Justice system hauled over the coals

IN THE SAME WEEK that the Royal Commission on Criminal Justice published its report, the case of Sam Kulasingham and Prem Sivalingaham was referred by the Home Secretary to the Court of Appeal.
The East Ham case was just the second referral in 15 months. Amoy the Commission's recommendations is that future referrals should become the responsibility of an independent tribunal.
Many doubt that the Royal Commission has done anything to avoid future miscarriages of justice. It has actually reduced further individual liberties under the guise of reform.
Paul May, formerly chair of the Birmingham Six campaign and now involved with the East Ham Two Campaign, is one who has reservations about the creation of an independent tribunal. He foresees such a body becoming another "quasi-independent agency" of government similar to that now operating in the Social Security Benefits sector.
In a country with no Freedom of Information Act, Parliamentary questioning remains one way in which information can be obtained from elected representatives.
The creation of an autonomous body would enable the Home Secretary to adopt a "nothing to do with me principle" and effectively frustrate the efforts of those seeking information.
Paul May favours rather the creation of a body that is accountable to Parliament. But the idea of an institution directly accountable to the House of Commons Home Affairs Select Committee was rejected in the early '80s.
A splitting of Home Office powers into ministries of justice and interior is another possibility but does not appear to have been considered by the Royal Commission. In most other European countries there are separate ministries — this avoids the collusion that comes from having the same body responsible for releasing prisoners as is charged with keeping them "banged up". A division of Home Office powers would be another way of creating an independent body to deal with justice issues (including miscarriages). Another significant omission amongst the 352 recommendations of the Commission was the question of disclosure of evidence by the prosecution. Nondisclosure had played a crucial role in the conviction of the Guildford Four, Judy Ward and the Taylor sisters.
The Royal Commission did stipulate full disclosure of the defence case prior to trial, effectively further tilting the scales of justice in favour of the prosecution.
"It is a back door way to undermine the right to silence", according to Michael Mansfield QC. On 16 May, 1975 three of the leading barristers who prosecuted the Guildford Four signed a note about alibi witnesses. Among the witnesses was Charles Burke, a green grocer's assistant, who said Gerry Conlon was in a hostel at the time the Guildford bombs exploded.
The list of witnesses that the barristers were prepared to disclose to the defence did not include Burke's name. As a result of similar nondisclosure in the Judy Ward case, the Appeal Court ruled an absolute duty on the prosecution to disclose evidence to the defence this ruling has since been limited.
The most recent instance of non-disclosure comes in the East Ham case, where Kenneth McRae, junior prosecuting council in the original case (now a judge) is under stood to still be withholding one prosecution document.
Given the crucial role played by confession evidence in the conviction of both the Guildford Four and Birmingham Six, the failure of the Commission to outlaw uncorroborated confessions as sole evidence to obtain a conviction has raised many eyebrows.
Liberty's legal officer, John Wagham criticised the Commission for this omissions citing such evidence as "one of the biggest single reasons for innocent people going to prison."
Unlike in Scotland where a conviction cannot stand on uncorroborated confession evidence alone in England such evidence remains admissible though its relative merits as a matter on which the trial judge must guide the jury.
One of the most contentious recommendations of the Commission has been the restriction on the individual's right to trial by jury The move to restrict this right has been justified on the grounds of expediency.
As Michael Mansfield has stated: "Miscarriage of justice cases have not come about due to bad juries." Juries represent all levels of the community and to begin to change this structure will, to again quote Mansfield, see a race toward "middle class justice".
The erosion of the principle of trial by jury also marks an increasing convergence between the criminal law and powers available under the Prevention of Terrorism Act. A shift toward the Diplock Courts system of trial by judge whilst still a distant vista in England and Wafes is something that has now moved a step closer with this recommendation of the Royal Commission.
In reality it would appear that the Royal Commission on Criminal Justice has set an agenda to "reform" the system more in favour of the DPP's office than the likes of Judy Ward and the Birmingham Six.
Whilst the police and elements of the judiciary have welcomed the report lawyers, civil liberties groups and campaigners against miscarriages of justice remain unaffected.
The means to right the wrongs inflicted are more problematic than ever.