THE TOM SARGANT MEMORIAL LECTURE SITE

THE LORD CHIEF JSUTICE, LORD TAYLOR OF GOSFORTH. WEDNESDAY 19 JANUARY 1994.

May I thank you Chairman for your very kind words of introduction. It is a great pleasure and honour for me to give this 5th Tom Sargant Lecture. Tom was no common "Sargant". He combined a keen sense of justice with a determination, a zeal, to see injustice put right. My memory of him is a vivid image of his large frame, seated at the back of the court, leaning forward, hand cupped to his ear. It was, I felt, not so much that he could not hear but to convey that he could not believe his ears

I was privileged to chair the last lecture in his name which was given by Michael Zander in November 1992. We were then eagerly waiting to see what the Royal Commission would recommend. Now we have not only had their Report but following upon it a Criminal Justice Bill has been presented and is proceeding through the House of Commons. The Bill incorporates a number of the Commission's proposals and the Government has committed itself to adopting in a later Bill recommendations which require further consultation and more detailed provisions.

All too often in the past, Royal Commission reports have been put on a shelf and allowed to gather dust. Whatever other criticisms may be made, no one can accuse the Government of failing to act swiftly in response to this Royal Commission. Indeed, my concern is that we should not move too fast in changing long established major features of our criminal justice system. Consultation and reflection are vital if we are to avoid anomalies and lacunae through ill-considered drafting.

My purpose tonight is to consider some of the immediate proposals and venture some thoughts as to recommendations which may be included in a future Bill,

Before considering individual topics, I want to stand back and look at the main thrust and purpose of the proposals for reform, both those recommended by the Royal Commission and those stemming from the Government's own initiative.

First, I wish to stress that the Royal Commission found the basic framework of our criminal justice system to be sound In particular, it expressed confidence in the adversarial system and rejected suggestions that we should change to an inquisitorial approach. Had that conclusion been reached by a committee of lawyers I suppose the reaction might have been: "Well they would say that, wouldn't they?" But the Commission chaired by Viscount Runciman, a non-lawyer consisted predominantly of non-lawyers distinguished in other fields. I am quite sure they were right. There are always some who think the grass is greener on the other side But those who vaunt the Continental system seem to ignore its many demerits. We have no reason to be proud of the pace at which our cases proceed but on the Continent, proceedings are often protracted for much longer. There is no reason to think that investigations and interrogations on the Continent under the supervision of a magistrate are by that token always free from oppression. Moreover, court systems like political systems, differ from country to country not necessarily because one is better than another but because they have grown out of the particular history of each country and have become part of its ethos. The fact that there are moves on the Continent to adapt to our adversarial system, notwithstanding their long tradition to the contrary, is hardly an encouragement to us to go the other way.

Secondly, whilst the Royal Commission took full account of the miscarriage of justice cases (and i shall return later to that aspect) they concluded that the balance of the criminal trial has become over-weighted in favour of the defendant. A number of their recommendations were designed to redress the balance. Achieving a proper balance is the crucial hallmark of a fair criminal justice system, What is at stake could not be more fundamental. On the one hand, the liberty of the subject; on the other, the public's legitimate interest in convicting the guilty and protecting society against crime. It is inevitable that opinions will differ as to whether any individual measure favours one of those objectives at too great a price in respect of the other. But we should remember and take comfort from the fact that however that balance is struck by statute or rules of procedure, it remains for those trying an individual case to do justice as it seems to them. Thus, in trials on indictment, the judge and the jury have vital roles in seeing that their fine-tuning in the individual case achieves a fair result.

Turning to specific topics, may I start with corroboration- The Royal Commission recommended that the rules in regard to this should be abolished, The Bill before Parliament adopts that recommendation. This topic illustrates very well the conflicting objectives already mentioned. The rules regarding corroboration have been developed to safeguard defendants against possible unreliability of certain classes of witnesses complainants of either gender in sexual cases, accomplices and young children. It might therefore be thought that those who give priority to human rights, especially the rights of defendants, would wish to retain the rules. But, there is a conflict between the defendant' s rights and those of complainants. especially female complainants in sexual cases. It has increasingly been felt that to require corroboration of complainants in rape or indecent assault cases on the grounds that they may lying or fantasizing is offensive to them.

The Government has accepted this view. On the other hand, it has been urged that there should be a new rule requiring corroboration of confessions. The Royal Commission rejected that suggestion and I agree with them. Whilst it is true that in Scotland some support is required for an otherwise bare confession, the nature of the support required has been devalued as compared with corroboration in English law, so that the Scottish requirement hardly amounts to a substantial safeguard. Moreover, there are many cases in which perfectly voluntary and straightforward confessions are made whose reliability cannot seriously be challenged. To require further evidence would at the least, increase the cost both in money and in manpower of the investigation process: but in many cases it would result in a self-confessed criminal walking free.

In practice, the corroboration rules have become more and more technical and arcane; less and less in accord with common sense. Explaining them intelligibly to juries has become difficult. I therefore agree with the Royal Commission's recommendation and am glad the Bill reflects it.

The problem the courts will now have to face is what approach should be adopted in future where corroboration would in the past have been required. There will be cases in which some warning of a special need for care may be needed. That will be for the discretion of the judge. No doubt there will be appeals complaining of the absence or inadequacy of such warning. It will not be easy for the Court of Appeal to give guidance to judges as to when and how strong a warning is required without introducing a new form of corroboration as rigid as the last.

Probably the most controversial clauses in the Criminal Justice Bill are 27 - 30 inclusive, concerning the right to silence This is especially so since the Royal Commission recommended by a majority that no change should be made to the existing law. However, the proposals in the Bill are not new nor are they without a respectable genesis.

In 1972, the Criminal Law Revision Committee made very similar recommendations for change to those proposed in the present Bill. Indeed, the Committee drafted a Bill in terms almost identical with those presently before Parliament. The members of that Committee were men, not only of the highest calibre, but of liberal views, The Chairman was Lord Edmund Davies and others included Finnemore J, Lawton LJ and Professors Cross and Glanville- Williams.

In 1988, the Criminal Evidence (Northern Ireland) Order introduced a regime in Northern Ireland which closely followed the draft Bill suggested by Lord Edmund Davies' Committee. I believe it has been operated successfully in that jurisdiction. The Home Secretary, then Mr Douglas Hurd, when making the Order, committed the Government to introducing similar provisions in England and Wales. So, although the present Bill does not follow the recommendation of the majority of the Royal Commission, it has not been suddenly conceived as a perverse response to the Commission, It simply implements the commitment given in 1988.

There are two distinct aspects to the Right to Silence. One relates to the defendant's choice whether to testify at his trial. The other concerns his response to questions from the police. It is, I: am sure, well recognised by everyone present here, that what is at issue in each of these aspects is not truly the right to silence, But it needs to be re-affirmed that there is no proposal to force a defendant to testify nor to answer police questions. The right to silence remains. The issue concerns the right to comment on a defendant's silence.

Dealing first with his silence at the trial, I believe that with suitable safeguards comment should be allowed. I understand that view to be accepted not merely by the Government and most serving judges but by the opposition spokesman, Mr Blair, and by Lord Scarman whose liberal credentials are impeccable. When a prima facie case has been established by the Crown, and the defendant fails to testify, I see nothing unfair in the jury being told it is open to them to draw a proper inference from the absence of any answer by the defendant. Indeed that accords with commonsense. The burden of proof remains on the prosecution to prove its case, but if they establish a case to go to the jury. that means that a reasonable jury properly directed, could convict unless there is an answer, it is sensible that the jury may take account of the fact that no answer has been given by the defendant to draw the inference, if they think it right, that there is no answer. Whilst therefore, that will often be the inference the jury will draw, there will be cases in which the judge will direct the jury or the jury may decide of their own accord that an adverse inference ought not to be drawn. For example where there is a very young defendant or one with low intelligence or one, who for some other reason, is peculiarly vulnerable.

It should be stressed that there is no danger of a defendant being convicted solely and simply because he has not testified, Unless the prosecution have raised a case upon which without more the jury could convict, the question of whether the defendant will or will not testify would not arise. I would also stress, that it will be open to 5 judges and it will be their duty to consider on the merits of each case whether any adverse comment should be made and what the strength of it should be.

However, there is one clause in the Bill which seriously troubles me and other judges. I refer to clause 28. That provides that unless the judge considers the physical and mental condition of the accused makes it undesirable for him to be called, or the court is told that he will give evidence, a mandatory obligation is placed upon the judge as follows, He "shall tell the accused that he will be called upon by the court to give evidence in his own defence and tell him of the inferences that can be drawn if he refuses to be sworn or without good cause refuses to answer any questions." The section goes on "and thereupon the court shall call upon the accused to give evidence" I appreciate that this provision is based almost verbatim on the draft Bill of the Criminal Law Revision Committee. I also appreciate that its terms are identical with those in the 1988 Northern Ireland Order. Nevertheless, I: am concerned that it may well produce undesirable and unfair results.

If a judge calls upon a defendant to give evidence and warns him of the consequences of refusing to do so, the jury may well regard a decision not to testify as showing the defendant is defying the judge. To speak of the defendant being "called upon" by the judge to give evidence does not lie easily with the principle, still intact. despite the proposed power of adverse comment, that the defendant has a free choice whether to give evidence or not, Moreover, a request for the judge to call on the defendant to give evidence tends to introduce an inquisitorial element into the judge' s role. Where a defendant is represented, it should be a matter for his counsel to explain to him what the options are at the end of the prosecution case and what the consequences may be, if he declines to give evidence. The defendant's lawyers will know all of this; they will have explained it to the defendant. For the judge to explain it again will be otiose. For him to follow his explanation with the dramatic phrase "I call upon you to give evidence", amounts to an unnecessary piece of ritual procedure. The impact on a jury of a defendant's silence after that call from the judge may well be more adverse than any carefully phrased comment the judge may later choose to make. Indeed, he may in his summing-up, having heard counsel's speeches, choose not to make an adverse comment at all or even to enjoin the jury not to draw an adverse inference.

I accept that different considerations will arise if a defendant is unrepresented. It has always been the judge's duty. in such circumstances. to explain to the defendant at each stage of the case the next steps in the trial procedure. If a prima facie case has been raised, the judge addresses a defendant in terms telling him: "Now is the time for you to make your defence. You may go into the witness box, and give evidence on oath, and be cross- examined like any other witness and afterwards you may also, if you so choose, address the jury as well. You are entitled to call any witness whom you desire to call in support of your defence". Clearly, the new provisions will require that formula to be adapted so that the judge does explain to the unrepresented defendant what may be the consequence if he does not testify. But there is a world of difference between telling an unrepresented defendant "You may go into the witness box" and a judge telling a defendant who has a lawyer to advise him whether to testify or not, "I call upon you to give evidence". Up to that point in the trial, the jury would have perceived the judge's role as a fairly passive one, simply holding the ring and leaving the conduct of the case to the adversaries. Suddenly, for the first time, the judge addresses the defendant directly in what will seem to be peremptory terms.

For these reasons, I hope that clause 28 may be reconsidered.

I turn to the defendant's silence when questioned by the police. This, I know, is a more controversial topic than silence at trial. It is suggested that no adverse inference should be drawn from a refusal to answer police questions at least until the prosecution case has been clearly indicated to the defendant. I have sympathy with that view. But it is important to look closely at the limited scope of the proposals in clauses 27, 29 and 30 of the Bill. They do not provide for a general blanket right to draw adverse inferences from silence under police questioning. Such inferences are only to be permitted in the three special circumstances laid down by those three clauses. Section 27 allows proper inferences to be drawn where a defendant relies at trial on a fact which he has failed to mention under police questioning and which he could reasonably have been expected to have mentioned at that stage. In my view, that is entirely reasonable. An example may help. The defendant is charged with being knowingly concerned in the importation of cocaine. He is arrested at an airport where he has gone to meet a co- defendant charged as the courier. He says nothing to the police. At trial, his defence is that he had gone to meet someone he believed to be bringing in a silver wedding present for his parents from a relative abroad. Surely that is a fact which an innocent man would reasonably have been expected to put forward. instead, it emerges at a stage when no investigation can be made of the feasibility of the story.

Section 29 permits a proper inference to be drawn if, when he is arrested, the defendant has any object in his possession or any substance or mark upon him or his clothes giving rise to a reasonable belief that it is attributable to his involvement in the offence specified and he fails to account for its presence. Again, surely a reasonable provision, Suppose an officer arrests a man carrying away from a house hi-fi equipment belonging to the householder- He declines to say why he has it. At trial his account is that the householder lent him the equipment for a party he was holding that evening. An innocent man questioned in those circumstances would surely have advanced the explanation straight-away. If there is any good reason for not advancing it at the scene, the jury will have the opportunity to consider that reason before drawing an adverse inference.

Section 30 allows proper inferences to be drawn from the silence of a defendant who is arrested by a constable at a place and time reasonably suggesting that he is there because he has committed the offence under investigation. A girl is raped at a student hostel. The police come and find the defendant in the grounds of the hostel, He gives no explanation of his presence there, At trial he says that he had been working at the hostel, he had left his ladder at the rear of the premises and was returning to collect it for his next day's work elsewhere. It is, I suggest, absurd for the jury to be told that his failure to mention that fact at the scene is something they should not take into account and in reality, if the jury is told that, are they going to be able to follow the direction which will seem to them repugnant to commonsense?

In regard to these three clauses, as with silence at trial, it will of course be open to the judge in the circumstances of a particular case, to enjoin the jury not to take an adverse view of the defendant's silence. He may do that because of the personality of the defendant or because of the particular circumstances of the investigation- But subject to those safeguards, I do not think the proposed measures are unfair. On the contrary, think they introduce an element of commonsense and realism which has been sadly lacking hitherto.

It must be remembered that the protection of a defendant's rights when questioned by the police has been greatly strengthened by the Police and Criminal Evidence Act 1984, and the review of police procedures, in training and discipline which has followed the recommendations of the Royal Commission and the miscarriage of justice cases has greatly altered the balance so as to achieve fairness to the defendant.

Closely related to these provisions, are the recommendations of the Royal Commission about disclosure. By requiring the defence to disclose in general terms the nature of its case before the trial starts, the Royal Commission seek to prevent "ambush" defences. They also aim to define and narrow the issues so as to shorten trials and clarify for the jury what they have to decide. Disclosure should not be one way traffic with a burden on the prosecution not only to disclose its own case, but to anticipate all possible defences and disclose a mass of unused material on the off chance that some of it may prove to be of assistance to the defendant.

The very wide duty of disclosure placed upon the prosecution by the decision in the Judith Ward case is clearly and understandably a response, not only to that case, but to other miscarriage cases where years after the event, it has emerged that material which would have been helpful to the defence was not disclosed. No one now can doubt that there must be adequate rules to ensure that material which may be helpful to the defence is made available to them. However, the one-way traffic of disclosure by the prosecution with no corresponding duty on the defence, has given rise to grave difficulties both for the CPS and for the courts. There are problems both in regard to the bulk of the material to be considered for disclosure and in some cases to the sensitivity of some material. The prosecution often have to anticipate what may conceivably be of assistance to the accused without any help from the defence side so as to narrow the field. Indeed, there are often more and more searching requests by the defence for material on a purely speculative basis. In regard to documents attracting public interest immunity and especially to information about informants, a trend has developed of seeking by requests for disclosure, to manoeuvre the CPS into having to abandon prosecutions. The defence of duress, which used rarely to be raised, has suddenly become all the vogue and is used to seek disclosure about informants which if given, would endanger them. Courts are being required to peruse large quantities of documents and judges, instead of being in court, are sitting in their rooms to decide what disclosure is to be made, This is an unacceptable state of affairs. It shows the balance in this area has become distorted.

The Royal Commission has recommended a two-stage procedure for disclosure.

I think I. should quote from the Commission's Report at Chapter 6, paragraphs 49 to 50.

"We strongly support the aim of the recent

decisions to compel the prosecution to disclose everything that may be relevant to the defence's case, but we accept the evidence that we have received that the decisions have created burdens for the prosecution that go beyond what is reasonable. At present the prosecution can be required to disclose the existence of matters whose potential relevance is speculative in the extreme. Moreover, the sheer bulk of the material involved in many cases makes it wholly impracticable for every one of what may be hundreds of thousands of individual transactions to be disclosed.

In our unanimous view a reasonable balance between the duties of the prosecution and the rights of the defence requires that a new regime be created with two stages of disclosure. The first stage, of primary disclosure, would, subject to appropriate exceptions, be automatic. The second stage, of secondary or further disclosure, would be made if the defence could establish its relevance to the case. Where the prosecution and defence disagreed on this aspect, the court would rule on the matter after weighing the potential importance of the material to the defence"

The Commission then went on to explain what they included in primary disclosure.

I strongly support this proposal. It goes hand in hand with recommendation 134, that the defence should be obliged in advance of trial to disclose the substance of their defence. I hope that when the detail of these proposals can be formulated into statutory provisions, they will achieve a fairer balance than exists at present.

I know there are some who believe that recommendation 134 for the disclosure of the defence case should really have been in the present Bill and that it would be sufficient to prevent an ambush at trial without enacting clauses 27, 29 and 30. For the reasons I have already given, I: do not believe that recommendation 134 obviates the need to allow comment on silence at the investigation stage in the three respects allowed by the Bill. I believe and hope that the failure to implement the Royal Commission's recommendation 134 in the present Bill is due solely to the fact that the detailed provisions it will require need careful and considered drafting. It was a fortunate circumstance that the Government had already planned a Criminal Justice Bill to be launched this winter in order to enact certain provisions regarding young offenders and bail. It has enabled some of the more straightforward recommendations of the Royal Commission to be implemented very swiftly. But, as I have already said, it would be a mistake to rush into legislation on complex and finely balanced issues only to have to unravel a hasty enactment next year I therefore hope that the recommendation for defence disclosure and for the two-stage prosecution disclosure may be brought in by a later Bill.

Those observations apply par excellence to the proposal for a Criminal Cases Review Authority. There have been criticisms of the Government for not including that recommendation in the current Bill. But here, what is contemplated is entirely novel. It is of the greatest importance that it should be soundly based and thoroughly thought through. This is the most important single change proposed by the Commission with a view to preventing or at least speedily rectifying any miscarriage of justice, It is not the only measure aimed at achieving that result.

Perhaps of equal importance is the cluster of recommendations in chapter 2 of the Report concerning the training of police and the supervision of investigations. They may not, read individually, make a dramatic impression but, taken together with the Police and Criminal Evidence Act and the recommendations about disclosure, preparatory hearings. forensic science evidence and the Review Authority they make a formidable combination of measures against possible miscarriages of justice.

Returning to the last item, the Review Authority, much detailed work is required to determine its constitution, membership, staffing, resources and procedures. Its inter- relation with the Court of Appeal and the functions of the Court of Appeal on receipt of a reference also need careful definition. Is the Court to have power to refer an appeal to the Authority if it considers further investigation or probing is required? Ought a prisoner to be able to approach the Review Authority before he has exhausted his rights of appeal? Should the Court of Appeal on a reference by the Authority, have its own counsel in addition to the Crown being represented? All of these and many more issues Still need to be thought through. I do not therefore support those who criticise the Government for not having implemented this recommendation in the present Bill. There is a commitment to implement it and I hope that the necessary work will have been done so as to enable this recommendation to be incorporated along with other recommendations requiring further thought in a further Bill next year. A consultation paper is being issued so that ideas and views from outside the Home Office as well as those from within can be considered.

In the limited time available this evening, I can only touch on a number of other issues. The first is the question of sentence discounts and sentence canvassing, both of which were favoured by the Royal Commission. must confess both of them trouble me. The recommendation that sentence discounts should be "more clearly articulated with earlier pleas attracting higher discounts" has led to suggestions that specific percentages should be promulgated for discounts at the earliest stage, at an intermediary stage and at the last ditch stage. I do not favour this. Sentencing is a complex procedure in which there are many factors bearing different weight from one case to another. Imposing rigid requirements across the board not only makes the judges task more difficult but is more likely to result in anomalies and injustices. It is sufficient I think for the courts to repeat as has already been said many times, that a discount should usually be allowed for a plea of guilty and that the extent of the discount will usually reflect the stage at which the plea of guilty is entered. Whether the defendant was caught red-handed, whether he only pleaded guilty after a terrified complainant had attended court expecting to have to give evidence. the circumstances of the offence amongst other factors may be very relevant to the measure of discount allowed. I would not object to a statutory provision requiring the judge to have regard to the plea of guilty and the stage at which it was entered but otherwise the matter should be left to his judgment,

As to plea canvassing, I have already expressed my reservations on other occasions and will not repeat them here. Suffice it to say, I think that the strong court in the case of Turner which included two of my predecessors, Lord Parker and Lord Widgery, and forbade approaches to the judge save in exceptional circumstances, knew very well what it was doing and had good reason to do it. However, I appreciate that a different view is taken by many judges.

I think that the recommendations of the Commission with regard to preparatory hearings will be a valuable improvement to our trial procedures. What matters is the extent to which lawyers treat preparatory hearings seriously and are committed to making maximum use of them. At present, far too often, they are simply an occasion for stalling so that the essential issues and decisions are put off for as long as possible. In my view there is one crucial change which could be made now even though the detailed provisions as to preparatory hearings may have to await the next Bill. That single change would provide that the trial commences with the first preparatory hearing. The effect would be that any-decision made in a preparatory hearing would be a decision in the trial. It could not be re-litigated. It would therefore concentrate the minds of the lawyers at an earlier stage. It would also avoid the present absurdity of having to swear in a jury and then send them away for days whilst legal issues are discussed which could have been disposed of much earlier. I believe this single provision would go far towards cutting down the number of late pleas which presently add to the delay and cost of criminal proceedings. If we could achieve a reduction in late pleas by that and other methods, the urge to cut down the right to jury trial would be diminished.

I wish to sound a note of caution on a recommendation which has, so far, received very little attention outside the academic community. It is the very first recommendation put forward by the Royal Commission, namely that the Contempt of Court Act should be amended to enable research to be conducted into juries verdicts. This may sound innocuous enough and indeed it can be argued persuasively that the veil should be lifted and we should know whether juries really are doing a good job or not.

However, I believe that the proposal carries grave risks. If any scheme is to be introduced, I think it should be carefully monitored by the Lord Chancellor and should preferably be conducted by his department.

It is of fundamental importance that the present confidentiality which attaches to jurors names and in particular to their addresses is maintained. We must be vigilant to ensure that individual members of the public performing one of their most important civic duties do not feel that their well-being or that of their families is being put at risk by the unwarranted disclosure of personal information to third parties.

Finally, not all the recommendations of the Royal Commission require legislation. Some can be implemented by the judges themselves. I am pleased to report to you that the judiciary, through the Judicial Studies Board, under the chairmanship of Lord Justice Farquharson, has been working on the detail of a number of the recommendations which call for the more effective use by judges of their existing powers and discretions. For example, ways in which judges by being more interventionist, can prevent the possibility of the trial being protracted by irrelevancies, repetitions and prolixity. Also, through costs sanctions, ways in which judges can minimise delays and deter lawyers from delays in the future.

Many of these non-legislative recommendations simply underline practices which judges already follow but certain of them are new and others underline the availability of options rarely used. For example, the power of the judge to call a witness himself, the power to admit written documents without supporting oral evidence, inviting an expert witness to add anything he may wish to say before leaving the witness box, telling the jury of their rights to ask questions or to take notes during the trial. A compendium of recommendations approved by the Judicial Studies Board will be sent to every full-time and part-time judge this week and it will figure in future programmes and seminars on criminal law and practice.

I fear, Mr Chairman, I have been able to review only a small part of the field covered by the wide ranging report of the Royal Commission and indeed only selected provisions from the current Bill, hope however that I have addressed the issues which are currently of most concern. I am conscious that not all that I have said will be music to all the ears present tonight. I take comfort, from the fact that I have not seen anyone hand-cupped to ear in the Tom Sargant position. But I am sure I have said enough, probably more than enough to provoke some observations from the floor, Thank you for listening to me and I shall do my best to answer any questions.

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