Evidence and Proof 199

Royal Commission on Criminal Justice (1993) Report (London: HMSO) Cm.2263

Serious Fraud Office (2002) Annual Report 2001-02 http://www.sfo.gov.uk/publications/annual_2002.asp

Stockdale, R and Walker, C, (1993) ‘Forensic Evidence’ in Justice in Error (eds., Walker, C and Starmer, K), (London: Blackstone), p. 75

Travis, A and Dyer, C, (2002) ‘Alarm at wider justice rules change’ The Guardian, 18 July, p. 1

Walker, C, and Stockdale, R, (1999) ‘Forensic Evidence’ in Miscarriages of Justice: A Review of Justice in Error (eds., Walker, C and Starmer, K), (London: Blackstone), p. 119

⁽¹⁾ The White Paper, at para. 4.64, refers to ‘a number of other very serious offences such as rape, manslaughter and armed robbery’ (emphasis added).
⁽²⁾ The question was put to the Home Secretary by Frank Cook, MP for Stockton, North, in whose own region something of a double jeopardy cause celebre has arisen (Hansard 17 July 2002, col. 298). Julie Hogg was murdered, and her body was found behind a bath panel. Billy Dunlop was charged with her murder and acquitted. Several years later he confessed to the crime. He was convicted of perjury. On the Julie Hogg case, see Casciani (2002).
⁽³⁾ See Recommendation 38 of the Report. The irony is, as James, Taylor and Walker (2000) point out, that even a relaxed double jeopardy principle would conceivably not facilitate a successful second prosecution, if the problem with the first prosecution was to do with the nature of the original investigation. Under the current proposals, the requirement that the new evidence should not reasonably have been available at the first trial could work against the prosecuting authorities in this case. Nonetheless, Sir John Stevens, the Metropolitan Police Commissioner has stated that he would use the proposed changes to pursue the relevant suspects (see Bennetto (2002, p. 1). The White Paper proposals on double jeopardy have been lambasted by Courtenay Griffiths (2002, p. 25) as ‘a most cynical exploitation of the case of Stephen Lawrence’. It may be recalled that he is the defence barrister who came to prominence in the 2001 trial of those accused of murdering schoolboy Damilola Taylor (another case which the Metropolitan Police Commissioner is considering reappraising should the double jeopardy reforms go ahead (see above)).
⁽⁴⁾ See the comments of Black J. in the US Supreme Court: ‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ (Green v US 355 US 184 (1957) at p. 187).
⁽⁵⁾ See the so-called ‘Connelly principle’, the application of abuse of process rules in a manner informed by the decision in Connelly v DPP [1964] AC 1254.
⁽⁶⁾ It is perhaps worthy of note at this stage that this section of the White Paper is somewhat unusual in that it makes explicit reference to the European Convention on Human Rights. Interestingly, double jeopardy is an area in which this jurisdiction could afford to relax its protections for defendants without necessarily falling foul of the Convention: see Protocol 7, Article 4, of the ECHR, which states:
‘1 No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.
2 The provisions of the preceding paragraph shall not prevent the reopening of the case in accordance with the law and penal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case.
...’
Protocol 7 has yet to be ratified, but, according to the Human Rights Unit of the Lord Chancellor’s Department, there is an intention to do so. See http://www.humanrights.gov.uk/hrafaqs.htm.
⁽⁷⁾ Criminal Justice (Mode of Trial) Bill 1999; Criminal Justice (Mode of Trial) (No. 2) Bill 2000.
⁽⁸⁾ The White Paper seeks to identify special types of case which are so complex and lengthy that they might be best served by trial by judge alone (paras. 7.24-7.27). It should also be noted that the Paper invites views on the extension of judge-only trials to ‘some organised crime cases where there are similar complex financial and commercial arrangements’ (para. 4.31).
⁽⁹⁾ A good deal of the scepticism towards jury involvement in fraud trials arises from the high-profile trial and acquittal of the Maxwell brothers. However, the Serious Fraud Office claims an 86% conviction rate over the last five years (see Serious Fraud Office (2002). If the conviction rates in such cases are respectable, it might be suggested that the real rationale for the proposed change is the making of efficiency gains. Juryless trials in these undoubtedly complex cases would not be beset by the difficulty of recruiting a cohort of factfinders who were able to serve for the requisite (probably long) period (see White Paper, para. 4.28). Also, the theory goes that in the absence of a jury, the trial itself could proceed more quickly.
⁽¹⁰⁾ There is an immense case law on this issue, but landmark cases include DPP v. Boardman [1975] AC 421 and P [1991] 2 AC 447.
⁽¹¹⁾ See Criminal Evidence Act 1898, sections 1(2) and 1(3). Broadly speaking, an accused cannot be cross-examined on his or her previous misconduct, unless he or she asserts their own good character; casts imputations on a prosecution witness; or gives evidence against a co-accused.
⁽¹²⁾ See currently, Criminal Justice Act 1988, ss. 25 and 26.
⁽¹³⁾ It will be recalled that the convening of the Commission was announced on the day of the release of the Birmingham Six.
⁽¹⁴⁾ See Criminal Justice and Public Order Act 1994, ss. 34-37. This particular reform was, of course, in spite of the recommendation of the Royal Commission that the right be maintained (see Recommendations 82 and 83 of the Royal Commission on Criminal Justice (1993, p. 195).
⁽¹⁵⁾ See Criminal Procedure and Investigations Act 1996.
⁽¹⁶⁾ In the context of a discussion of the Court of Appeal, Nobles and Schiff (2000) suggest that official criminal justice decisions can be informed by the occurrence of episodic crises. They note that a key player in such crises is the media. From such a perspective, it may be that the White Paper is symptomatic of the latest ‘crisis’.
⁽¹⁷⁾ The proposals are informed by a fear of tactical manoeuvring on the part of defence lawyers (see White Paper, para. 3.46) which is not necessarily borne out by the evidence in the Paper itself. There are echoes here of the spectre of ‘ambush defences’, which informed the development of the Criminal Procedure and Investigations Act 1996. Whether that was a justified fear was doubted by Leng (1995).
⁽¹⁸⁾ This need not be a problem if carefully managed. However, the mere grafting of particular inquisitorial processes onto an essentially adversarial system is bound to produce tensions unless other systemic changes take place. See Fitzpatrick, (1999, p. 167).
⁽¹⁹⁾ The Home Secretary is quoted as having told BBC Radio 4’s Today programme, ‘You tilt the balance [towards victims] by ensuring the unscrupulous and the avaricious can’t act to completely dislocate the whole of the system’ (taken from ‘Blunkett scraps double jeopardy rule’ http://news.bbc.co.uk/hi/english/uk_politics/newsid_2132000/2132683.stm accessed 17 July 2002, URL now corresponding to a different report on the White Paper).
⁽²⁰⁾ The proposed change may impact upon the ‘local’ connection with the functioning of magistrates’ courts. Having said that, agency status for the administration of these courts is not a new idea. It was mooted, and rejected, following the Le Vay Scrutiny: see Home Office (1989).
⁽²¹⁾ Dr. John Pugh, MP for Southport remarked on the ‘dismal history of Home Office computer procurement’ and suggested that ‘few of us would trust its representatives on a trip to PC World’ (Hansard 17 July 2002, col. 296).
⁽²²⁾ Though, of course, the European Convention on Human Rights does also countenance the rights of victims, as well as of defendants.
⁽²³⁾ The linkage is expressed thus: ‘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’ (White Paper, para. 1.17). On the inadequacy of the ‘balancing’ metaphor in criminal justice, see Ashworth (1998).