Fight Racism! Fight Imperialism! No.110, December/January 1992
It is not headline news, but a Royal Commission is currently meeting to review the Criminal Justice System. Its remit is to examine the investigative, pre-trial, trial and appeal systems and to make recommendations. On past experience, CAROL BRICKEY argues, we should be wary both of the debate and the eventual proposals.
Most Royal Commissions and special inquiries are remarkable only for the length of their deliberations and the speed with which the eventual proposals are dustbinned. This is not, however, the history of Royal Commissions concerning the police and criminal justice. Both the Royal Commission on the Police 1962 and the Royal Commission on Criminal Procedure 1981 were accompanied by vigorous lobbying, in public and behind closed doors, and led to subsequent legislation – the Police Act 1964 and the Police and Criminal Evidence Act 1984 (PACE). If this past legislation is anything to go by we have much to fear for the future.
Ironically, both the previous Royal Commissions were triggered, like the present one, by policing scandals which were forgotten long before the recommendations were put on paper.
Reforming the police – 1962
In the late 1950s, disciplinary legal proceedings alleged corruption by the Chief Constables of Cardiganshire, Brighton and Worcester. Together with fierce disputes between Chief Constables and their local Watch Committees (to which they were accountable), and the arrest of actor Brian Rix in Whitehall, these led to the 1962 Royal Commission. The Commission itself deliberated against a background of further evidence of corruption including planting false evidence, the use of a rhino whip in Sheffield and repressive policing of political demonstrations. The outcome was less than progressive.
As a result the number of constabularies was reduced, but the overall effect was to put more control in the hands of central government in the shape of the Home Secretary and to lessen local accountability. Local police committees are restricted to issues of efficiency, but with important aspects of the budget under central government control. This was to become a major issue in the 1980s when local police committees tried to influence the purchase of plastic bullets and high-tech surveillance equipment, only to find that these were supplied by central government and totally outside their control. Chief Constables like Oxford in Liverpool and Anderton in Greater Manchester engaged in bitter disputes with their police committees following the inner city uprisings of the early and mid 1980s.
The establishment of ‘Unit Beat’ policing transformed the image of the police; as one commentator wrote: ‘The “British Bobby” was recast as the tough, dashing, formidable (but still brave and honest) “Crime Buster”.’ This was Dixon transformed into Barlow and The Sweeney with all the ramifications of flashing blue lights and fire brigade policing.
Reforming Criminal Procedure – 1981
The consequences were still at issue when the Royal Commission on Criminal Procedure presented its proposals in 1981. The Commission was triggered by the 1977 Fisher Report on the Confait case where three juveniles were wrongly convicted of murder on the basis of confession evidence extracted in breach of the Judges Rules (which governed the treatment of suspects). This was soon forgotten as the Metropolitan Police Commissioner McNee and the Association of Chief Police Officers (ACPO) began a fierce lobbying campaign to ensure that the outcome would be enhanced police powers, not increased accountability or rights for suspects in custody. The issue of police corruption was explicable, said McNee, in his evidence to the Commission: ‘Many police officers have, early in their careers, learned to use methods bordering on trickery and stealth in their investigations because they were deprived of proper powers by the legislature.’ When the Commission delivered its proposals, which claimed to be a balance between increased police powers and protection for suspects, a fierce debate raged. To what degree the balance was achieved may be judged by the response of the Police Federation magazine Police which headlined: ‘Nice One Cyril!’ (Sir Cyril Philips chaired the Commission). Police lobbying had been very successful, and they weren’t going to stop there.
The Thatcher government seized on the report’s recommendations to deal with paroxysms in the law and order lobby following the 1981 inner city uprisings. Lord Scarman’s report on Brixton, although mealy-mouthed in some respects, had issued stern criticisms of police saturation operations like Swamp ‘81 and of lack of accountability. In response, the police launched a public campaign, in league with the press and Tory MPs, to point the finger at black people and create panic about street crime. One Tory MP, Alan Clark, claimed in Parliament that ‘these offences are becoming increasingly brazen with gangs of up to 50 young blacks looting in broad daylight.’ (Clark’s talent for being economical with the truth has since taken him in a different direction). The police called a timely press conference to issue racial statistics for ‘mugging’ (a crime which does not exist in law) and began a £30,000 advertising campaign calling for capital punishment. The message was clear – more police powers or Britain will descend into crime and anarchy.
Whitelaw, then Home Secretary, obliged with promises of legislation to include stop and search, search of premises without warrant, roadblocks, extended custody powers and limitations on eligibility for jury service which would have excluded millions of people on the grounds that they had committed an imprisonable offence in the previous ten years, even though not actually sentenced to prison. Excluded would have been most of the two million adults who are convicted every year of minor charges, like obstruction of police, which are theoretically imprisonable. At the same time Whitelaw announced the appointment of ex-RUC commissioner Kenneth Newman to the Metropolitan Police and announced a review of Public Order law.
The first draft of the Police and Criminal Evidence Act was so draconian that even the Daily Express described it as ‘tawdry, illiberal and ill-conceived.’ It was thankfully abandoned due to the 1983 general election, but re-emerged, rewritten and only marginally less illiberal as the Police and Criminal Evidence Act 1984 (PACE). As far as the police were concerned it was not the Act it used to be, even though it transformed their powers. In particular they disliked the intention to form an ‘independent’ prosecution service, tape-recording of interviews in police stations and, especially, the defendant’s continued right to silence.
Before examining the background to the present Royal Commission it is worth looking at the promised review of Public Order law which in reality proceeded in secret, without public scrutiny.
The paramilitary direction
In the wake of the 1981 uprisings, ACPO – a body totally without any constituted powers – decided to direct the development of public order policing. At its conference in September 1981 emergency sessions on public order were addressed by the RUC and the Royal Hong Kong Police. The choice was significant and contrary to the traditions of policing in Britain, misleadingly called ‘policing by consent’. Both the RUC and the Hong Kong police employ the paramilitary policing methods held to be necessary to suppress communities hostile to colonial powers.
The ACPO Working Groups formed as a result of the conference produced The Public Order Manual of Tactical Options and Related Manners, and provided a range of approved riot equipment. The existence and contents of the Manual were kept secret from both the public and Parliament, but approved by the Home Secretary. There was no agreement to form a Riot Squad, but a Riot Squad was effectively formed.
The new colonial policing tactics were unveiled at Orgreave on 18 June 1984 during the miners’ strike – the striking miners and their supporters were ‘the enemy within’, just as susceptible to paramilitary policing as the ‘enemy without’ which populates Britain’s colonies. It was during the Orgreave riot trial in 1985 that the existence of the Manual first became public and only then that a censored section of the Manual appeared in the House of Commons library. Its contents are still regarded as secret. This totally unofficial, secret document, produced by a totally unaccountable body of police, now governs public order policing tactics in Britain. It also forms, with the lessons learned in the miners’ strike, the background to the provisions of the Public Order Act 1986 which gives police wide-ranging powers to curtail and prevent political demonstrations and the activities of strikers. Its consequences were seen during the Poll Tax demonstration in Trafalgar Square in 1990. Scarman’s recommendation that it would be a tragedy if changes in public order policing distanced the police further from the public, echo from the dustbin of history: Dixon is now Darth Vader.
From Adversarial to Inquisitorial – the search for ‘truth’
With sections of the British public now officially defined as the ‘enemy within’ it only remained for the police to rid themselves of the protections afforded by PACE, and in particular the right to silence. In 1988 Douglas Hurd as Home Secretary began the process by limiting the right in the North of Ireland, with the promise that this would be extended to Britain. His path was blocked, however, by a new series of policing scandals which extended far beyond anything previously exposed.
The successful appeal of the Guildford 4 in 1989 forced the setting up of the May Inquiry. The release of the Birmingham 6 at the beginning of 1991 drove home the point that what was involved here was not only police corruption but also the gross failure of the Appeals system. This was closely followed by the release of Judith Ward, the Tottenham Three’s successful appeal and the revelations of the activities of the West Midlands Serious Crime Squad. These last two were in some respects the most significant for the police. With regard to the Guildford and Birmingham cases they argued that such miscarriages of justice could not happen now. But at Broadwater Farm in 1985 a trial run of PACE was in operation which did not prevent the police holding suspects incommunicado for days and denying access to solicitors. With the help of a press witch-hunt the three were convicted largely on the basis of uncorroborated, corrupt confession evidence. Many of the West Midlands cases took place after PACE came into operation.
This has not prevented the police from lobbying to influence the present Royal Commission to extend their powers. The style is different from McNee’s cruel lobbying, but its import is no different. We now have Darth Vader assuming the mask of Dixon. At an International Police Conference in London in October this year, Sir John Woodcock, Chief Inspector of police, and Sir Peter Imbert, Metropolitan Commissioner, admitted in unison that the police have been ‘bending the rules’, but reform is now at hand in the shape of the Met’s Plus Programme and a new Code of Ethics. Echoing McNee’s evidence to the 1981 Royal Commission, Woodcock argued: ‘Among police officers there is a widespread mistrust of the mechanisms of the judicial system which are seen as unnecessarily favouring the accused at the expense of the rights of the victim.’ If we can’t do it by breaking the rules, the argument goes, then you must make it easier for us to do it legally.
Sir Peter Imbert was ready with a shopping list of reforms: plea bargaining, pre-trial reviews, compulsory disclosure of defence evidence and restrictions to the right to silence. Oh yes, and of course, restrictions on the right to jury trial ‘because it is being cynically abused to delay trials’. There is nothing in this list which addresses the corrupt police practices or the failures of the trial system which led to the brutal convictions of innocent men and women. The police would argue that they are reforming themselves voluntarily. Sir Peter has even removed the word ‘Force’ from the Metropolitan title and replaced it with the world ‘Service’.
At the centre of this argument is that the adversarial system of trials is at fault. What we need is a search for the truth. This argument has become fashionable in the post-Guildford/Birmingham era and has been adopted even by liberal lawyers. It is a system which is widespread in Europe and is the basis of the Scottish legal system. Theoretically at least, police investigations of a crime are under the control of an independent ‘magistrate’ who supervises the investigation, collects all the evidence and presents a report to court. What makes it so attractive to the police – provided of course that they become the ‘independent’ magistrates and police rolled into one – is that trials are quick and there is no right of silence for the accused. Research, however, shows that the inquisitorial system (at its worst the Star Chamber) is as riven with holes as the adversarial system. The ‘independent’ magistrate, who works with the police all the time, becomes a rubber stamp for police action. It is probably the case that there are just as many miscarriages, but with the added advantage for the police and judiciary that they are impossible to uncover. Without the right to silence there will be more confession evidence from suspects at their most vulnerable in police custody.
Darth Vader dressed as Dixon now proclaims that he has an overwhelming desire to protect the victims of crime. If this were true then the colossal number of domestic burglaries, incidents of domestic and sexual assault, racists attacks etc, which primarily afflict working class communities, would have been much higher police priorities than they actually are. In reality the police, whatever their guise, are neither more nor less than they have always been: a special body of armed men and women intent on repressing the working class in the interests of the state and the ruling class. As one contemporary remarked on the establishment of the Metropolitan Police in 1829: ‘the latent object appears to have been that of placing at the disposal of the Home Secretary a body of well trained, disciplined and armed men, competent to intimidate the public and to keep down the rising spirit of the population.’
What marks this Royal Commission is the lack of debate about the alternatives and a consensus that a vague ‘search for the truth’ will be a panacea for all the ills of 1990s criminal justice. Truth, however, is not objective. In the 1970s the state needed convicted Irish people, so the police obliged. In the miners’ strike the police were nothing other than the force used to break the strike in the interests of the British state. At Tottenham they branded as criminal and used terror against a community which was justifiably enraged at the death of a black woman. They will continue to use force to suppress black people, political demonstrators, strikers, the Irish, the poor and anyone who supports them.
