18 Criminal Justice on Trial
A PERSON’S CRIMINAL liability is precluded from the findings and determination of any public inquiry. It is a matter exclusively for courts of law. The mode of trial is the term used - in Western Europe, the trial is to seek the truth surrounding the criminal event; in England it is generally not the ‘truth’ that matters.
The question is whether on the evidence adduced in the courtroom the prosecution has proved its case beyond a reasonable doubt. The truth about the criminal event is normally inferred from a proven offence. What happened, then, if a criminal trial had produced a miscarriage of justice left uncured by the national appellate system?Uniquely at that time, in 1975, the Home Secretary, Mr Roy Jenkins and the Attorney-General, Mr Sam Silkin QC (in differing ways, two outstanding politicians of their day) ordered an inquiry into the circumstances leading to the conviction (later quashed by the Court of Appeal) of two of three boys charged with the unlawful killing of Maxwell Confait, a transvestite homosexual living in a house in Lewisham, south London, and the arson of the premises, following the homicide. The quashing resulted from the disputable timing of the cause of death. The inquiry, which reported in December 1977, was conducted by Sir Henry (‘Harry’) Fisher (son of a former Archbishop of Canterbury), a lawyer of high distinction who, after a short time as a High Court judge, had resigned and, much to the overt displeasure of the legal establishment, went into investment banking in the City of London, and later became the Master of Wolfson College, Oxford.
The ensuing report[185] was a masterpiece of legal analysis of English criminal procedure that led up to the Royal Commission on Criminal Justice (the Phillips Commission) and the historic reform in the Police and Criminal Evidence Act 1984, known in legal circles, affectionately, as PACE.
(It did indeed produce outstandingly a vital reform, successful in altering police investigation.) The three boys had been found guilty as a result of confessions that they had made after extensive police questioning, without any independent person present at their interrogation. The three boys were Ronnie Leighton, then aged 15, who was clearly of limited intelligence; Colin Lattimore, then aged 18, who was mentally handicapped; and, third, a young (aged 14) Turkish-Cypriot boy called Ahmet Salih. At their trial in November 1972, Lattimore was convicted of manslaughter on the ground of diminished responsibility; Leighton was convicted of murder. All three were convicted of arson. The Fisher Report states:[186]I make criticisms of the way in which the boys were interrogated and the statements taken. But despite these criticisms, I conclude that the record is in all material aspects substantially accurate, and that (apart from that part of the confessions which relates to Lattimore’s participation in the killing) the answers and statements are substantially true. The answers could not have been made and statements given as they were unless at least one of the boys was involved in the killing and arson. If that conclusion is correct then it is not controverted by the fact that the story told is bizarre and improbable; it could be controverted only if there were factual evidence inconsistent with the truth of the statements which (apart from Lattimore and the killing) there is not.
The case for the prosecution (which never wavered) was, from the outset, that Leighton and Lattimore had jointly administered a ligature to Confait’s neck and killed him, while Salih had stood in the doorway to the room witnessing, but not taking part in, the homicidal act. The case at trial had been heavily dependent on the time of Confait’s death. Subsequently, on a reference of the case to the Court of Appeal, it turned out that the time of death had been hopelessly misjudged by the forensic pathologist, Dr Cameron (famous for his misdiagnosis in the Chamberlain case in Australia).
It was due to a failure to take account of the effect of the heat engendered in the building by the fire (allegedly started by the three) as part of testing the onset of rigor mortis. When the evidence at the inquiry discovered that Lattimore had a cast-iron alibi, it seemed that the consequence for any inquirer was crystal clear. Brimful of confidence - a trait to be avoided by any aspiring advocate - I argued on behalf of the boys that the explanation for the killing of Confait, which had been assiduously advanced by the prosecution, was in tatters. The case against all three collapsed entirely. It was, I imagined, inconceivable that Harry Fisher could reconstruct the homicidal event such as to inculpate any of the three boys for the killing. In order not to make the reader of this essay doubt that what I say transpired, I recite verbatim what Harry wrote (unaided, and therefore unguided in the analysis, I should add, by either of his two joint secretaries, civil servants respectively in the Home Office and the Law Officers’ Department).At paragraph 2(c) at page 8 of the report of 13 December 1977 there appears this finding:
I accept the evidence that Lattimore was at the Salvation Army Torchbearers youth club from about 7.30 pm to about 11.30 pm. I find that he was not present in the killing of Confait, and that all three boys could have taken part in setting fire to 27 Doggett Road.
and then at paragraph 2(d) - wait for it! -
I find that Leighton and Salih could have been present at and taken part in the killing of Confait and that all three boys could have taken part in setting fire to 27 Doggett Road.
And, at paragraph 9.7:
I conclude that the explanation which does least violence to the evidence is that Leighton and Salih were involved in the killing; that all three boys took part in the arson at 27 Doggett Road; and that Leighton and Salih persuaded Lattimore to confess falsely to having taken part in the killing. I so find on the balance of probabilities.
Thus, without more ado, the young Turkish-Cypriot boy was taken from his position as observer in the doorway to the room and pitchforked into the killing, thus fingered as one of the two individuals who had strangled Confait. (Before I make any comment on the extraordinary leap from factual data to absurd surmise, I should add that, a few years later, two men in prison admitted that it was they who had unlawfully killed Confait.) There could hardly be a clearer case of a total miscarriage of justice. The three boys were not just legally innocent as a result of the quashing of their original conviction and release from prison after three years in custody. They were factually innocent of any crime at 27 Doggett Road on that fatal day, including the event of arson subsequent to the homicide.
Harry Fisher’s findings of who were the probable killers reminds me of the remark attributed to Professor Harold Laski when he once replied to a question how he viewed a fellow political scientist who was regarded as his adversary in academic circles: ‘What I like about that man,’ Laski replied, ‘is that he has his feet firmly planted in mid-air’. It is my experience of a professional life in the law that, likewise among practising lawyers, let alone academics, there are some immensely clever judges and barristers who exhibit similar attributes to Professor Laski’s colleague. There is a word in Yiddish - nudnik - which, translated, roughly means the village simpleton. A ‘Phudnik’ is a nudnik with a PhD. There were quite a few Phudniks in my day, and I am sure that there are still some who grace the top echelons of the legal profession. I venture to think that these persons were - much less so, today - the products of their education and training. Most of the judges of the twentieth century (less so in the twenty-first) had been educated at private prep schools, then at one of a number of prominent independent (misleadingly called ‘public’) schools, followed by Oxbridge and ultimately going to the Temple.
In short, they had been reared in an environment that was singularly monastic; their links with the world, outside their socially elitist upbringing, were remote. Even when they engaged in practice at the Bar, their association with lay clients did not appear to varnish their unworldliness. I am glad to see that, for a variety of reasons, this former image of our judiciary is obsolescent, if not obsolete. Diversity as a major element in appointing the judges may still not have become other than a matter of wish-fulfilment, but it is having an impact on the social attitudes of the legal profession. The remnants of ‘judge-itis’ are waning.[187]It is now 40 years since the Confait inquiry (which incidentally was conducted in private) emerged into the sunlight of public scrutiny. But at the trial in November 1972, two aspects of forensic science displayed a further failing of the legal process. The ultimate discovery of the true perpetrators of the unlawful killing of Confait, and the significant reforms of the criminal process in the legislation of 1984 should have restored public confidence in criminal justice. Alas, subsequent miscarriages of justice have not disappeared from the criminal courtrooms. Why is this? The inherent feature (I regard it as a weakness) of the Anglo-Saxon adversarial system of criminal justice is the absence of judicial control, or at least independent overseership, of the investigation of criminal events by police officers. Unlike other legal systems (which may have their own faults or deficits) the analysis of evidential material in the English system is not undertaken until the trial, often many months after the criminal event, which can lead to evidence being delayed and untested. The decision-makers (judge and jury) are presented with a version of events constructed by the investigators and the prosecution. The creation of the Crown Prosecution Service (a major development in 1984) and the development of pre-trial case management by the courts have lessened the impact of deferred analysis of the evidence for and against the selected accused until tested at trial.
At a time when there is a growing awareness of the influence of European systems of criminal trial, it is encumbent upon reformers to conclude that the quality of our criminal justice might benefit from refurbishing in the context of criminality in Europe in the twenty- first century. An analysis of the main features of the binary systems of criminal justice (which increasingly have borrowed from each other in some aspects of the criminal process) gains impetus from Article 6 of the European Convention on Human Rights. This Article provides simply for an unspecified mode of trial that is fair; as such, it should provide the focus for a single European system of criminal justice which incorporates the main principles of fairness to all participants in the public process.As a psychologist of the Confait era, Doreen McBarnet, comments:[188] ‘The weakness of civil rights lies not just in abuse of the law, but with the law itself.’ If that was so some 40 years ago, it remains the case, despite some, if not all, of the abuses remedied in 1984.
An additional feature of the Confait case deserves a comment. The late Dr Barrie Irving (who died in March 2013), a distinguished forensic psychologist, gave evidence to Fisher in 1976 in which he demonstrated that the confessions of the three boys were false. He was proved to have been right all along. Sir Harry blithely commented that ‘if the conclusion was correct then it is not contradicted by the fact that the story told is bizarre and improbable’.[189] It was proved by Dr Irving to be not so bizarre, but factually accurate. The fact is that while Dr Irving, who became the first and distinguished Director of the Police Foundation, is listed as one of the witnesses who gave evidence to the Inquiry,[190] at no point in the report is the contradictory evidence alluded to. His subsequent assignment (1978-81) by the Royal Commission was to carry out observation on police stations. His study included 76 suspects in a Brighton police station. He found that 35 of the suspects made self-incriminating admissions, and another four confessed after the interviews ended. He also identified 165 different tactics used by the police to obtain confessions. This information amply justified the reforms proposed by the Royal Commission, and adopted by the legislature in PACE. But the judicial unwillingness to accept expert evidence in the area of psychological behaviour is still lamentably suspicious.