Tuesday, 26 February 2013

Cost over quality - the 'secret' is out

This week's revelation that the CPS seemingly favour 'cost over quality' - by in instructing in-house advocates for the most profitable cases - has been greeted with strange surprise by figures including the DPP, Keir Starmer. But it should be questioned whether such incredulity is genuine; it should be no shock that that the underlying mantra of the criminal justice system is now 'cost over quality'.

There are many clues and have been for years. The eternal drive for more 'efficiency' and 'speed' in criminal proceedings is not necessarily born of a desire to just cut out bona fide time-wasting. The very term seems to include actions that both defence and prosecution (and perhaps juries and victims) would consider necessary, including instructing experts and robust defence cross-examinations. The latter seem to be increasingly conducted under the watchful eye of magistrates and judges with equal concern for the clock. Sometimes this is good and sometimes this leads to missed evidence or truncated testimony, subsequent appeals and more money spent. Additionally, wasted costs orders are effectively used to punish 'time wasting' and deters going too far for clients.

The Criminal Procedure Rules - now the touchstone of the criminal process - are founded on principles all geared towards quicker, shorter, cheaper. The 'Stop Delaying Justice' policy is similarly oriented - often urging the defence to declare their hand before even being fully aware of the case against them. Failure to do so could mean negative inferences or WCOs.

The CPS have, for years, been under the kosh financially. The regularity of unprepared prosecutors or missing files on the day of hearings is frequently bemoaned by both judges and defence lawyerly. The email that has whipped up a storm this week betrays the key driving force behind CPS budgeting - maximise profit in order to keep the car running. How many other senior managers have sent out similar emails is unknown; but it is highly unlikely to be rare.

The Coalition Government and their predecessors are most guilty of placing cost first. The continuous slashing of legal aid disincentivises quality work and is easy to target. Fixed fees for police stations and graduated fee schemes for advocates are good examples. The drive for tender-based competition and schemes such as OCOF are causing near riotous insubordination amongst the legal profession. The near miss of means tested legal aid in the police station under LASPO also highlights where the government's priorities lie.

Other examples include Chris Grayling's recent attack on QCs (the necessary quality of whom was lauded by Lord Judge); Theresa May's proposed transfer of thousands of cases away from trained advocates to the police for prosecution; the continuous drive to push defendants out of courts and onto video camera; phone based legal advice rather one-to-one representation. There are many more.

All are primarily justified by terms like 'efficiency', 'value for money', 'slashed bureaucracy', 'speedier justice', and so forth. Last to pass the lips are 'quality', 'high standards', 'rigour' or 'effectiveness'. Justice has become a price tag among price tags behind the Treasury's doors. And we shouldn't be suprised - the evidence surely proves it beyond reasonable doubt.

Wednesday, 13 February 2013

Frances Andrade: Who to blame?

The sad case of Frances Andrade - who took her own life after giving evidence in court - has caused significant discussion about the treatment of victims of crime. Defence lawyers have been the primary target for criticism; but this focus is perhaps unfair. Different parts of the system exercise influence on those individuals drawn into the system, and I suspect that to blame the defendant's counsel entirely is to settle for an easy scapegoat. This post examines different 'players' in the system, with the hope of providing a more balanced analysis of what may have caused this tragic event.

The victim or 'complainant'

Frances Andrade was a 48 year old violin teacher and mother, with a supportive family. She took her own life during the trial of Michael and Hilary Brewer, her school music teacher and his ex-wife, accused of sexually abusing Mrs Andrade whilst in her teens. Mrs Andrade left no note or explanation for her decision. She reportedly commented regularly that the process was an ordeal in which she felt she was 'on trial'.

This experience is common. Providing evidence in court is an intense process, where the reliability and credibility of a prosecution witness is likely to be questioned. There are few ways of preparing for it. However, the Youth Justice and Criminal Evidence Act 1999, created an extensive set of protections for vulnerable prosecution witnessess, most notably in sexual offences cases. These include the taping of evidence-in-chief in advance, video link testimony, protective screens, and even limitation on what lines of questioning defence lawyers can pursue.

Historic sexual abuse is extremely serious, but complex. The manipulation and exploitation of vulnerable individuals nearly always has substantial long-term implications for victims, affecting not only their life generally but often draining any desire to engage with the issue again - in short, to bury it in the past. A problematic aspect of historic cases is the near universal lack of forensic evidence, placing great emphasis on the evidence of the primary witness in a case. The combination of this pressure, the intimidating prospect of the court process, and the urge to forget the trauma present a signficant barrier to victims coming forward.

However, reporting and prosecution of such offences now occurs much more regularly; increasingly, victims of recent and historic sexual abuse have found the courage to report their experiences, largely due to changes in the culture and attitude of both society and the legal system towards such cases and the treatment of witnesses. In all these cases, witnesses must face questioning about their allegations; but not all take the tragically terminal decision of Frances Andrade - hers is an unusual case and not necessarily indicative of a broken system.

Until the Brewers were convicted, Mrs Andrade could not be classfied as a victim. She was a complainant - an individual making an as yet unproven allegation of criminal behaviour against a defendant. This aligns with the principle of 'innocent until proven guilty'. To Mrs Andrade this would have meant nothing - she knew the truth and understandably her family and friends supported and believed her. However, society cannot simply accept as true - on trust alone - such serious allegations against another without thoroughly tested evidence. 

Proof beyond reasonable doubt is required; to do any less would leave our criminal justice system in a dire mess, riddled with false allegations and convicted innocents. It is important to underline that prosecution witnesses are not the only potential victims; those falsely accused or wrongly convicted of serious criminal offences - particularly sexual offences - can and have had their lives destroyed. As such, until proven, Frances Andrade needed to be treated as a complainant and not a a victim.

Several factors appeared to influence Mrs Andrade's feelings about the prosecution of the Brewers. Some sources suggest she had never wanted the prosecution to proceed at all; it was apparently initiated by the police independently. Other reports state she refused the aforementioned special measures, determined to face the defendants in court. She had attempted to take her life on two occasions prior to the trial and, controversially, had not received therapy for her psychological wounds. Finally, the dropping of five charges against Mr Brewer closely coincided with her decision to end her life, and may have been a factor (according to this description by her husband)

Whether her feelings about the case and her decisions relating to it resulted from fear, defiance, desperation, an underestimation of the intensity of the court process, or a mix of the above, is unclear. Clearly, a variety of factors deeply affected her prior to her death. It is worth remembering that the trauma inflicted upon her by the Brewers was the root cause of her death. To return to the point made in the opening paragraph of this post, to suggest that the words of the defence lawyer were the primary trigger is both speculative and misleading.

The judge

The judge has a crucial role to act as a guardian in cases with vulnerable witnesses. He or she must ensure that complainants are questioned fairly and with appropriate sensitivity; but equally, a judge will insist on witnesses being cross-examined robustly. Judges will neither allow the humiliation of a witness by a defence lawyer simply to score cheap points, nor will they allow a defence lawyer to shy away from hard but necessary questions. The judge has a primary duty to serve the administration of justice, which requires both prosecution and defence to present their cases.

Since the passage of the Youth Justice and Criminal Evidence Act 1999 and the introduction of the Criminal Procedure Rules in 2005, judges have been very proactive in their management of criminal trials. It is arguable, in fact, that restrictions on certain types of defence evidence (particularly sexual history) have been enforced so stringently as to exclude truly relevant evidence (see R v A (No. 2) and R v Beedall) to the detriment of the defendant and benefit of the complainant. In this context, one might conclude that the culture amongst the judicicary is generally favourable to the protection of complainants.

The judge would have rightly granted special protective measures to Mrs Andrade had she desired them. The trial judge, Martin Rudland, commented that the defence lawyer had been 'perfectly proper and correct in her examination of all the witnesses in this case'. There is little suggestion in this case that the judge failed to provide adequate protection for Mrs Andrade during the court process; to criticise the defence lawyer for excessive zeal without also criticising the judge for failing to control proceedings seems unjust.

The defendant and defence lawyer

The defendant or accused has a long-established right to a fair trial before an independent tribunal. Until allegations are proven via a rigorous process and to a very high standard, the defendant remains an innocent man or woman. The entitlement to present one's case allows a defendant to honestly submit evidence or argument contrary to the account of the prosecution and their witnesses.

This is justified on the bases that the innocent majority must be protected from wrongful conviction, which not only offends the rights of the blameless but fails to protect the public from the genuinely guilty. To presume the veracity of accusations in advance would greatly increase the chances of such miscarriages of justice. False allegations are made for various reasons: revenge; to deny or hide an embarrassing truth; or even due to genuine belief. In a parallel with false confessions by suspects, complainants can sincerely believe in allegations without foundation - perhaps because family, professionals or the Police have convinced them.

The Brewers were thus entitled to dispute the accusations made by Mrs Andrade. In cases of alleged historic sexual abuse, it is usually one person's word against another. Sex offences - such as rape - are very personal and usually private in their nature; hence, multiple prosecution witnesses are uncommon. Thus, the defendant and complainant engage in a one-on-one battle of credibility and reliability.

In this sense, the Brewers' defence was almost certain to be that Mrs Andrade was lying. From a neutral point of view, this was an expected and justifiable case to make since the allegations were as yet unproven. The Youth Justice and Criminal Evidence Act 1999 prohibits defendants from cross-examining complainants in sexual offence trials. As such, the Brewers were entirely reliant on legal representation to present their case and question Mrs Andrade directly.

The defence lawyer owes a duty to promote the best interests of the defendant and present their case, lawfully and properly. Brewer's counsel, Kate Blackwell QC, is a highly experienced criminal barrister, who has prosecuted and defended in several high profile cases over a 20 year period. Blackwell is required to 'promote and protect fearlessly' a defendant's interests and rights (Bar Code of Conduct, Para. 303(a)). This should be done regardless of the defendant's character or cause, in a detached and robust manner.

The fear of offending or upsetting a complainant cannot prevent a defence lawyer doing their job. The Code explicitly prohibits questions 'which are merely scandalous or intended or calculated only to vilify, insult or annoy' (Para. 708(g)), but equally they must present the defendant's case 'without regard to his own interests or to any consequences to himself or to any other' (Para. 303(a)). The case for a defendant will almost inevitably upset a complainant because it will contradict their own - in highly sensitive cases, causing acute embarrassment or upset to a primary witness is often unavoidable. How this is presented must tread within the boundaries above; judges are quick to stop cross-examination which offends these principles (often doing so for much less - for a recent example, albeit a family case, see J (A Child) [2012]).

The Brewers' argument was that Mrs Andrade was a liar and a fantastist; as such, Blackwell's duty was to present that case. In doing so via cross-examination, she had little option but to state directly to the complainant that she was a 'liar' and 'a fantasist'. These are, of course, horrible labels; no one would wish to be called either, and a primary issue for victims of sexual abuse is being believed. Accusations of lying and fabrication were, understandably, deeply painful for Mrs Andrade; but in a situation where a jury must decide who's account is more credible, the defence lawyer cannot be blamed for depicting the accuser as unreliable. As the trial judge stated, 'you did your job, in that you put what had to be put to the witness.'

The assumption of a direct link between the trial and Mrs Andrade's death has led to some negative classification of Blackwell's cross-examination. Javed Khan, Chief Executive of Victim Support, characterised it as 'aggressive'; her son described it has 'hostile'; and the Home Secretary suggested it would deter complaints about sexual abuse. Others have described it as 'robust' and, as mentioned, the trial judge described her conduct as 'proper' and 'correct'. The words used by Blackwell were the central to the defence case; to avoid them for fear of offense or upset would be a dereliction of duty and might well have led to censure by the judge or even formed grounds for appeal. As Mrs Andrade's son pointed out, the defence lawyer 'challenged her personal integrity' - which is an absolute necessity.

The role-differentation that defines the defence lawyer's obligations were in fact recognised by Mrs Andrade's husband, Levene. He stated, 'I know it's not personal, she [the barrister] has to do that, she has to attack, she has to defend her client.' He went on, 'I understand. If I was put in that position as the accused, I'd want the very best fighting on my behalf'. There are few better descriptions of the role.

The Police, CPS and Victim Support

The Police and CPS are charged with investigating and prosecuting criminal activity; as representatives of the state, they form the other 'party', alongside the defendant, in adversarial proceedings. They also have a pastoral role, supporting complainants, witnesses and their families through the process. Victim Support provide what might be termed 'moral support' and guidance during criminal proceedings.

Although it has not been ignored, the failures of the prosecutory arm of the criminal justice system have been partially obscured by the maelstrom surrounding the defence lawyer's cross-examination of Mrs Andrade. The primary criticism is the deeply misguided decision taken by the Police to advise her not to seek counselling until after the proceedings were complete.

The apparent reasoning behind this was the fear that psychological therapy might affect the quality of Mrs Andrade's evidence in court - the implication being that a calmer, happier, and more well adjusted complainant might undermine the seriousness of the accusations in the eyes of a jury. This advice is grounded in the widely discredited myth - particularly relating to rape - that marks of a 'genuine' victim are visible distress and emotional instability.

This 'myth' has presented a substantial barrier to the pursuit of prosecutions for sexual offences for many years, particularly among police officers married to the idea that rape victims cannot be believed unless they express emotion. It is well documented that victims of rape often exhibit calm, logical and sober descriptions of their experiences. As such, this commitment to the court process as a 'sort of theatre' where the jury need to be impressed by the complainant's performance lacks a basis in evidence and is damaging to complainant well-being.

The advice provided to Mrs Andrade reinforced the myth, an approach described by former Solicitor General Vera Baird QC as 'very out-of-date', 'abysmal psychiatry' and 'an appalling misjudgment'. Although a speculative conclusion, one suspects that a lack of professional psychological help, over a two year period, during an extremely intense process, was likely to be a major causative factor in Mrs Andrade's death.

Andrade's son described how she was effectively left to 'cope on her own', with only family and friends to support her. The CPS provided a Witness Care Officer to explain the process to Frances Andrade and special measures were successfully applied for. Yet, she opted to decline them. This raises the question as to whether the CPS and Victim Support had adequately prepared her for her court appearance - reports suggest the CPS only discussed the court appearance with Mrs Andrade the day before it occurred.

To an extent, both lack the ability to do more. The former is a busy, under-staffed, under-funded organisation primarily dedicated to case preparation and presentation. Their job is to pursue the case for the state - as distinct from the complainant. Under the adversarial system, the complainant is a witness, albeit the central source of evidence in this sort of case. But beyond the protection of special measures and pre-trial preparation - which excludes coaching - they can do little else. 

Victim Support have very limited resources, with no rights of audience or intervention. They can provide a basic 'therapeutic' service by allowing complainants to articulate their thoughts and feelings, and offer guidance as to procedures and experiences, but they are neither lawyers not counsellors.

The Police's advice, however, should be seriously scrutinised. It should be questioned whether their desire to secure a conviction, by encouraging what might inaccurately be termed 'best evidence', overrode the best interests of the complainant: to seek professional help for the serious psychological problems which had clearly negatively affected her prior to and during the case. 

Additionally, the suggestion that Mrs Andrade never wished to give evidence against Michael Brewer infers that she was convinced to do so - and one wonders how far the Police went to ensure that a viable case could be brought. In all likelihood, these decisions and behaviours contributed to the eventual tragedy, when they could have been avoided. 

The System - is Adversarialism too cruel?

To pretend that the cross-examination of Mrs Andrade was not a potential factor in her death would be naive. The experience was undoubtedly humiliating, traumatic, and emotionally exhausting. As an essential feature of adversarialism, cross-examination is cruel. But it is also necessary.

The adversarial theory posits that the truth is best reached by an equal battle between opposing parties. Both  'sides' have the ability to present their accounts before an independent adjudicatory tribunal, question each other's version of events and ensure no one has, as Richard Moorhead terms it, 'a monopoly on truth'.

The adversarial system thus elicits (in theory) a thoroughly tested body of evidence, judged without bias or vested interest, and secures the individual rights to both defend oneself and pursue justice for wrongs suffered. The process is undertaken orally (as much as possible) and in public, so that the accused can meet their accuser.

Cross-examination of complainants by the defence are essential to this; providing oral testimony about traumatic experiences is generally unavoidable if a prosecution is to be secured. Mrs Andrade's son commented that his mother was 'forced to relive' the awful experiences of her childhood. The sad fact is that this is a necessity in our current system.

The adversarial system in its purest form is certainly brutal - but that is rarer now. Much has changed in recent years. The aforementioned special measures and restrictions on lines of cross-examination have provided significant comfort and protection for victims; but only so much can be eliminated.

The Criminal Procedure Rules impose a duty on all parties to 'respect . . . the interests of witnesses [and] victims' and grant the judiciary substantial discretion in excluding evidence considered to be irrelevant or indulgent. Both a Charter and Code of Conduct for victim's of crime exist. Victim Support provide help and guidance to complainants, and the CPS and Police have dedicated officers designated for dealing with complainants. Complainants are also consulted prior to charge of a suspect - as Mrs Andrade was.

All of this is worth pointing out because complainants are not formal parties to a criminal prosecution. The state charges an individual defendant, usually at the behest of the complainant (in contrast to Mrs Andrade). The matter is thus between those two parties - the complainant is a witness, but does not have formal rights. As such, all of the measures mentioned above form a signficantly more robust framework of rights than a traditional adversarial system would envisage. But they are positive and should certainly be defended.

Some have suggested that the complainant needs be more than a 'bit-player' in the process. While I would argue they already are, any suggestion that complainants should be a party should be treated cautiously. The authority of the state prosecution would be undermined; representation of the complainant may be based on emotional drives such as revenge, fear or hatred, rather than solid evidence and reasoned logic; and the supposedly equal balance between the prosecution and the defendant (who is already at a disadvantage in terms of resources and funding) would be critically affected.

The cruelty of the defence lawyer and the flawed nature of the system have been blamed for this unique but tragic incident, and calls for review and revision have already begun. But before we rush into a rash and emotional assessment of what needs to change, the whole picture should be considered. Hopefully, this comment demonstrates that adversarial criminal justice is a complex interplay of constituent parts; to some extent, its harsh realities remain unavoidable if we are to have a fair and accurate system of justice.

Monday, 11 February 2013

Discretion Advisable: The difficult case of Venables’ Lawyer

In February 1993, 10 year-olds John Venables and Robert Thompson were convicted of the brutal murder of toddler James Bulger. Recently, presumably to tie-in with the 20th Anniversary of the event, Venables’ former defence solicitor – Laurence Lee – gave an interview to the Herald Scotland, raising issues about the appropriate role and attitude of a criminal defence lawyer in the police station and beyond. The interview was notable for Lee’s tendency to blur the lines between the personal and the professional in this context, and his willingness to tread dangerously close to the boundaries of client-lawyer confidentiality.

The murder of James Bulger was and remains an exceptional case, striking a universal chord across the UK. I was 7 years old at the time, only a little younger than Venables and Thompson; like anyone else, I can’t imagine even the slightest possibility that I, or any of my friends, would commit or even contemplate such brutal actions. The benefit of hindsight allows us to regard Venables and Thompson as vile and sadistic killers. But at the time, the possibility that two children could have kidnapped, tortured and murdered a toddler seemed inconceivable. As such, it was essential that both suspects were defended properly; revealing the truth seemed an awful prospect, but to ensure justice for James Bulger, it was imperative that the facts be established accurately, fairly and legitimately.

The views expressed by Lee make interesting reading in this light. As a human being, one can certainly forgive and understand the obvious affect the case had on him; very few would be immune from the impact of such traumatic events. This comment does not pretend that Lee is a robot. But the interview may represent some revisionism on Lee’s part in assessing his feelings at the time; otherwise it raises issues about how committed he was to the defence of his client, Venables – at that time, a child in a police station without the infamous reputation he now has.

Criminal defence lawyers are required to act as neutral partisans – detached, non-judgemental advocates for the client and his or her interests, whoever that might be, whatever the allegations. This is justifiable on the bases that all are innocent until proven guilty and should be able to access qualified representation before the law. As the duty solicitor assigned to Venables’ case, Lee’s role throughout both the police interview and the subsequent trial should have been to advance and defend the interests of Venables as robustly as possible, within the law.

Lee’s descriptions raise questions about his representation of Venables. The interview is peppered with emotive language, suggesting a less than sober approach – an essential requirement of his job. For example, Lee describes how Venables was ‘angelic-looking’; this is irrelevant and should have no influence on the professional approach of a defence lawyer.

Lee supposedly asked of himself: ‘What am I doing here? He couldn’t be capable of anything like this’. Again, this is contrary to the demands of the role – personal instincts and assumptions should be entirely divorced from professional duties, which require the lawyer to protect the client before him or her. To personally invest in the innocence of the suspect – in this case, simply because he was a child – is arguably as unhelpful as automatically assuming there is ‘no smoke without fire’, obstructing detached, sober and robust protection of the client. The answers to Lee’s questions should therefore be straightforward.

Lee described the job as ‘the easiest money’, which seems a rather na├»ve conclusion for a criminal defence solicitor. It should have quickly become obvious that, of all possible scenarios, this case seemed highly unlikely to be simple. Again, this seemed to derive from an assumption that no child could commit the acts Venables stood accused of.

It displays a somewhat prejudicial approach – the defence lawyer’s belief in their client’s genuine innocence or guilt is irrelevant. They must defend them within the limits of the law, protecting the client’s rights and confidences but without lying or deceiving. In contrast to this proactive professional, Lee’s description suggests a man who seems to follow the proceedings as an engrossed observer.

Lee also stated he would have ‘happily’ prosecuted Venables and that his ‘number one sentiment’ was for the Bulger family. This could be interpreted in two ways; either Lee was satisfied to both prosecute and defend suspects generally, or he would have derived satisfaction from convicting this particular client. The former reflects a detached, professional attitude, free from personal association or investment in the client (whether it be the state or the suspect).

The latter, however, is problematic. Had Lee been uninvolved in the case, one could understand his overt disdain for Venables; but his job was to defend him, and test the police case as thoroughly as possible. It raises questions about his commitment to his client. As a professional, regardless of personal feelings, Venables should have been ‘his number one sentiment’, or more appropriately his number one ‘priority’. Had he been unable to separate his emotions from his duties, it would have been wise to have withdrawn. Which interpretation Lee intended is unclear.

On a different note, Lee also mentioned his fear of reprisals and even assassination. This is entirely understandable. The case was widely covered in the media and has remained a benchmark for the worst type of criminality in this jurisdiction. Notwithstanding his role as a professional, many may have associated Lee with Venables on a personal level – as someone who approved of and defended his horrendous actions. This fails to recognise that a defence lawyer is not as one with their client, and they do not defend their criminal actions – they defend the rights of a person not yet convicted.

The defence lawyer is an essential requirement of any fair and legitimate criminal justice system. The professional defends, not out of empathy for the accused, but because all should be represented before the law, the rights of the innocent protected and the guilty convicted as the result of a legitimate, balanced and thorough investigation. To target Lee as a sympathiser would therefore be seriously misguided.

More generally, Lee seems comfortable with or at least oblivious to his troubling approach to confidentiality – a duty that continues after the dissolution of the client-lawyer relationship. He describes Venables’ statements, behaviour, and moods in very private settings – for example, a client conference with Venables’ barrister. Presumably, Lee assumes that since Venables is a despised figure forever trapped by necessary anonymity, the obligation of confidentiality no longer subsists. This is, of course, false. Lee’s decision to ‘spill the beans’, presumably for a fee or perhaps to rehabilitate his name, is inappropriate and arguably unethical (in the professional sense). After all, a (good) doctor would not publicly divulge past consultations with famous or controversial patients.

Lee’s empathy for James Bulger and his family, and horror at the nature of the case, are entirely understandable. He drew a difficult hand, but was nonetheless bound to fulfil a critical role; had he felt professionally or personally unable to handle the case, he should perhaps have passed the brief to a more experienced colleague as quickly as possible. Lee saw it through and that is very much to his credit. But in describing his experiences, he should have clearly marked a line between his professional role and personal feelings. By blurring the boundary between the two, he has undermined the integrity of his position as a defence lawyer in this infamous case.

Monday, 4 February 2013

Police prosecutions and the ‘deprofessionalisation’ of criminal advocacy: short-term savings with a long-term risk?

In October 2012, Home Secretary Theresa May announced that police powers of prosecution would be extended substantially for the purposes reducing bureaucracy and saving money. However, questions can be raised about both of these conclusions – and the symbolism of such a move is troubling. Under the plans, the police will not need to pass prosecutions to the CPS in around 50% of cases in the Magistrates’ Court, where more than 95% of all criminal prosecutions occur. As such, the police will be responsible for large proportion of all criminal prosecutions in England and Wales. The addition of 90,000 more cases to the police portfolio of duties could be problematic, both for them and for justice in general. 

This very sizeable chunk of extra work will test an over-stretched police force, already feeling the effects of austerity cuts. ‘Front-line’ policing is supposedly protected – but every other area of work appears to be vulnerable. One must wonder where this additional duty fits into the economic picture for the police? Will officers spend days in the Magistrates’ Court, processing minor offences, resentful of the added burden granted to them by the Home Secretary? Or will staff be hired to do so? Or will the police even contract advocates? The last of these seems the most unlikely as it would probably be the most expensive and render the transfer of cases from the CPS pointless. As such, it is arguable that the result will be not a saving of cost, but a shifting of cost. 

Additionally, one can’t help but feel police bodies and time could be better spent elsewhere. Increasingly, the police seek to divert suspects away from the trial system through the use of measures like conditional cautions, warnings and penalty notices; between 2003 and 2008, out-of-court disposals such as this increased by 135% (Office for Criminal Justice Reform, 2010). These may often be inappropriate; suspects may be urged by the police to save themselves time and trouble by accepting such an option, or may be coerced into believing in their own guilt (regardless of the factual reality). Equally, cases that should be pursued may be filtered out of the system, denying a sense of justice or ‘a day in court’ for a complainant. In the face of the Home Secretary’s proposed changes, such action might now be further incentivised as a ‘time saver’. 

The strategy also potentially threatens the integrity of the justice process. Prior to the Prosecution of Offences Act 1985, the police were responsible for the majority of criminal prosecutions in this jurisdiction and had been for over a century. The creation of the Crown Prosecution Service under the statute was aimed at ending miscarriages of justice, usually resulting from inappropriate, misguided or even illegal prosecutions by the police. The Home Secretary’s proposed change undoubtedly represents an extensive reversal of that legacy. 

It should be pointed out that the police will not be responsible for the prosecution of not guilty pleas, under 16s, cases started by charge, or those which may result in custody. As such, it can be argued that this will not necessarily result in a return to the ‘bad old days’. But it is a step in the wrong direction; legally qualified CPS advocates will be replaced with officers or staff untrained (or one presumes, at best, the very quickly trained) in prosecution advocacy. Prosecutions will not undergo the oversight of the CPS – a very public body, observed and audited regularly, and substantially more accountable and transparent than the police. 

Police culture is also very different; the problematic ‘tunnel vision’ mentality that has caused so many major miscariages of justice (for example, the Cardiff Three, the Birmingham Six, etc.) presents a serious threat if the police see their additional 90,000 cases as conveyor-belt processing of the guilty. Defendants are all entitled to legal representation and a fair hearing – even if they have pleaded guilty. The danger presented by rushing through cases considered ‘unimportant’ or ‘minor’ is the dehumanisation of the system. Inch by inch, this culture generates only a cursory respect for rights, minimal level of attention to detail, and limited commitment to thoroughness of procedure. 

This is not to say the CPS never lapse into such behaviour – they are frequently complained about by defence advocates – but they are, ultimately, legally trained and immersed in a culture with a different perspective on prosecution to that of the police. The move is a slippery slope – and few who remember want to see a slide back to the era before 1985.


Office for Criminal Justice Reform, 'Initial Findings from a review of the use of out-of-court disposals' (2010)

Friday, 1 February 2013

Seminar on Police Ethics

This week, my institution – Plymouth University Law and Criminal Justice Centre – hosted an interesting guest seminar on a very topical subject: the ethical values and conduct of the police. I thought I’d post a summary of what was said.

Entitled ‘Police Ethics: Through A Glass Darkly’, the seminar was jointly presented by an academic, Professor Allyson MacVean (University of Chester), and an operational officer, Detective Superintendent Keith Perkin (Devon and Cornwall Police) – and it was refreshing to see scholarship and practice coming together to discuss this thorny and complex issue. 

Professor MacVean opened by referring to this month’s report by the Committee on Standards in Public Life in which the police were ranked the least ethical institution in the eyes of the public (alongside MPs). She also noted the recent reports of the Leveson Enquiry, the Hillsborough Independent Panel, and Desmond Da Silva’s investigation into the murder of Pat Finucane as topical examples of the heavy criticism the police have received for being untrustworthy, unaccountable and thus illegitimate. She highlighted that this primarily implicated senior police officers as opposed to the rank and file – a shift from past perceptions of unethical behaviour within the police. 

Professor MacVean explained that police ethics is not however a new issue. In 1999, Her Majesty’s Inspectorate of Constabulary (HMIC) espoused a series of qualities and values that the police should uphold, in its report ‘Police Integrity’. These included honesty, integrity, fairness, equal treatment and probity. She asserted that police ethics is important primarily because of the law enforcement duties of the police and the powers of discretion and autonomy applied to significant decisions affecting the public. 

She outlined how current attempts to define ‘police ethics’ are lacking in meaning and resonance. She pointed out that the police has no Code of Ethics (apart from in Northern Ireland), having failed to adopt ACPO’s draft version from 1992. Instead, several ‘arrangements’ exist, including the Oath of Office, the Statement of Common Purpose (1993), the Code of Conduct (under the Police Act 1996), the Statement of Mission and Values (2011), and the Police Ethical Decision Model (2011). 

Professor MacVean argued that, despite this raft of measures, police ethics remains a serious problem and identified three key reasons. First, she asserted that a ‘paramilitary philosophy’ remains part and parcel of policing – that is, orders are dispensed by the higher echelons which rank and file officers obediently follow without challenge or question. As such, little or no moral deliberation takes place. She suggested the lack of transparency in the decision-making process aggravated the problem; the introduction of Police and Crime Commissioners (PCCs) had, despite their democratic election, not helped this due to issues including inflated salaries, election rigging, lack of mandate, and nepotism. The second and third factors were a lack of training in ethics for police officers and the insufficiency of the current models, which do not mention or address ethics directly. 

Professor MacVean stated that ethical dilemmas were a real problem for operational police officers. In situations with no clear right or wrong answer, the discretion of the police becomes a very significant issue since the consequences of unethical behaviour could have a substantial impact. She also underlined the Neyroud Report’s recommendation that the police progress towards the status of ‘profession’ rather than ‘vocation’. She identified research activity, self-regulation (an impossibility for the police), degree-level education and a code of ethics as characteristics of a professional organisation, indicating that the matter of police ethics would need to be properly addressed sooner or later. 

Det Sup Keith Perkin proceeded to provide an operational police officer’s perspective on the issues raised. He commented that the police used to be a more trusted and respected institution, despite the poor attitude and behaviour of some officers from older generations. He suggested that police behaviour had not been adequately challenged in recent years, but that the reports mentioned by Professor MacVean highlighted the need to do so. He questioned whether the public had excessive expectations of the police; considering the very significant impact of the police on the lives of the public – through the removal of liberty, intrusive operations and covert conduct – he concluded that expectations should be high. 

He identified institutional and individual corruption and incompetence as matters of substantial urgency that damaged the credibility of the police, a service relied upon 24/7 by citizens and other public services. He argued that the police were now less accessible due to the closure of police ‘houses’ and stations, the rarity of officers living in their area of work, and the use of vehicles to undertake police work. As such, the police (as individuals and an institution) were less known and visible, with the force as a whole lacking connection with local communities. However, he also suggested atttiudes in society had changed generally over the last half century, with less respect for institutions of authority, a more self-indulgent attitude amongst the public, and more deliberate disobedience. 

Det Sup Perkin highlighted the increased performance management of the police since the 1990s, with HMIC inspecting, observing and pressuring the service, particularly in politically important areas like crime recording. He singled out the problem of lower crime figures and whether they should be interpreted as less crime or higher recording levels. He also disputed Professor MacVean’s assertion about the ‘paramilitary philosophy’ of the police, suggesting that senior levels were now more engaged with rank and file officers, indicating some shift in culture. 

He proceeded to discuss the problem of ethical decision-making in the context of Det Sup Steve Fulcher of Wiltshire Police and his handling of the Christopher Halliwell case, in which Fulcher breached PACE in order to ensure the suspect identified a second murder victim. He argued Fulcher’s subsequent suspension was controversial; he had attempted to do the right thing in a difficult situation (earning great admiration from the family of the second victim) but failed to fulfil the obligations of the statute. If such behaviour was unethical, he suggested it was hard to call it either corrupt or incompetent. 

He concluded by suggesting that the ethical framework of the police had been changed markedly by PACE, but that less money, worse working conditions, more pressure and low morale made ethical behaviour more difficult for many, citing the example of organised crime figures targeting police officers to ‘corrupt’. However, he argued that many police officers demonstrated a daily commitment to helping people and suggested that media portrayals of the police were often distorted and unfair.