There was a time when journalism in this country held a mirror up to the criminal justice system, and exposed its flaws.
I thought it necessary to begin with that simple statement, because to those under 40 this is likely to be something of which they have no personal experience. There was a time, decades ago, when we could look to the print and broadcast media for accurate, critical, reportage of what was being done in our name. Truth was spoken unto power.
That many of the most egregious miscarriages of justice were recognised and – in some cases – corrected is due, in substantial part, to the principled, fearless journalism of the receding past. There was Granada Television’s Who Bombed Birmingham? and the journalism of Chris Mullin on the Birmingham Six, and the journalism of Gavin Essler, Chris Mullin and David McKittrick on the Guildford Four. Then there was the work of David Jessel with Rough Justice (BBC) and, later, Trial and Error (Channel 4), on numerous cases including the Bridgewater Four. There was the journalism of Paul Foot in Private Eye on the Lockerbie fiasco, and, of course, there were the tireless efforts of Ludovic Kennedy, over many years, on such major injustices as Derek Bentley and Paddy Meehan. These were shining examples of a type and standard of effective, important journalism that is now notable only by its absence.
This matters. It matters because, in the absence of similar scrutiny by contemporary journalism, the vital protection that this work provided is being lost. It matters because, in consequence, innocents are subjected to horrific, lifelong ordeals. Some die.
In the five-year period 2014 – 2018 the Scottish High Court of Justiciary Criminal Appeal Court quashed 98 convictions arising from solemn (jury) trials. Each was recognised, by the court, as a miscarriage of justice. Statistics can, of course, be interpreted in different ways. Some may see this as evidence of the efficient working of a safeguard against those instances of wrongful conviction that do, inevitably, arise. If that is your view, then please consider this: the figures, on any analysis, illustrate an alarming incidence of wrongful conviction. And when you consider that, of these successful appeals, only four were on referral from the Scottish Criminal Cases Review Commission – a body whose very existence is due, in large measure, to the work of the aforesaid journalists – other interesting questions arise. For it was in the cases that are now in the remit of the SCCRC, cases that had been unsuccessful at earlier appeals, that the benefit of the journalists’ work was keenly felt. Their absence today is reflected in the pitiful, and diminishing, rate of correction of the most troubling injustices.
There is a worrying lack of attention, these days, to the existence of this problem, never mind its true extent. Of the cases which these statistics reflect, what, if anything, do you know? Of the lives blighted, what have you heard? Every miscarriage of justice is a failure of the system that should protect us and keep us safe. The system that founds our democracy. We should know of these things. We should want to know of these things.
Our system of criminal justice is being warped beyond recognition. Justice itself is being redefined. It now exists only in the securing of convictions.
An acquittal is regarded, these days, as a failure, and a denial, of justice. By legislative and executive fiat, justice is bent to the will of the “victim”. No rational person would wish to deny justice to the victims of crime. No rational person would wish to see the perpetrators of crime evade justice. And no rational person would criticise a criminal justice system that strives to serve these ends. But what we have is a system that strives only to serve a perception, and that isn’t the same thing. And the difference is a very dangerous one. Because “our” system strives to serve the perception of justice at the cost of actual justice.
Where a complainer of crime is deemed to be a victim of crime, the fundamental and essential balance in our justice process is skewed. An unfair advantage is handed to prosecution, with a corresponding disadvantage to defence. Determining whether a complainer of crime is, in fact, a victim of crime is one of the basic functions of our trial process. It is to be resolved by the leading, and testing, of evidence. For and against. Where this fundamental question, of all questions, is pre-judged then what is the actual value of a notional presumption of innocence? Where the requirement of corroboration – another of our fundamental protections – is eroded, systematically, over decades so as to be almost meaningless, what is the actual value of a notional presumption of innocence?
These are questions that a healthy and engaged press might be expected to ask. They might also ask whether a criminal justice system that values the fact of a conviction over the legitimacy of that conviction, a criminal justice system that, in the blind pursuit of higher conviction rates as an end in itself, hobbles the ability of an accused to defend himself, and that claims to do so in the interests of victims, is truly the guardian of our protection and safety or, indeed, of our democracy.
They might but, perplexingly, they don’t. The Scottish Government recently proposed to dispense with juries in the trial of serious crime. A more brazen assault on justice it would be difficult to imagine. And yet the backlash, swift as it was, came only from the lawyers. Where was the fourth estate? Reporting, as it happens, on the backlash, not the proposal. In what must be a new low for journalistic standards, I heard one BBC Scotland reporter suggest that this astonishing proposal was actually in the interests of those accused of serious crime. It is simply inconceivable that this would have been the response even twenty years ago.
A press that reports, but does not question, the continuous and continuing erosion of the rights of the accused is, surely, complicit in a process that has, as its product, the abandonment of justice. Who wins, other than the true criminal, when the wrong person is convicted of a crime? Who gets justice? Who wins when someone is convicted of a crime that never happened? We are creating, by design, a different class of victim. A class of victim whose interests, ironically, the state is in no hurry to protect.