Epilogue

John Alderson CBE, QPMⁱ

In our system of justice the police are the agents of the prosecution. They are the first actors in the line of those whose coercive and judicial function affects the suspect, the accused, and the convicted offender.

Police officers’ view of ‘justice’ is conditioned by their experience, which differs profoundly from that of lawyers, judges and administrators. Uniquely, police officers are often witnesses to the anguish and suffering of victims; they know the reputation and suffering of victims; they know, including the previous criminal convictions, of the accused; they labour, sometimes risking their safety, and even their lives, in the cause of criminal justice. Being human they sometimes suffer disillusion when the guilty go free, though in theory they should remain detached. They develop strong corporate loyalties which sometimes exact a high price in rectitude. For example, concern to support their colleagues and their own view of what justice is, can lead and has led to practices of falsely enlarging the evidence to fit the criminal accusation. Much of their work in the investigation of crime is carried out unobserved either by the public, or by their supervisors, and particularly by their most senior officers, whose remote position requires a peculiar strength of influence in order to prevail. Endowed, as they are, with a unique battery of powers over the rights and freedoms of people, they are vulnerable to corruption unless properly constituted, and imbued with adequate protection which flows from an ethical predisposition. They sometimes view the system of criminal justice with a jaundiced eye.

An example of dangers besetting the system of criminal justice in its police context, arises where the investigators become cynical, and in pursuit of what may seem to be justice, or a just end to their labours, resort to unjust means. This can represent a considerable temptation where crimes are horrific, the public alarmed, and where sections of the news media generate phobia. In such cases the whole system from investigators to the judiciary is placed under considerable stress. It is well understood that the road to where the end justifies the means, leads ultimately to the justification of torture, or inhuman and degrading treatment.

The task of the police is to collect the evidence, to support the accusation that a criminal offence has been committed and that it was the accused who committed it. This is not the same as conducting an inquiry into the whole circumstances of the affair, for to do this in every case would far outstrip the resources and expertise of the police. It is at the stage of treating a person as a suspect that the investigator has to avoid allowing a suspicion to become a conviction that the perpetrator of the crime has been identified. Subsequent inquiries may point to another person altogether; meanwhile valuable time and evidence are lost.

Our adversarial system of criminal justice which characterises our mode of trial as a conflict out of which emerges proof of guilt beyond reasonable doubt or not, unsurprisingly also between characterises the investigation. There is a subtle, but important, distinction between an objective inquiry into the truth of criminal behaviour, and the collection of evidence to establish guilt within the system and its rules. The testing of evidence for truth is the responsibility of the courts. The investigator feels that he has done his job when he has delivered what he believes to be a case for the prosecuting authorities to steer through the court to victory.

There are those who see the role of the prosecution, including the investigator, as encompassing a duty of making inquiries for the benefit of both sides. Of course such evidence to help the defence which they may stumble across should be produced for the prosecuting authorities to offer to the defence. They also have enlightened self-interest in checking any alibi, often to disprove it, should it be damaging to their accusations of ‘guilt’. But to suggest that they embark on inquiries to assist the defence may be a theory, but it does not coincide with practice.

Whether or not the stress arising out of conflict between the police and other sections of our system of criminal justice is inevitable, and constructive, may be argued, but stress there undoubtedly is. Reformers should examine the situation carefully, not only for defects of organisation, but also for the stress which arises from these differing experiences and perspectives. The Royal Commission on Criminal Procedure’s report of 1981 spoke of the intractability of many problems with which they had been faced, of how ‘interests conflict’; and of the fact that ‘even those safeguards provided may at times be inadequate.

Police who have arrested a person suspected of serious crime regard themselves as acting in the best of public interests in seeking evidence pointing to the suspect’s guilt to warrant formal charging with the crime. On the other hand, the detainee, whether guilty or innocent, has an interest in the exercise of legal rights. Society as a whole has an interest in procedures being exercised properly, efficiently and justly.

For most detainees, arrest, detention and incarceration can be traumatic. Another problem which may arise from interrogation in police detention concerns people who are innocent of any crime, but nevertheless decide to confess their guilt. This may be due to pressure of interrogation techniques. Psychologists comment, “There are in theory many ways in which a suspect can be led, or lead himself, to the conclusion that a false confession is the most attractive option open to him,” and “Some children are brought up in such a way that confession always seems to produce forgiveness,” (Royal Commission on Criminal Procedure 1979) in which case a false confession may be one way of bringing an unpleasant situation (interrogation) to an end. It is for these and other reasons that the question of access to solicitors by detainees becomes very important and often contentious.

The introduction of a solicitor into the relationship between the interrogator and the detainee certainly complicates the matter. It makes the task of the police questioner more difficult and protracted. An adversary has been introduced, often marking the beginning of the contest as a battle of wits and tactics. The police officer knows that almost invariably the solicitor’s advice to his client will be to say nothing. This declares to the police, “You are making these allegations. It is for you to prove them, for it is no part of the duty of my client to help convict himself.’ Nor is it feasible, from present resources, for a confession to be valid only if validated by the presence of a solicitor.

The question of the power to delay access to a solicitor is set out in S58 of PACE, but remains contentious; and it seems inevitable that it always will, for there is a genuine conflict of interest. Police may only delay (not deny) access, where it is believed, on reasonable grounds (by a senior officer), that exercise of the right to consult a solicitor:

1. will lead to interference with or harm to evidence connected with a serious offence or interference with or physical injury to other persons; or

2. will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or

3. will hinder the recovery of any property obtained as a result of such an offence.

There are a number of qualifications to this power which mark out the uneasy accommodation arrived at between the need to prevent and detect serious crime, and the importance of human rights. If a person decides to take advantage of his right of access to a solicitor (and the police must inform him of this right and record it), there still remains the question of the adequacy of solicitors to deliver it.

The power to put people before the court, without having to convince any other body to do so, was in itself a coercive device, particularly when combined with the notion of a prima facie case to answer. Significantly the CPS abandoned the concept of a prima facie case in favour of the test of ‘a realistic prospect of conviction’, immediately raising the level of proof and abandoning the more coercive and questionable standard employed by the police.

Police find the CPS’ use of powers of discontinuance irksome and frustrating. Termination of proceedings before trial is regarded as a win for the crook. But the former DPP Sir Thomas Hetherington wrote, “Perhaps it is too much to hope that the day will soon arrive when the police regard it as their only function to investigate an offence once it has been committed.” Active detectives are given to expressing the view that some in the CPS are no match for the ‘forensic trickery’ of their counterparts for the defence. It is generally admitted that the CPS was badly under-resourced, and hastily imposed, creating difficulties in attracting career-minded lawyers in some parts of the country, and this in turn leads to allegations of aggravating incompetence. Time, good management and a new sense of identity for the CPS will undoubtedly remove some of these current difficulties, but there is an in-built stress in these relationships which should not be underestimated, and which should be acknowledged and minimised.

Comments emanating from the lower operational police ranks suggest that cases which would have gone forward under the police prosecution system are not going forward under the CPS; too much ‘plea bargaining’ takes place, often due, it is alleged, to economic and managerial convenience, rather than in the public interest; it is said by some police officers that the CPS does not have sufficient regard for, or understand, local sensitivities and problems which police claim to understand.

Yet it is argued by the first DPP to be in charge of the CPS and others, and it seems rational, that if the CPS has the power to discontinue criminal process at any stage on evidential, public policy or other grounds, then the decision on whether to caution offenders should also be determined by it. The police discern just another proposal to diminish their role and status within the system of criminal justice. But the suggestion which generates most reaction is that the CPS should play a gradually increasing role in the investigation process itself.

The Royal Commission on Criminal Justice appointed by the then Home Secretary, Kenneth Baker, following outrageous practices and shortcomings of the entire system of criminal justice, revealed in such cases as the Guildford, Birmingham and Tottenham miscarriages of justice, had to consider:

1. The conduct of police investigations and their supervision by senior officers, and in particular the degree of control that is exercised by those officers over the conduct of the investigation and the gathering and preparing of evidence.

2. The role of the prosecutor in supervising the gathering of evidence and deciding whether to proceed with the case, and disclosure of material, including unused material to the defence.

There is clearly room for change in the business of gathering evidence in criminal cases.

There have been signs over recent years that the police institution has lost a great deal of its reputation for fairness and objectivity. Opinion polls, whilst showing some respect for the police, indicate a steady and continuous decline in public satisfaction. Police appear less sure of their place in the social order, and now the Police Federation, representing all the less senior operational ranks, has joined the call for the appointment of a Royal Commission on the police to set the service on a modern footing. There is much to commend this approach for political, as well as for operational reasons. Meanwhile the police, collectively, have articulated and promulgated their perceived professional common purpose and values. The police statement, among other things, declares its commitment to ‘uphold the law fairly and firmly’ and ‘to pursue and bring to justice everybody who breaks the law’ (which in one form or another means almost everybody is active including the police themselves). If this statement is meant to be taken literally, that they are to pursue and bring to justice everybody who breaks the law, including themselves, it may well bring the whole system of criminal justice to a halt. If it is one of those statements of rhetorical purpose, with a touch of crusading zeal, and an avenging spirit, it may be well-meaning, but it sets an unrealistic social agenda. Apart from laws which remain on the statute book but are obsolete or obsolescent (for example some of the law on drug-related offences, such as smoking cannabis), there remains a whole catalogue of regulatory laws which are honoured in the breach – for example, obstruction of the highway by parked vehicles. Perhaps the statement does not mean each and every breach of the law, but only those laws which create serious offences. But again this presents a minefield of decision-making, choice and discretion.

Modern liberal democracies require much more of their police than a crusading zeal to fill the courts with offenders, however, important that may be at times. There is now a growing moral awareness which impinges on the subject of criminal justice, namely the value of freedom and related human rights which require protection and enhancement, but which the police statement does not adequately address. This may be because in Britain we do not have a Bill of Rights for the police to address, or by way of which to become ‘rights conscious’. Reference to a set of human rights values would reflect the spirit of the times and bring the best of modern policing principles into a new dimension. The basic principles of police in a modern liberal democracy might be couched in the following terms:

1. The protection of human rights and fundamental freedoms.

2. The protection of the institutions of a liberal democratic (in the ordinary philosophical, not the political meaning) government, and of public order.

Under (a) above, the inviolability of the person and peaceful enjoyment of property would be guaranteed. Under (b), all those measures, including security services, required to safeguard the State and public order would be justified. At every step of the police function, including the system of criminal justice, the principles, as enacted and enforced under the European Convention, would influence ethical behaviour. Police action to the contrary would be ultra vires. Police would thus be enabled to see themselves in a positive role as protectors of human values, rather than merely seeing themselves in the negative avenging role which they otherwise may do. This spirit might make its mark on the system of criminal justice whichever form amended police participation might take.

So far as police participation in the investigative prosecution functions is concerned, serious consideration might well be given to a system of recruitment of law graduates directly into the Criminal Investigation Department. As the role of the criminal investigator evolves and becomes more demanding, the need for more highly qualified entrants will be necessary.

However ones views the future for criminal justice and the system, it seems unlikely that it will reach its full potential in the absence of wider constitutional reform. The steady recourse to the European Convention of Human Rights has already shifted the ‘fountain of justice’ in human rights and fundamental freedoms to Strasbourg and the European Court. The police are, and will be, judged not only for what they do and why they do it, but by what they represent what is behind them; what is the source of their legitimacy. Anything which weakens their moral and constitutional stance will diminish their role in criminal justice itself. A Bill of Rights would set an agenda, and a framework, within which the police could judge and be judged.ⁱ