UK: Creeping towards a police state
01 May 1995
When the chairman of the Criminal Bar Association claims that "We're in serious danger of creeping down the road towards a police state", as Richard Ferguson QC does, we should listen. The Labour opposition front bench nodded through the abolition of the right to silence last year and now claim the credit for proposals announced in May by Home Secretary Michael Howard for mandatory pre-trial defence disclosure of its case, including names and addresses of witnesses, while the prosecution's duty of disclosure is to be further lightened.
The celebrated miscarriage of justice cases of the Guildford Four and Judith Ward hung on failure of the prosecution to disclose evidence which helped the defence: corroboration of alibi evidence, for example. In the aftermath of these cases the prosecution was told it must disclose all documentation relating to a case to the defence. There were immediate protests from senior police, who claimed that they would have to withdraw cases rather than disclose all the background material. In the case of the M25 Three, the Court of Appeal began to retreat from the duty of total disclosure, and set out a system where a prosecutor could see a judge in an private hearing to argue for non-disclosure. The 1993 Royal Commission on Criminal Justice, set up to prevent further miscarriages of justice, went the way of its predecessors, recommending more rights for prosecution, fewer for defence, including a narrower duty of disclosure on the prosecution, which was to depend on specific requests by the defence.
What Howard's proposals would mean, however, is that prosecution documents need never be submitted to the Crown Prosecution Service by the police. They would be obliged to disclose to Crown lawyers only those documents which they believed relevant in the light of the defence disclosure. Thus, the burden of proof is effectively reversed. As Ferguson says, "Traditionally, one could rely on Labour to oppose such measures. But now, obsessed as it is with being seen as the party of law and order, there is a danger that this will not be tested in parliament at all".
Independent 20.4.95; Observer 21.5.95