Injustices within the system
Is the system fundamentally flawed?
By Karen Lesley Clark-Stapleton.
Despite its avowed commitment to the fundamental principle that any accused is to be presumed innocent and the corollary that the burden of proof (beyond reasonable doubt) lies squarely on the prosecution, the English criminal justice system appears altogether too likely to prosecute and to convict the innocent. Most criminal justice practices are inherently coercive and are seen to act with prejudice and inconsistency. One may argue that to some degree this is due to the investigative process which allows for prosecuting authorities to, amongst other things, hear only a sample of taped evidence to base a trial upon. When, if the tape was to be heard in its entirety before a decision was made to progress to trial many cases would indeed fall at the first hurdle.
At its simplest the criminal justice process is the process by which those who have allegedly transgressed the criminal law are dealt with by the state. Quite often though it is simply the over reaction of a law enforcer who perpetuates the reality that the police act sanguinely. Our own image of the criminal justice system is one of a complex social institution which regulates potential, alleged, or actual criminal activity within procedural limits that are supposed to protect citizens from wrongful treatment and wrongful conviction. This image draws heavily on that developed by Garland to understand aspects of modern society such as government, punishment or education. He describes these social institutions as; "established frameworks for the satisfaction of needs, the resolution of disputes and the regulation of life in a particular social sphere" (Garland 1990 p282).
Interviewing is the principal investigative strategy and has become increasingly important in police investigations in recent years (Sanders and Young 1994) . Interviews are useful to the police as they provide evidence about the crime under investigation as well as information about other offences or the suspects associates (McConville and Baldwin 1981; McConville et al 1991). PACE 1984 clearly states that the purpose of an interview is to gain an explanation of the facts, but Moston (1990) concluded that increasingly an interview is seen by the police as a way to secure an admission as this is a short cut to a conviction as usually no more evidence gathering then is necessary. The emphasis on securing a confession has been a consistent feature of miscarriages of justice (Williams 1990) where the admissions given have been shown to be unreliable. Confessions often result from interviews and research suggests that suspects make confessions or incriminating statements in around 60% of interrogations and in around 80% of guilty pleas. (McConville and Baldwin 1981; McConville et al 1993 ; Baldwin 1993).
The provisions of PACE in relation to interviewing aim to minimize the likelihood of unreliable or false confessions while making the police task easier by providing clear rules about the interviewing process. However they do not stipulate what is fair and non oppressive or the number of interviews that can take place or the length of time taken. This is an important factor that has been seriously overlooked especially when dealing with society's most vulnerable. It may be easy to see when a suspect has a specifically common mental health condition but it is far harder to evaluate when a person has dyspraxia or dyslexia or a specific learning difficulty or autism or auspergers. These people react in a variety of ways to pressure and this could ultimately result in a confession even when no evidence is available against them.
As we are aware an interview can be taped, however, as the tape may be turned off and on at the whim of the police it is hardly an accurate assessment of the events that may be unfolding. There is no way of knowing what was said or done when the tape was not running. It is more likely that a certain amount of pressure or deal making will be applied to the suspect during this time, in order to secure either a confession or for the police to ask the suspect to consider admissions of other offences that the police require to be cleared up for their detection purposes. A deal will be struck that will result in the suspect having a lesser offence placed before the magistrates to consider, and all other alleged offences - even those it would have been impossible for the suspect to commit, will be taken into consideration.
PACE has not significantly reduced the tactics that secure a confession, it has masked the way it is done. The police no longer put words into the mouths of a suspect, they coerce them into saying something that may be taken in a context not meant by the suspect but that can be used against him or her when summarizing the tape for trial. There is only one way for this to be stopped and that is for defence solicitors who are not present during interviews to listen to the whole tape and note any time where a lengthy gap appears during the interview or demand video interviews that are played continually during all the time of detention. In reality this is not happening, tapes used in custody areas which may form a significant part of the defendants evidence against the police are conveniently being lost or misplaced or taped over by unscrupulous custody sergeants who are firmly locked in an antiquated historical past 'cop-culture environment'.
The non-adversarial posture adopted by many solicitors and their staff, together with the routinisation of practices which systemic delegation requires, leaves the defendant poorly represented in many instances. The whole essence of justice and the using of tapes was for them to be heard, not for a summary edited by the investigating officers to be perused in court. In many ways this provides an unsafe environment for any interview. The interrogation based system is fraught with dangers and anomalies, the police continually abuse the rules and regulatory codes of practices of which solicitors and inexperienced representatives, many of them retired police officers supplementing their pensions, continually allow. Much reform is needed of the legal rules of detention and questioning, after all it is that very system that facilitates injustices and miscarriages of justice.
Ever more so as we are currently moving away from the due process rhetoric to an over riding concern with the efficient use of resources in ways which benefit 'the system' rather than the accused. Cultural, political and structural tensions that exist within the criminal justice process will continually produce injustices and wrongful convictions. Law as an impartial arbiter, as a dispenser of evenhanded justice, as a protector of the rights of all, has been heavily challenged by the critical legal studies movement. It has become clear that whilst law may become less white centered, less male centered and while the rights it protects and of harms it proscribes may be expanded, there must always be a gap between law and justice. Justice is something that must concern individuality, singularity, the precise match of remedy to situation, while law is concerned with generality. Justice is an aspiration of law, it cannot be an achievement of law.
This has a detrimental effect upon how policing is thus carried out, it is not the concern of the police if you did or didn't commit any particular crime, it is purely a matter of is there enough evidence to suggest you did, or it is simply can we collect enough evidence to suggest you did. The collection of evidence is paramount to any criminal case, without evidence in the physical form it would merely be a case of hearsay, and to some extent this is still the case. Miscarriages of justice occur in the main when the evidence collected is incorrect or misrepresents the case as presented to the court. Much evidence the police collect doesn't become part of disclosure until after the trial as with the recent case of Sally Clark. The problem is simple, the police have a specific agenda, that being to convict, and it does become personal . The police in many cases have a real difficulty in separating the reality of a crime being committed, the need to prosecute and the balance of justice. Promotion may be in jeopardy if the case is not heard. Police accountability and the nature of the cop culture environment within which the police service operate, perpetuates underhand and illegal practice and irregularity within much that they do.
Public and political discussions of crime incorporate a variety of notions about how crime can be explained. Some see individual criminals as inherently bad or wicked. Others blame a general lack of discipline, particularly within families, yet no one ever suggests that some crime is committed by police officers both personally and collectively. This agenda is to figure huge in a society that gives a force more money when crime figures rise. It is clear that the more criminal an area force the more funds they earn. In reality this is a nonsense, and it would be more prudent for that force to suffer a financial penalty if they cannot do the jobs they are trained to do. Police training costs the tax payer a substantial sum, yet as soon as they are released onto our streets much of that training is swept aside.
Bias within the criminal justice system is indeed a major concern. Bias can operate at any or every stage of the criminal process, stages which include investigation and charge by the police, prosecution decisions by the CPS, bail decisions, court verdicts and sentencing decisions - even after sentencing bias may occur with the allocation of prison accommodation. Bias occurs for a variety of reasons, it often results not from deliberate discrimination, but from unconscious prejudices and stereotypes, and even as an unintended consequence of prima facie reasonable attitudes, practices and decisions.
For whatever reason, such bias has led to critiques claiming the system functions to reinforce the position of powerful sections of society over the less powerful. The issue of bias has received some measure of official recognition. One result has been section 95 of the Criminal Justice Act 1991, which requires the Home Secretary every year to publish such information as he considers expedient for the purpose of "... facilitating the performance by [persons engaged in the administration of criminal justice] of their duty to avoid discriminating against any persons on the ground of race or sex or any improper ground", a provision which has led to the issuing of several publications (for example Home Office 2000e, 2000f) containing the results of research and monitoring.
To some extent this has helped in the identification of bias within the system. But so far there is little sign that it has brought about any diminution in the actual occurrence of bias. Bias against black people within the criminal justice system does not by any means end with the sentence. Black prisoners are less likely to be allocated to open prisons (NACRO 1986b:20) and inaccurate racial stereotyping this time by prison officers (97% white) results in yet more injust and discriminatory practices. What is seen as a good job within the prison population are mostly given to whites as blacks are seen as lazy, or unsuitable.
Women who are unfortunate enough to enter the criminal justice process are treated with absolute sexual prejudice. Barristers play upon the sexist prejudices in society in order to undermine what the woman is saying as a witness. She is often cross-questioned aggressively or in an accusatory way. There is a rule that women should not be questioned about their sexual relations with anyone except the accused, but judges often waive that rule at the request of defence barristers who then use these kinds of questions to discredit women (Anna T., 1988:62-3). Black women suffer even more from bias and prejudice within the system. Women imprisoned who appeal are less likely to have their conviction quashed or overturned, evidence is continually withheld from defence teams resulting in wrongful convictions usually surrounding the death of a child, their child.
As we can see when we read the headlines surrounding Cheshire solicitor Sally Clark, convicted two years ago for the alleged murder of her two sons. Pathology evidence which should have been made available was not disclosed, this resulted in her conviction which now would seem unfair and unjust, even unsafe. Women who enter the criminal process are seen as abnormal in comparison to their peers and are treated as such from start to finish. These practices are due to the inherently masculine system which operates in the UK.
Research shows that stop and search arrests are often based not on 'reasonable suspicion' but on prejudice. Suspects should be detained in police custody only when it is necessary to do so, but in fact it is almost unheard of for detention not to be authorised. When the police choose to stick to the rules as they do in most cases, things still go wrong. After the acquittal of George Heron for the murder of Nicki Allen the Northumbria police set up an inquiry into the case. It found that Heron had a legal advisor present during interviews and that they had been taped. But after he repeatedly denied involvement the police got noticeably angry. They told him they had evidence that they didn't have, misled him in other ways, and became offensive. The judge held that any confession they obtained as a result of this type of behaviour would be unreliable, (as in the tragic case of Stefan Kiszko who spent most of his adult life in prison after being intimidated into confessing to a murder he could not have done). So even when the procedural safeguards in PACE are adhered to by the police it doesn't mean that suspects are treated fairly, justly or that the results the police get are trustworthy.
When police breach rules with their oppressive forms of interrogation or when they deny you access to a solicitor there are no sanctions that can be brought against the officers or indeed the force in question, yet if you use insulting behaviour or defame any person or cause a trespass you can be sued. All you can do is make a complaint that is ultimately investigated by the police themselves, hardly surprising that not many complaints are upheld. Most complaints result in what is termed 'an informal resolution' a colloquialism for waste paper bin material . Secondly where you do have the right to sue as in wrongful arrest or misfeasance in public office your chances of success are low, how can you prove that the officer who stopped you had no reasonable suspicion?
With so much set against the individual successfully seeking any action against the police its no wonder they fear not any form of disciplinary action when they arrest a suspect. On the contrary, we have a system which tells people that they have rights and then does its best to ensure that those rights are unenforceable. The hundreds of cases each year in which the police compensate citizens for police rule breaking are just a few which escaped from under the carpet. Our criminal justice system operates so as to stifle complaints rather than encouraging citizens to air their grievances. There will be many more yet to come who proclaim their innocence ineffectively.
What we need to remember is that all systems will inevitably produce errors. The criminal justice system or process depending upon how you look at it has in place a number of procedures that are designed to guard against error and to provide remedies when errors occur. However, it is wrong to assume that these errors happen infrequently and the remedies in place are wholly inadequate when it comes to achieving their ostensible aim of preventing, remedying and deterring malpractice.
Until this situation is resolved the rule of law will continue to be a largely meaningless concept in the context of English criminal justice. One of the most fundamental principles of criminal law is that a person should not be punished unless he or she has both committed the act or omission in question and is blameworthy, but this is the area which the police have sole control. They arrest, they charge, then collect the evidence that fits the jigsaw they are indeed creating. Unsafe convictions happen initially because of institutional corruption within the police service. The intrinsic nature of cop culture creates crime. Sally Clark spent three years of her life in prison, she may never recover psychologically, yet the officer whose job it was to collect evidence and interact with the CPS will never face a court to answer some very damning claims of irregularity in the least.
The conflicting demands of due process, crime control and bureaucratic efficiency strongly affect how the police are organised and evaluated. They are expected to find and bring to court those suspected of having committed an offence, but while doing so must stay within the law and the restraints imposed by the adversarial system of justice. The Police and Criminal Evidence Act (PACE) was established to protect both the public and the police, it set out regulations that demanded adherence in order that a level playing field was established. Yet, this act is breached by police officers with alarming efficiency. If you as a detained person demand the rights you are entitled to as set within the act, then you will be kept in for a period which far exceeds the necessity of your detention. The police like to inconvenience and they are very good at it.
Solicitors do not always act with the considerations of the detained person at hand as this upsets the status quo. The fundamental tenets of the criminal justice process and indeed the system including the presumption of innocence and proof beyond reasonable doubt have been substantially eroded and they continue to be eroded beyond recognition. Truth seems not to be the factor most required at a trial, in fact it would appear it is often the casualty of the system. The Anglo-American criminal trial is not to establish truth but to convince the jury beyond reasonable doubt of the guilt of the accused even where no guilt arises.
Proof beyond reasonable doubt should require some form of corroboration no matter how small, this is the only safeguard and protection that can be safely offered to vulnerable suspects. Corroboration should not however be a police effort, as, we have seen in previous injustices and miscarriages the police fabricate evidence so they will just as soon fabricate corroborative evidence. It is most important to realize that no improvement in the criminal justice system is possible without improvements in police ethics. Yet more rights are soon to be eroded with the abolishment of the right to jury trial. This will have serious repercussions for ethnic minority groups who at present are more likely to be acquitted than whites at trial at Crown Court.
Also there are problems of admissibility and disclosure of evidence which will be decided by the same magistrates who will try the case, unlike in the Crown Court there is no clear separation between the judge and jury and that is in contravention of your basic human right to a fair trial. Undoubtedly injustices will continue and may even rise as will miscarriages, ultimately the system will face collapse. The Royal Commission on Criminal Justice was set up on the same day (March 14 1991) as the Court of Appeal overturned the conviction of the Birmingham Six. The overriding concern at that time was a deep and pervasive disquiet about the integrity of a criminal justice system which appeared incapable of preventing abuses leading to the conviction of the innocent.
Even since March 1991 miscarriages of justice have continued to come to light in England and a continuing crisis has been exacerbated by the widely differing views of what is acceptable conduct exhibited by the different organisations that participate in the operation of the criminal justice system. For example lawyers and judges condemn what they see as "oppressive and offensive" interrogation practices yet an "astonished and disgusted" majority of serving police officers see nothing wrong. This illustrates the struggle between "crime control" and "due process" that in the view of some commentators characterises Anglo-American criminal justice systems.
Others see control as predominant and humane values marginalised or merely accommodated but not as being a heavily operative factor in the day business of criminal justice. Realistically policing is a vast array of boring tiresome menial jobs rolled into one, from social worker to animal welfare to community youth worker, one thing it is not, is the prevention or detection of crime that results in the committal of the offender to a custodial sentence. This is a myth allayed by those wishing for harmony within the community. Unfortunately the truth is clear, the police are not at all interested in the truth, they merely want a result. Cases such as Stefan Kiszko, Sally Clark, The Birmingham 6 and Guilford 4 cases and many many more arise and will continue to arise due to the inadequacies of police procedures and the culture within which they are allowed to operate and influence.
Statistics are used to calm and blind the public, six crimes can easily be rolled into one and usually are, criminals are fitted up by detectives needing to clear up crimes within their areas, these are commonly referred to as T.I.C's. If, as it has become blatantly obvious the result is wrong, the tax payer will make amends by way of compensation to the alleged perpetrator who has now become yet another victim. More worryingly though, is the thought that police officers are at least, committing perjury both in written statements and at court to obtain a result that is quite frankly a non result, merely to clear up figures. In short they are creating crime not detecting it or clearing it up.
Victims of serious assaults and robberies are coerced into making negative statements so to avoid paperwork, even if they know their attacker and have named him or her within the fourteen days some forces like to operate within when considering making an arrest. The Crown Prosecution Service which is supposed to be independent is actually perpetuating such blatant abuse of the system by becoming bogged down in trials that should not occur at all. They read and listen to recommendations individual police officers write on the file sent to them. They prefer to prosecute the employed rather than the unemployed, they prefer to prosecute cases that are fundamentally flawed in the hope of the alleged offender accepting a lesser charge for convenience after being dragged to court five or six times only to find the Police have not sent the paperwork through yet again.
Video evidence as introduced within all custody areas is a standing joke within the police service, as is the taped interview. To them it is irrelevant because they won't produce it if it shows them committing crimes within the custody areas, and they do regularly. Breaches of PACE are as commonplace as custodial beatings and rapes in custody. The custody officers remove the tape and replace it, then say it was inadvertently taped over. The whole system is in jeopardy of being raised to sewer level and as members of the public we are all at risk of being dragged down with it. The fundamental principle of the presumption of innocence in the English judicial system or process has been seriously damaged since the Matrix Churchill affair where upon a government was fully prepared to permit the unlawful, malicious prosecution of three men to suit its own needs.
In short it would appear that it is not the principles that have failed us, it is we who have failed them. The Royal Commission on Criminal Justices' 352 recommendations offer little if any likelihood of a reduction in miscarriages of justice. Some of its proposals for evidence corroboration and sentence discounts appear to run the risk of increasing the risk rather than reduce it. The decisions to prosecute is a very significant stage in the criminal process and the 'Shawcross Doctrine' (public interest) should be readily adhered to with greater efficacy, which does not currently appear to be happening thus the system is bursting at the seams quite unnecessarily, which may at some stage result in a system that has descended into apathy.
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