Miscarriages of justice from police malpractice

Press, 5 October 1987, Page 8

Miscarriages of justice from police malpractice

By

CHRISTOPHER MOORE

Police malpractice had led directly to miscarriages of justice In New Zealand and Australia, said the British author and legal commentator, Ludovic Kennedy, in Christchurch on Saturday. In an address to the 1987 Law Conference, Mr Kennedy said that the conduct of police investigating officers in the Arthur Allan Thomas and Lindy Chamberlain cases had resulted in the conviction of innocent people. Police malpractice was also a “common denominator” in many miscarriages of justice in . Britain, and the United States, he said. "It is the direct result of the conduct of investigating police officers in the C. 1.8. who, desperate to clear up cases and believing the suspect to be culpable yet not having enough evidence to prove it, indulge in all sorts of malpractices to, bring about a guilty verdict. They delude themselves into thinking that justice has been done — z what, the former British Lord’ Justice Devlin has called ‘pressing too hard against those whom they believe to be guilty.’ ” “As far as Britain is concerned I could list a score of cases in which similar malpractices have occurred and continue to occur to this day. The habit has become so widespread and public awareness of it so great that in some English courts juries are so distrustful of the police that they tend to bring in acquittals where the burden of proof rests mainly on the police evidence. “That is bad for the police, bad for society, and bad for justice, which now finds itself in the position of double jeopardy: one where not only the innocent are convicted but the guilty go free.” Mr Kennedy described a call by British police for an end to a suspect’s right to silence as a most dangerous step. It would encourage many persons under police pressure to say something rather than nothing and encourage the police to prise confessions from those they believed to be guilty. "Such confessions have been the cause of too

many miscarriages of justice. I would disallow all so-called confessions to the police, whether taperecorded or not A taperecorded interview after several days of police grilling is no guarantee of veracity,” Mr Kennedy said. But he did not see why an accused individual’s right to silence should extend to a trial. “Let him be called as a witness in his own defence. If he declines to answer questions, let the court draw its own conclusions. I would also prefer the questioning to be done ■ not by partisan counsel blit by an impartial presiding judge.” Mr Kennedy also opposed the admission in court of past convictions. “I cannot think of a greater temptation for the police when they are at a loss to know who is culpable to fix up some old lag with a string of convictions as long as your arm,” he said. Mr Kennedy criticised the adversary system as being top heavy and artificial. It was a system in which the most important person in the case, the accused, was made less important, an object rather than a subject, and counsel were encouraged “to strike postures and attitudes and indulge in sarcasm. “The evidence of witnesses is shaped by what the prosecution and defence want them to say or what they think counsel want them to say. Other witnesses whose evidence might influence the verdict are not called for fear of saying the wrong thing.” Under an inquisitorial system where an examining magistrate investigated individual cases Mr Kennedy doubted whether many, including those of Arthur Thomas and Lindy Chamberlain, would have come to trial or resulted in a conviction. The police were expected to perform totally different tasks as the preservers of law, and pursuers of justice. “Those tasks require great courage, patience and calm. They have to match with a similar ruthlessness the ruthlessness displayed by their quarry. You cannot catch, criminals with kid gloves. The police are the thin

blue line that stands between us and anarchy. “But these are hardly the qualities we need for forensic enquiries in a highly technological age. These require different abilities — to absorb, compare, deduct, analyse and discard — and above all to reflect How can such tasks be competently performed by an organisation that in some ways has to train its recruits like front-line troops? “Is it not the pressure on the police from their superiors and society to get results, coupled with a sense of failure and frustration at not getting these results, that drives the police on so many occasions to egg the pudding? “Among the members of the English Bar is a strong feeling of antagonism towards the inquisitorial system. I do not think that the inquisitorial system is without blemishes. In France, the view has been expressed that examining magistrates are too young and inexperienced and that they are inclined to keep suspects in prison far longer than is necessary.” Mr Kennedy suggested the establishment of a body of supervisory, neutral legal figures to whom all major crimes would be immediately reported. They would interview suspects and witnesses without delay and would direct police in their subsequent inquiries — and make recommendations on whether to continue with a prosecution. “In short, an officer parallel to the French judge but geared to suit each country’s individual needs and temperaments. “Such a body would achieve two vital reforms in one stroke — prevent-. ing conviction of the innocent as a result of police malpractice and, in cases where the jury tended to disbelieve police evidence, preventing the acquittal of the guilty. “As for the acquittal of the guilty as a result of the skills and tactics of counsel, there can be no remedy for< ; that until trials as well as investigations are conducted on inquisitorial lines. There hass been a deep reluctance on the part of authority to admit that justice can some times miscarry,” Mr Kennedy said.