March 19941 A Brief Rejoinder to Michael Zander

about it?) They equate more guilty pleas with more miscarriages of justice (p 90) - a proposition for which there is no evidence.I0 They say that the system’s ‘overall presumption of guilt’ would be ‘reinforced . , . by greater powers for the police to obtain evidence from suspects’ (p W), when the evidence in question is mainly physical or real evidence, such as samples for DNA analysis, which ought to be better evidence of guilt (or for that matter, non-guilt) than is usually available. They speak of ‘new limitations on the Court of Appeal’ (p W), when the Report’s proposals regarding the Court of Appeal are mainly in the direction of better protection of the defendant. They suggest that the Report’s recom- mendations provide a useful ‘law and order’ agenda, when they could equally well have pointed to the longer (indeed, much longer) list of useful reforms to aid the defence. On each topic Bridges and McConville present only what serves their thesis and ignore everything to the contrary.

In short, this is not so much a review worthy of a scholarly journal as a hatchet-job.

A Brief Rejoinder to Michael Zander Lee Bridges and Mike McConville

Despite the deep sense of anger and betrayal the Commission’s report evoked in many quarters, we attempted in our original article to adopt an academic and analytical approach. We did not see it as our purpose to summarise the whole of the Commission’s recommendations, let alone to categorise and count them as ‘pro’ or ‘anti’ the defence or prosecution - an exercise we regard as devoid of intellectual merit and academic credibility. Rather, as we made clear at the start of our article, we sought to place the work of the Commission in a wider political context and, from that perspective, to analyse the broad direction in which their recommendations might take the criminal justice system. The examples we cited from the Report to illustrate our thesis were necessarily selective, although within the limited time and space available to us we did in fact cover a substantial range of the Commission’s recommendations.

Nor are we alone in criticising the Commission’s terms of reference and their interpretation of them; this has been a central theme of many critical responses to the report. The Commission were instructed to examine the effectiveness of the criminal justice system in terms of two fundamental objectives: the conviction of the guilty and the acquittal of the innocent. They were intended to have regard to the ‘efficient use of resources’ only as a background context when considering the two main objectives. I The Commission went astray by first confusing

~

10 Do they believe that there are fewer miscarriages of justice in London and the South East than in the North of England on account of a much higher rate of not guilty pleas? If so, on what ground?

1 Thus, to take some examples, in rejecting proposals for video recording of confessions, the Commission were right to consider the resource costs of such an innovation. On the other hand, we have criticised the Commission for not considering the resource implications for private defence solicitors and legal aid (as well as other more serious consequences) of their recommendation to allow police questioning of suspects to extend beyond charge. And the Commission’s failure to give detailed consideration to the likely costs of a Criminal Case Review Authority has provided the Government with a ready excuse to postpone implementation of this recommendation.

267 0 The Modern Law Review Limited 1994

R e Modern Law Review [Vol. 57

‘efficiency’ with ‘economy,’2 and then elevating economy into a separate and distinct objective3 which could be taken to justify, on its own, major changes to the criminal justice ~ y s t e m . ~ We are supported in our view that this was a misapplication of their brief by the fact that the specific matters listed in the terms of reference for their consideration did not include any reference to subjects such as mode of trial decisions or plea bargaining.

We did not deal at length in our article with the Commission’s treatment of plea bargaining. In their Report, the Commission accept both that ‘it would be naive to suppose that innocent persons never plead guilty because of the prospect of the sentence discount’’ and that ‘to face defendants with a choice between what they might get on an immediate plea of guilty and what they might get if found guilty by a jury does amount to unacceptable pressure.’6 It is our contention that, given these acknowledged effects, the Commission’s primary duty under the terms of reference was to consider whether the sentence discount as it now operates should continue or what further restrictions should be placed on it to limit its existing consequences in inducing innocent persons to plead guilty. This was also the conclusion put before the Commission in Roger Hood’s major research study on race and sentencing and supported by the Commission for Racial Equality.’ Yet, we can find no evidence in the Report that the Commission ever adopted this line of enquiry.

Instead, as Michael Zander now confirms, the Commission, once having decided on the basis of no evident investigation that reinforcing the sentence discount through the introduction of a ‘sentence canvass’ would create ‘no greater risk to the innocent than already exists’ (emphasis added), felt free to give way to ‘likely advantages to the system (as well as defendants) of promoting earlier and more guilty pleas.’* We can think of no clearer statement that, in this instance,

This is clear in the Commission’s Report and has been confirmed on many occasions by Michael Zander as in the following passage: ‘The remit therefore had three distinct component elements - the need to convict the guilty, the need not to convict the innocent and due economy’: M. Zander, ‘Where the Critics got it Wrong’ (1993) 143 N U 1338, at p 1338, col2. In describing our statement that the Commission elevated the background resource context into a systemic objective of criminal justice as ‘a really outrageous statement,’ Michael Zander has failed to check sources. The authority for our statement (apart from the Commission’s Report) is Michael Zander himself ‘Our conception . . . was to look at each part of the criminal justice process and to consider how it contributed to the three overall objectives we were asked to consider: securing the conviction of the guilty, the avoidance of convicting the innocent and efficiency in the use of resources’ (emphasis supplied): M. Zander (1993), ibid at p 1364, col I . We fail to understand how Michael Zander can object to this point since it simply reflects what he has remarked about the Commission’s approach as, for example, their giving more emphasis to cost effectiveness over other ‘obiectives’ as justifying sentence canvass proposals: M. Zander (1993). ibid - - - - . at p 1338, col 3. Reoorr. Dara 42. D 110. The Commission. however. seek to minimise the scale of such miscarriages ‘ I I

by citing evidencd from the Crown Court Study that had already been discredited, since it was based-on an ineptly phrased survey question to defence barristers (see M. McConville and L. Bridges, ‘Pleading Guilty Whilst Maintaining Innocence’ (1993) 143 N U 160- 161). At the same time, the Commission completely ignored another finding of the Crown Court Study that showed that in a quarter of all ‘cracked trials’ (a tenth of all Crown Court guilty pleas) theprosecution considered that the defendant would have stood a good or fairly good chance of acquittal had the matter gone to trial: see M. Zander and P. Henderson, The Crown Court Srudy (London: HMSO) pp 156- 157. Reporr, para 50, p 113. R. Hood, Race and Sentencing: A Study in fhe Crown Court (Oxford: Clarendon Press, 1992). There are a number of contradictions in this statement. First, if the existing sentence discount does lead to some innocent persons pleading guilty, would not changes designed to ensure that more defendants plead guilty as a result of it also mean that it is likely that the number of innocent persons so affected would also increase? Second, Michael Zander presumably sees the sentence discount as being of advantage to defendants because they will receive shorter sentences. There are reasons for doubting that this would be its long-term effect and, indeed, Hood’s research shows that for black defendants it

268 0 The Modern Law Review Limited 1994

March 19941 A Brief Rejoinder to Michael Zander

the Commission treated efficiency as a separate objective distinct from their primary duty to protect the innocent from false conviction.

Nor does it follow that, in criticising the Commission’s assumption of the correctness of non-jury determinations of criminal cases, we in any way implied that the equally blanket assumption that all such outcomes are incorrect should have been adopted instead. What our criticism did imply is that the Commission, in line with their terms of reference, should have at least questioned whether guilty pleas might entail miscarriages of justice and conducted some enquiries into this issue. Or, if the Commission felt unable to investigate this issue (or, for that matter, the quality of justice in magistrates’ courts) they might have at least had the humility not to step outside their brief in order to recommend such major changes as the formalisation and strengthening of plea bargaining or the abolition of the right to elect jury trial purely on cost-efficiency grounds.

We could go on to point out other contradictions and illogicalities in Michael Zander’s position (not least in respect of his interpretation of the burden of pr00f)~ and to deal with his string of complaints against us. But, to return to the main burden of his accusation against us, we might simply ask where (other than his Notes of Dissent which we acknowledged in our article) in his stream of rejoinders to the Commission’s critics has he accepted that the Commission made mistakes, even in their arguments and use of evidence, let alone in the overall balance of their recommendations. Confusing criticism with hatchets tends to occur when insiders over-identify with a collective product to such an extent that they are no longer able to see the wood for the trees.

tends to have the opposite consequences. In any event, the Commission explicitly state that sentencing was outside their terms of reference.

9 The objective of the system is to acquit any who may be innocent and not simply to acquit the factually innocent. This is precisely why the burden of proof is so strict and not, as Michael Zander sees it, an accidental by-product of its formulation.

269 0 The Modern Law Review Limited 1994