UK: The Royal Commission on Criminal Procedure (feature)
01 July 2003
How are we to make sense of the report of Royal Commission on Criminal Procedure published in July? (1) The Commission was set up in the wake of the release of the Guildford 4 and the Birmingham 6 from long terms of imprisonment, following the overturning of their convictions for terrorist bombings in the early 1970s and various unsuccessful appeals. Even while the Commission was sitting, the line of miscarriages of justice cases grew longer and longer - the MacGuire 4, Judith Ward, Stefan Kiszko, the Tottenham 3, the Cardiff 3, the Taylor Sisters, Ivan Fergus, plus numerous others falsely convicted as the result of misconduct by the West Midlands Serious Crime Squad and Metropolitan Police officers based at Stoke Newington police station in North London.
The original convictions in a number of these latter cases post-dated the Police and Criminal Evidence Act (PACE), which itself had emerged out of the Royal Commission on Criminal Procedure just over a decade ago. They therefore cast significant doubt on the "reforms" of police practices and procedures represented by PACE. More generally, the miscarriage of justice cases had done much to undermine the political consensus over policing that had begun to emerge between the main political parties in Britain from the mid-1980s onwards and opened up the possibility for a more serious challenge to what has been termed the "liberal bureaucratic" ethos that has dominated the British criminal justice system since the 1960s (2).
The Royal Commission on Criminal Justice appears to have carried out no analysis of the miscarriage of justice cases, and it firmly turns its back on any fundamental questioning of the criminal justice system. From the beginning of its report it rejects broad-based, theoretical approaches to reform in favour of what it claims to be "practical considerations". More significantly, the Commission quickly concludes that "the effect of PACE and of Code C (on detention and treatment of suspects in police custody) has been beneficial" and that there has been general compliance with their provisions.
Increasing police powers
Much of the Commission's consideration of police investigations and conduct is in a similar vein, directed toward extending the scope of their powers and activities. The Commission acknowledges the risks of the police conducting interviews with suspects outside the formal confines of the police station and the rules of PACE. But it specifically rejects making such evidence non- admissible in court on the grounds of the unsupported contention that "spontaneous remarks uttered on arrest are often the most truthful" and because such "confessions" and the convictions based on them "might be lost". Instead on-the-street and back- of-police-car confessions are to be legitimised and formalised by extending the PACE codes. The Commission also "strongly support" wider use of video surveillance in public places without even a passing mention of the civil liberties implications this entails.
Under the Commission's recommendations, the suspect at the police station will be at risk of forcible searches of their mouths and the taking of non-intimate samples in a wider range of offences. The taking of samples for DNA purposes will be allowed from all suspects arrested in relation to "serious criminal offences", whether or not DNA evidence is relevant to the particular offence, and the DNA sample will be retained upon any conviction. The police would also be empowered for the first time to continue their questioning of suspects beyond being charged. This latter recommendation is put forward despite the evidence that solicitors often fail to adequately attend or assist suspects even for pre-charge interrogations and the proven risks that extended questioning will significantly increase pressures on suspects to make false confessions.
These proposals only make sense in terms of the Commission's brief to improve the "effectiveness of