FRIDAY, AUGUST 16, 1963
Law Reform
THE separation of powers is a jealuusly guarded foundation of our constitutional structure, and the merest hint that the edges arc being blurred touches one of our most sensitive nerves. If once it be said that the judges and the courts are serving government policy, instead of being the citizens' protection against the state, the writing is on the wall.
Current suggestions to this purpose are probably misconceived. The Court of Appeal, in the "Lucky" Gordon case. rightly refused to read aloud statements which undoubtedly involved serious allegations against persons who would have had no standing in that particular court. and who could not have defended themselves against such charges. So far as they. and the public, are concerned, these issues are best left to the Director of Public Prosecutions.
So far as Gordon is concerned. justice has undoubtedly been done. If it be said that the public should know whether or not the police are being accused of committing or inducing perjury', the answer surely is that the Public Protecutor's office is not in the habit of letting the nation down.
Everyone who lives in the twilight world knows well enough that this is one department which is incorruptible and no respecter of persons. No one wastes their time trying to seek favours in that direction. least of all when the Director is a man like Sir Theobald Mathew. In any well ordered society. there must be someone you can trust with confidences unfit for exposure to the public gaze. The security services and the D.P.P.'s department are of this quality.
Those who know the present set of High Court Judges are well enough aware that anyone, even a Prime Minister. bringing pressure on them to hush things up would find himself a certainty for exposure. It is doubtful whether anyone really questions this. There is, however, anxiety about the state of the law.
If it was right to protect. say, Miss Keeler or the police in the recent Court of Appeal incident, why was it possible for witnesses in the Ward case to refer to Lord Astor and Mr. Fairbanks by name, accusing them of immorality, with no chance given to these gentlemen to defend themselves?
Had they asked for permission to cross-examine, their counsel would have been told that their clients were not parties to the action, that they consequently had no standing in that court. and that there could be no question of giving evidence in rebuttal. Is this fair?
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Many absurdities arise from the rule that a witness cannot he asked, in the course of his evidence, to incriminate himself. Why on earth not? But the criminal law is only one branch requiring examination. The law of landlord and tenant, involving elements of statute, common law and equity reaching back through many centuries, is an entire world of bewildering perplexity. A major Act of Parliament, like the great codifying and reforming statutes of 1925, is urgently needed. Universal compulsory registration of land would cut out endless problems of examining title.
What about the hopeless jumble in the state of the law governing trade unions, especially in regard to expulsions and joint liability? Or the anomalies of the concept of the matrimonial offence in divorce and separation cases? Or the problem of imputed intention in criminal cases? These, and the law of defamation, are only a few examples of the many that could be cited.
The trouble is that law reform is the Cinderella of parliamentary activity. It is no answer to suggest a Ministry of Justice. This would really entangle the courts with the political arm of government, as already happens in the curious combination of legal and political function in the Law Officers in the House of Commons.
The Lord Chancellor, the most detached person in either House of Parliament, is the proper person to keep a supervisory eye on law reform needs, but it seems a long time since we had a really imaginative and energetic figure in that office.
Parliamentary pressure should he brought to bear at the earliest possible moment for a special commission of the House to examine the whole range of urgently needed changes and developments, and plans made for a team of first class draftsmen to prepare a series of Bills.
Another urgent matter is the whole question of the language of the law, so utterly bewildering to the laymen caught up in its toils. One remembers the anger of Lord Justice Scott, in 1947, when he and two colleagues in the Court of Appeal asked how any tradesman could he expected to understand the tangle of regulations covering the operations of every small time butcher and grocer in the country.
Police Problems
The other issue is that of the police. Anyone with any common sense must surely recognise that criminal detection would be absolutely hopeless if every police officer had to stick strictly to the letter of the law in the course of his enquiries. Brutality and perjury can never be condoned; and it is naive to pretend that they never occur.
But the minor threat here and the odd promise there, the use of the "squealer" or police informer, the bargaining between police and criminals in the unofficial code of the underworld— all these things are inevitable as long as the effects of Original Sin still stand and human beings remain imperfect.
With regard to major abuses, however, and the modernising of crime detection, a number of urgent reforms are required. The system of regional police forces has its virtues, but there needs to be, in addition, a national detective force, comparable to the United States Federal Bureau of Investigation, and we support the plea of Sir Ronald Howe in this regard.
As matters stand, the detective and forensic skills of many provincial police forces are dissipated. They do, of course, work in some degree of cooperation with Scotland Yard, but the system is too haphazard, and is particularly lacking in the matter of crime prevention.
How else could we have gone on for so long without putting radio telephones in mail trains, for instance, a measure which would certainly have been advised by a national team of crime experts responsible for the safety of the entire community? How absurd it is that, in the mail train case, the investigating force is in Bucks, while most of the crime's organisation occurred elsewhere.
At present, only the Metropolitan Police are directly responsible to the Home Secretary. He would be the proper person to answer to Parliament for a national force, with a special branch to supervise police behaviour. He should also turn his attention to the need to improve the professional status of the police officer, to build up the detective force as a body entitled to the same respect as the nation's lawyers, doctors, or service officers, and given, not only practical training, but a university background. If this were done, the problems raised by the unofficial use of the cruder methods of interrogation would largely answer themselves.