Fair trials – are they still possible?

I started my legal career a little under 20 years ago and in those early days I had an almost exclusive prosecution practice. I was a good prosecutor. I played fair but always hard. It was only when my opponent Lawyers begun to approach and asked me to start to defend some of their clients in criminal trials rather than prosecute them that I took to defence work. I now defend clients exclusively although my prosecution experience has proven to be invaluable.

In those early days, it was very rare that I left Court feeling that the trial wasn't a fair one, whether I defended or prosecuted. It was always commonly accepted and applied that the burden of proof remained firmly on the Prosecution and the only real concern for the court was simply to observe and listen to the evidence of the witnesses both for the prosecution and defence, and then to decide the issue of guilt beyond all reasonable doubt. As a prosecutor, I was always very keen to remind the court of the fact that the prosecution had to prove its case, and that the defendant did not have to prove his innocence. As a criminal defense lawyer defending cases, I would always hammer home how important a principle this was- the 'golden thread' of justice.

How things have changed all these years on! Being a criminal defence lawyer these days is about the 'inclusion' rather than the exclusion of evidence. In almost every trial nowadays there are issues to deal with over and above the evidence. Cases are now overburdened with procedural responsibility, prosecutors looking to introduce unfair and highly prejudicial bad character evidence, prosecutors failing to recognise the dangers of allowing the jury or magistrates to observe hearsay evidence. The list is endless. The trial process is no longer a fair one and almost every trial suffers from a system designed now to ensure that cases are dealt with quickly rather than, in my view, justly and fairly.

The Criminal Procedure and Investigations Act 1996 (CPIA) is what for me began the gradual erosion of fairness in criminal proceedings. At the beginning of my career, a person suspected of having committed an offence could quite rightly decide not answer questions in an interview under caution without running a risk of criticism at trial. Today, although a suspect is reminded that he or she has the right not to answer questions, that is followed by a warning that by refusing to answer questions, an adverse inference can be drawn for any unreasonable failure to mention a fact which, at trial, is later relied upon. This means that at trial the prosecution can invite the jury or magistrates to conclude that any evidence given at trial has been made up or is otherwise less capable of belief. If this wasn't bad enough, the Appeal Courts have stressed that a defendant cannot avoid an inference being drawn just because his/her legal representative advised not to answer questions. Similarly, defendants who now don't give evidence at trial run the risk of the court drawing an adverse inference about the failure to rebut the allegations being made. This means that although the jury or magistrates will be reminded that they cannot convict a defendant simply because he or she does not give evidence, you can see how when being told that they can in some way hold it against a defendant that a jury or set of magistrates will do so.

Of further concern is the way in which police and prosecution evidence is disclosed. The Police investigate criminal offences, the Crown Prosecution Serive (CPS) prosecute those offences on behalf of the Police. Under the CPIA, the police (the very people who least want a defendant to be acquitted) provide the prosecution with what they believe is the evidence against a defendant. It is the police who initially decide what is relevant and what is not, and the police who initially decide what the prosecution get to see. Other 'evidence' (evidence can be described loosely as all the information during an investigation) obtained by the Police but not being relied upon is placed on to what is known as an 'unused schedule.' It goes against the instincts of fairness and justice, but it is the police who initially decide what evidence gathered is given to the prosecution, and often highly damaging information is not passed on to the prosecution. Even more unfairly, defendants are often procedurally not entitled to see such information unless and until the full defence case is disclosed. Defendants in the crown court are now obliged to disclose their entire case in advance in a defence case statement. This never used to be the case. Is this truly fair? I don't believe so. Only once the prosecution and police have been told what the defence case is will the prosecution further review the evidence and then disclose material which is deemed capable of undermining the case for the prosecution or assisting the defence. In other words, the police and prosecution can hold evidence back which on the face of it is damaging to the prosecution case, but will only disclose it if a defendant first discloses his or entire case.

It once an established principle that an accused person ought to be entitled to face his/her accuser in court without restriction. The introduction of the 'special measures' provisions for witnesses has changed the way witnesses' evidence is presented in court. Witnesses are now allowed to hide behind screens, give evidence from outside the Courtroom, have recordings of their evidence played to the court initially and in rare cases, have voices distorted so as to disguise their identity. Although I strongly oppose these measures for adults (with few exceptions), I do feel that such measures are fair when dealing with children and truly vulnerable witnesses. We have an adversarial system; it is not supposed to be easy or pleasant to give evidence - that is one way we get to the truth.

Prior to the Criminal Justice Act 2003 (CJA 2003), a defendant facing trial was protected from a jury or magistrates finding out about bad character or previous convictions, subject to a few exceptions (e.g. where the defendant through his lawyer attacks the character of a Prosecution witness). The reasons for this were well founded; learning of a defendant's previous conduct might cloud judgement and place too much focus on the previous character and use it to convict rather than simply focusing upon the evidence before the Court in relation to the offence(s) before it. The system protected defendants from court saying 'well, he's done it before, he must be guilty.'

Those centuries of fair practice were undone by the CJA 2003. The Courts now routinely allow prosecutors to introduce 'bad character' and this is not restricted just to pervious convictions. It can be any previous conduct regarded as 'reprehensible behavior.' And although the court has a discretion to prevent the prosecution from introducing such highly prejudicial evidence, the Court of Appeal rarely interferes with convictions where bad character has been admitted. Although the prosecution are not supposed to try and bolster weak cases by seeking to introduce evidence of bad character, they often do.

It is simply not possible to list everything which has, over the years, eroded the principle that someone facing criminal prosecution is 'innocent until proven guilty.' Most defendants nowadays facing trial would feel that they must instead try and prove that they are innocent. It really is unfair.

What is the answer? Well, the answer is when facing criminal prosecution to instruct lawyers who recognise this obvious unfairness. Instruct lawyers who will fight prosecution applications to introduce bad character and hearsay evidence, or who look to withhold evidence. The answer is to instruct lawyers who object to evidence that is capable of challenge and object to anything that creates general unfairness.

Wells Burcombe's criminal defence solicitors and barristers have extensive criminal trial experience. We are instructing daily to review convictions where things went wrong during the trial process. Contact us today to discuss your case.