Leading Article: More tuning than overhaul

THE REPORT of the Royal Commission on Criminal Justice suffers from an excess of balance. The commission was set up in March 1991 at a time when the public was outraged by a series of miscarriages of injustice. It was announced on the same day that the Court of Appeal quashed the convictions of the Birmingham Six, who had served more than 16 years in prison. The criminal justice system was seen to be deeply flawed.

Yet the overall impression left by the report by Lord Runciman and his 10 fellow commissioners is that radical change is not required. No doubt for the sake of balance, the one major innovation - the proposal for an independent review authority to consider allegations of miscarriages of justice, supervise investigations and refer appropriate cases to the Court of Appeal - is matched by a recommendation that could create a whole new set of miscarriages, albeit at a lower level of offence: that defendants should lose the automatic right to trial by jury for certain categories of offence. There must also be grave doubts about the wisdom of the commission's view that defendants should disclose the substance of their defence in advance of trial, or risk adverse comment in front of the jury.

All in all, the commmission has gone far enough to exculpate itself from the charge of complacency but not far enough to convince that it has, as much as possible, ruled out the possibility of further grave errors. If all its recommendations were accepted, there is no doubt that the justice system would be more efficient, cheaper, and less likely to go wrong. But it would still be fundamentally the same system, even if with greater safeguards, as that which condemned many innocent men and women to years in prison.

It would, for example, still be possible for defendants to be convicted on the basis of a confession uncorroborated by other evidence, even if juries would be warned by the judge about the need for caution in accepting it as evidence. In Scotland, no one who confesses to a crime, except by a formal plea of guilty, can be convicted solely on their own confession. There must be evidence from another source supporting the confession and incriminating the accused.

To have adopted that rule here would have helped to allay fears aroused by recent notorious cases. To argue that the police could always arrange corroborative evidence is beside the point: the aim must be to make such convictions more difficult to obtain. A majority of the commission concluded that where a confession was credible and had passed the tests laid down in police rules, the jury should be able to consider it.

If initial reaction is any gauge, the recommendation least likely to be implemented is the one limiting a defendant's right to trial by jury. This right is so ingrained in popular notions of English justice that it will be defended to the hilt. The commission's proposal that magistrates should have the power to determine the right to trial by jury compounds their misjudgement. Studies show that magistrates invariably adopt the prosecution's submission. It is precisely because defendants believe they have a better chance of a fair hearing from a jury than from a magistrate that they opt for the former. Barristers believe that magistrates, in practice, would favour those whom society considers to be more respectable than others.

The case against the proposed obligation on the defence to disclose the substance of its case to the prosecution before the trial could not be better expressed than by the one commissioner who disagreed, Professor Michael Zander. 'The fundamental issue at stake,' he writes in his note of dissent, 'is that the burden of proof lies throughout on the prosecution. Defence disclosure is designed to be helpful to the prosecution and, more generally, to the system. But it is not the job of the defendant to be helpful either to the prosecution or to the system. His task, if he chooses to put the prosecution to the proof, is simply to defend himself.' The aim of this recommendation, with all its dangers, is to improve efficiency and cut costs. That is a sound goal, but not worth any move that strengthens the system at the expense of the accused.

To give weight to the report's weaknesses is not to deny its virtues. Apart from the recommendation for a Criminal Cases Review Authority, there is much in it that would promote good practice. The recommendations on police discipline are along the lines called for by this newspaper. They should eliminate the scandal of police not being disciplined either because evidence against them was not strong enough to stand up in a court, or because they had been acquitted of a criminal offence. No less sensible are proposals for the Court of Appeal to be given a broader and more flexible remit to overturn verdicts it believes to be unsafe, and those giving the defence an enforceable right of access to forensic evidence held by the prosecution. It is also about time that incompetent barristers were penalised.

The notion of justice is that the innocent should go free and the guilty should not. Lord Runciman's commission was set up to deal not with the guilty walking free, but with far too many innocent men and women being wrongly convicted and sentenced to long terms in jail. If its better recommendations are accepted, a flawed system will be improved. Yet it is hard not to conclude that a mixture of conservatism and caution has resulted in the loss of a great opportunity to initiate genuinely radical reform.