Thursday, 26 June 2008

Thou shalt not know thine accuser

What is the presumption of innocence? That's a nice simple question with a nice simple answer - it is the presumption that a defendant in court is entitled to be acquitted unless the prosecution proves his guilt. That is fine as far as it goes, but it does not tell the full story because the presumption of innocence is one of a web of important principles developed over time to ensure the fairness of criminal trials.

The starting point is for the country to decide when, as a matter of general policy, it is right for someone to face a penalty for having behaved in a particular way. The policy we have adopted historically is that a penalty can be imposed if, but only if, three conditions are satisfied. First, the conduct complained of must infringe the law; secondly, the State must prove that the accused committed such conduct and, thirdly, the process by which the State tries to prove its case must be fair.

There have been numerous assaults on all three conditions over the last 11 years and the future under our current government promises even more.

Let us start with the first condition - someone can only be at risk of a penalty if his conduct infringes the law. What could be simpler than that? No one needs to consult a solicitor to know that it is against the law to shoot someone in the head, take a pork pie from a shop without paying, forge a bank note or make threats to extort money. That these and many other acts are crimes is something we learn with our mother's milk, but how are we meant to know about the thousands of new offences created by Ministerial implementation of obscure powers contained in the bowels of even more obscure Statutory Instruments? Sometimes it is practically impossible even for lawyers with access to complex computer reference libraries to discover that a regulation is to be brought into effect until after the event. "Ignorance of the law is no excuse" has been a necessary principle in ensuring that everyone is subject to the same rules, but if even those with the best research tools cannot find the new law the scope for unfair convictions is increased.

The second condition is that the State must prove that the accused committed the act complained of. It is at this stage that the presumption of innocence is normally mentioned - the case, it is said, must be proved beyond reasonable doubt. A little known but perfectly fair exception arises where the defendant relies on an excuse in the Act of Parliament invoked against him. For example, if an Act says "It shall be an offence to assault the Pope with a cucumber unless you have attended a Ken Dodd show within the preceding 24 hours", the prosecution needs only to prove that the defendant assaulted the Pope with a cucumber. The onus is then on the defendant to establish that he attended a Ken Dodd show at the necessary time. If the burden to disprove the excuse fell on the prosecutor it would be an unfair burden because it would be simple for the defendant to establish the defence but almost impossible for the prosecution to disprove it. In other words a balance is struck for good reason. If the prosecutor cannot show the assault, the exception doesn't come into play.

That is all very well because in that example there is a trial. Sadly, we have become accustomed to all sorts of penalties being imposed without trial and, in particular, to the Penalty Charge Notice.

Let us go back a few years. PC Plodd is walking the beat and sees you pull your handkerchief out of your pocket and accidentally dislodge a toffee wrapper which drops silently to the pavement. PC Plodd says "excuse me sir, would you mind picking up your litter, thank you so much" you turn around, he points out the offending wrapper and smiles, you pick it up, apologise and put it in the bin. He could have said "under section so-and-so of this or that Local Government (Miscellaneous Provisions) Act I have reason to suspect you have committed the offence of littering the Queen's highway and will invite the Magistrates Court to issue a summons". But he has more sense than that; he knows not only that it will reduce the chance of you picking up the toffee wrapper but also that it would bring law enforcement into disrepute for him to be heavy handed over something so petty when a quiet word will do the job.

What would happen today? Fortunately many a PC Plodd will do exactly what their predecessor would have done, but all too often it will not be PC Plodd who is on the scene but a Council "Enforcement Officer" with a financial incentive to issue a Penalty Charge Notice, 80 quid thank you, 40 if you pay within seven days. And then there is the real problem, a Penalty Charge Notice can come through the post a week later because the dropping of a toffee paper has been spotted on CCTV and someone says it is you. Even if you were to take the trouble to make an appointment to view the footage you might not be sure it really was you or even where you were at the date and time in question. It is still £80 or £40 if you pay within seven days. You can appeal under threat that an appeal loses you the 50% discount for early payment. You can take it to court but the court can fine you up to £2,000. Some will take their challenge as far as their pockets will stretch, many others would rather be fleeced of £40 than £80 or more so they give in and bear a grudge. No sufficient proof exists to satisfy a court but it is less trouble and less risk to give in than to fight. The vice is in the grudge.

What about the third stage? This is the need for the process of proof to be fair. It does not seem to occur to our government that the judges have been honing the law of evidence in criminal trials for centuries. Shelves in law libraries groan under the weight of rulings by which the judges have detected potential problems and suggested solutions, then abandoned the suggestion if it did not work and replaced it by something else, then developed and improved that new solution; and all with a view to ensuring that the innocent are not convicted. I stress the final phrase of that sentence - it is all about ensuring that the innocent are not convicted. That some guilty men will walk free is an inevitable consequence of a system which is fair to the innocent. It is also inevitable that some truly dangerous rogues will walk free. But that is a price which must be paid if we are to ensure that many more completely innocent people will also walk free. Every inroad made into the protections given by the law of evidence will be to the prejudice of the innocent.

A few days ago the Law Lords ruled against allowing witnesses' identities to be hidden from the defendant. In the leading judgment Lord Bingham said the risk of witnesses not coming forward through fear "is not a new problem ... but it is a serious one. It may very well call for urgent attention by Parliament." Jack Straw interpreted this as an invitation to introduce knee-jerk legislation. I predict it will be worded broadly so that the government appears tough on the bad boys, this will be bad law.

The extract I have cited from Lord Bingham's judgment omits thirteen words which change the whole meaning from an invitation to a warning, the full quotation is: "This is not a new problem (it inspired the procedures of the Inquisition and the Court of Star Chamber), but it is a serious one. It may very well call for urgent attention by Parliament."

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