Lawyers' Ethics and Criminal Justice Richard H S Tur

The Royal Commission on Criminal Justice was set up on the same day (March 14, 1991) as the Court of Appeal overturned the conviction of the Birmingham Six⁽¹⁾. The single overriding concern at that time was a deep and pervasive disquiet about the integrity of a criminal justice system which appeared incapable of preventing abuses leading to the conviction of the innocent. Even since March, 1991 miscarriages of justice have continued to come to light in England⁽²⁾ and a continuing crisis has been exacerbated by the widely differing views of what is acceptable conduct exhibited by the different organisations that participate in the operation of the criminal justice system⁽³⁾. For example, lawyers and judges condemn what they see as "oppressive and offensive" interrogation practices yet an "astonished and disgusted" majority of serving police officers see nothing wrong⁽⁴⁾. This illustrates the struggle between "crime control" and "due process" that in the view of some commentators characterises anglo-american criminal justice systems⁽⁵⁾. Others see control as predominant and humane values as marginalised or merely accommodated but not as being a heavily operative factor in the day to day business of criminal justice⁽⁶⁾.

Despite its avowed commitment to the fundamental principle that any accused is to be presumed innocent and the corollary that the burden of proof (beyond reasonable doubt) lies squarely on the prosecution, the English criminal justice system appears altogether too likely to prosecute and to convict the innocent. Radical barristers such as Helena Kennedy and Michael Mansfield have recently written well-informed and courageous books⁽⁷⁾ critical of historic and current practices and full of good sense. Kennedy states that "the recent miscarriages of justice should remind us that it is only by keeping the legal tests for conviction very high that courts can guarantee the protection of the innocent and maintain respect for law"⁽⁸⁾ and advocates "a new constitutional settlement, including a Bill of Rights"⁽⁹⁾ and Mansfield, too, is persuaded that far-reaching systemic reform, along the lines of the French arrangement with a juge d'instruction in charge of the conduct of criminal investigation, is necessary. He is (in my view, justifiably) indignant about the "unthinkable suffering handed down in the name of justice"⁽¹⁰⁾ and believes that "Central to genuine change has to be a commitment to principle and to human rights"⁽¹¹⁾.

These authors believe that fundamental tenets of the criminal justice system, including the presumption of innocence and proof beyond reasonable doubt, have been eroded. Kennedy states that "it is not the principles which have failed us but we who have failed the principles"⁽¹²⁾ and Mansfield concludes his book with a reference to The Rights of Man by Thomas Paine and he criticises the Royal Commission for "tinkering around the edges" when it should be "going back to basic principles"⁽¹³⁾. For Mansfield, "the basic priniciple to which we must return"⁽¹⁴⁾ is the presumption of innocence. This seeems very far removed from the government's own notions of what "back to basics" means, either generally, or in respect of the criminal justice system, particularly given governmental willingness to allow three men known to be innocent to be prosecuted and, perhaps, imprisoned in respect of Matrix Churchill⁽¹⁵⁾.

Practitioners such as Kennedy and Mansfield have extensive trial experience and their views cannot be lightly dismissed yet the Royal Commission's 352 recommendations offer very little, if anything, to reduce the likelihood of miscarriages of justice - that is, the prosecution and conviction of the innocent - and some of its major proposals (including those on corroboration and confession evidence, and on sentence discounts) seem likely to increase the risk of the prosecution and conviction of the innocent rather than reduce it. Given this potential for injustice well might one ask, "The Royal Commission on What ?"⁽¹⁶⁾. And in some instances - for example, the right to silence - the present government would go even further than the Commission's recommendations. Overall, therefore, the future appears bleak. One looks in vain for recommendations apt to prevent miscarriages of justice and for governmental iniatives concerned with just outcomes and humane values rather than with cost-cutting and efficiency.

Absent any significant structural or systematic reform, amelioration can come, if at all, only through changes in the conduct of those who participate in and operate the system. According to Popper "... the functioning of even the best institutions ... will always depend , to a considerable degree, on the persons involved. Institutions are like fortresses. They must be well designed and manned"⁽¹⁷⁾. This is particularly appropriate in the case of the English criminal justice system. One contemporary commentator believes "that the expression of humane values within criminal justice ultimately resides with practitioners. Indeed, in the absence of persons adhering to such values, criminal justice invariably descends into apathy and, ultimately, violence"⁽¹⁸⁾.

On this view, humane values at all levels of administration are vital to a civilised and acceptable functioning of any system of criminal justice. In particular, the ethical quality of the primary decision to prosecute calls for scrutiny. I argue that there is an urgent need for prosecutors to return to basic ethical principles in order that the risk of prosecuting or convicting the innocent be minimised and the number of inappropriate prosecutions be reduced. Although the focus is on the English criminal justice system throughout, it may be noted that parallel concerns have arisen in Australia⁽¹⁹⁾ and in America⁽²⁰⁾, and that Guidelines on the Role of Prosecutors were adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1990.

Criminal justice systems exhibit a significant degree of prosecutorial discretion. In England the exercise of this discretion is constrained by two considerations:- (1)Sufficiency of Evidence; and (2)Assessment of the Public Interest⁽²¹⁾. It is clear that the Crown Prosecution Service acts as a filter and, according to the DPP in 1993, the CPS does not proceed with 13% of cases proposed by the police for prosecution, that is about 193,000 out of 1,500,000. Cases may be rejected because of an insufficiency of admissible, substantial, and reliable evidence to offer a realistic prospect of conviction. To justify proceedings there must be more than merely a prima facie case against the suspect. Secondly, under the "Shawcross Doctrine"⁽²²⁾ even if there is sufficient evidence, a prosecution should proceed only where that "is required in the public interest". Clearly the decision whether or not to prosecute is a very significant stage in the criminal process. Given the potential for harm to others, such decisions require great sensitivity and care⁽²³⁾.

However, few legal ethicists have given the crucial decision to prosecute the attention it deserves and much of the literature on lawyers' ethics concentrates on how far criminal lawyers - prosecutors and defence lawyers, alike - may go in the pursuit of victory and to what extent, if any, truth and fairness are inevitable casualties of the anglo-american adversarial process⁽²⁴⁾. In so far as that criminal process is indeed based on a battle model with no quarter asked or given, wherein the outcome is all and its moral merits or demerits count for nothing, the decision to prosecute assumes an even greater importance because the impact even on an individual eventually acquitted may be severe and at the very least there is a moral duty not to visit avoidable or unnecessary suffering on others⁽²⁵⁾. Furthering the public interest is clearly a consideration capable of outweighing that duty. It is however wrong to allow cases to proceed where there is insufficient evidence, even though there is a public clamour and the public interest is unlikely to be served by prosecutors following either the baying of a lynch mob or any ideological agenda.

This public interest dimension plainly involves the exercise of discretion rather than any automatic application of rules if, indeed, rules can ever be applied "automatically"⁽²⁶⁾. The exercise of such discretion necessarily has an ethical dimension and whilst codes and guidelines can assist, education, including continuing education has an important role to play. It is certainly not the case that all offences brought to the attention of the authorities must be prosecuted. It is naive to assume that the criminal justice system is apt to solve all social problems. The criminal law is a notoriously blunt and unrefined instrument and the criminal courts are a limited and expensive resource. Any attempt to dispose of all wrongs formally in the criminal courts would clog the system. Accordingly, prosecutors have complex and difficult decisions to make, particularly in light of the increased weight attaching to victims' role in the system and their feelings in the matter. But, to use examples put by the DPP, herself, should a department store's interest in prosecuting prevail in a case where an old woman stole something worth less than £5 ? Or where defendant has, say, only two months to live ?⁽²⁷⁾ The public interest is obviously wider and different from the private interest of the victim and the primary function of the criminal justice system is to protect the public interest rather than to obtain compensation for victims, ease their pain, or gratify their desires.

It is in the context of these avowed principles of prosecution that the ethical quality of prosecutorial performance may be assessed. Although not primarily concerned with the initial decision to proseute, R v Ward⁽²⁸⁾, a decision of the English Court of Appeal, Criminal Division in June, 1992 illustrates the gap between principle and practice, rhetoric and reality, and the ethically unacceptable consequences of error or misconduct. It is but one of a long series of instances in which the Court of Appeal, many years later, has set aside a conviction as unsafe and unsound.

In the course of a bombing campaign in 1973 and 1974 thought to be carried out by the IRA, damage and injuries were caused by an explosion at Euston Station; 12 people were killed and others injured by a bomb on a coach on the M26 motorway carrying soldiers and their families; and damage and injuries were caused by an explosion at the National Defence College, Latimer. Shortly after this third incident, Judith Ward was arrested and charged on 3 counts of causing an explosion likely to endanger life or property and 12 counts of murder. The prosecution case was based on confessions made to police officers between arrest and trial, and on expert scientific evidence of traces of nitro-glycerine found on the defendant's person. Judith Ward had not appealled, but in another case⁽²⁹⁾ forensic evidence similar to that which contributed to the conviction had been found by the Court of Appeal to be unreliable and the Home Secretary had referred the matter to the Court of Appeal.

Judgment was given by Glidewell, Nolan and Steyn LJJ:-

We have spoken of "the prosecution". In this term we include four categories of individuals and organisations, namely (1) the three police forces - West Yorkshire, Thames Valley and Metropolitan - which carried out the relevant investigations ...; (2) the staff of the Director of Public Prosecutions and counsel who advised them; (3) the psychiatrists who prepared medical reports on Miss Ward; and (4) the forensic scientists who gave evidence for the prosecution at the trial...⁽³⁰⁾

Their Lordships adopted the salutory words of Lawton LJ:-

[The courts must] keep in mind that those who prepare and conduct prosecutions owe a duty to the court to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence. We have no reason to think that this duty is neglected; and if ever it should be, the appropriate disciplinary bodies can be expected to take action. The judges for their part will ensure that the Crown gets no advantage from neglect of duty on the part of the prosecution⁽³¹⁾.

Most of the individuals and organisations identified by their Lordships as constituting "the prosecution" appear to have failed to a greater or lesser degree in the discharge of their respective duties of disclosure. Accordingly, all relevant evidence of help to the accused was not made available to the defence; nor was it adduced in court. Their Lordships are highly critical of the West Yorkshire Police: "... it was wholly wrong for the statements to be withheld from the Director [of Public Prosecutions]"⁽³²⁾.

Their Lordships are also highly critical of the forensic scientists: "... in a criminal trial involving grave charges three senior government forensic scientists deliberately withheld material experimental data on the ground that it might damage the prosecution case"⁽³³⁾. Their Lordships note that "[f]orensic scientists may become partisan ... [a]nd the adversarial character of the proceedings tend to promote this process. Forensic scientists employed by the government may become to see their function as helping the police. They may lose their objectivity"⁽³⁴⁾. However, "[it] is the clear duty of government forensic scientists to assist in a neutral and impartial way in criminal investigations. They must act in the cause of justice. That duty should be spelt out to all engaged ... in forensic services in the clearest terms"⁽³⁵⁾. This requires "a proper understanding of the nature and scope of the prosecution's duty of disclosure"⁽³⁶⁾.

Finally, and of great significance to the student of lawyers' ethics, their Lordships are highly critical of the lawyers who made the decisions as to the disclosure or non-disclosure of evidence by the DPP to the defence. These "were implemented by Mr Bibby, now a senior prosecutor with the CPS... after consultation with counsel, generally with Mr Brian Walsh (now Mr Brian Walsh QC) who was the junior counsel instructed by the Crown and whom Mr Bibby knew well"⁽³⁷⁾.

Mr Bibby wrote to the appellant's solicitor in a letter dated September 26, 1974 as follows:-

I understand that there were interviews with the defendant and senior police officers on Friday 15th February concrning antecedent and certain peripheral matters, details of which I do not propose to adduce at trial.

The wording of this letter closely followed advice given by Mr Walsh on September 24, 1974. Yet in cross-examination Mr Bibby accepted that the matters discussed in the interviews were central to the issues in the case. He could not explain the use of the word "peripheral". Their Lordships therefore concluded, "It was wholly wrong for Mr Walsh to draft and for Mr Bibby to adopt the language of the letter of September 26, 1974. This letter seriously misrepresented the position"⁽³⁸⁾. It is difficult to imagine a more serious example of an ethically unacceptable outcome flowing from the conduct of the prosecution even if all failings can be attributed to oversight and pressure of work rather than anything morally more sinister.

Judith Ward was 25 years old when convicted. She was 43 when released. Her life has been destroyed and even the reputed £500,000 compensation⁽³⁹⁾ that she may receive from the British Government cannot give her back the wasted years and the lost opportunities visited upon her by "material irregularity" and the failure of the system to ensure that any citizen charged with a criminal offence receives a fair trial.

The implications of this case are disturbing. What the ethical standards are cannot be seriously in doubt:-

"A prosecutor must:

(a) state all the relevant facts;

(b) refrain from stating his own opinion except where necessary and relevant;

(c) reveal any mitigating circumstances;

(d) if invited by the court to do so, inform the court of its sentencing powers;

(e) reveal all relevant cases and statutory provisions known to him whether for or against his case"⁽⁴⁰⁾.

Clearly, it is the duty of the prosecutor, as an officer of the court and a representative of the state, to put truth and justice ahead of securing a conviction⁽⁴¹⁾. Prosecutors have a duty to present matters fairly and in particular must present all the relevant facts to the court even where these facts suggest that the accused is innocent. This was not done in Judith Ward's case. In sum, prosecutors cannot ethically subordinate truth to the zealous pursuit of a conviction. Defence lawyers are in a different position. They have no ethical duty to disclose facts tending to establish guilt. Indeed they have duties of loyalty and confidentiality which preclude the revelation of information acquired in the course of the lawyer-client relationship. There is a crucial asymetry in the respective roles and duties of prosecutors and defence lawyers which is obscured by the use of the term "adversarial process". In truth criminal process is less "adversarial" than is civil process in that one side, the prosecution, has higher ethical duties to ensure that all relevant facts are before the court. That is not the case in civil procedure.

In practice, defence lawyers and prosecutors alike can and do justify their crossing the boundaries of fair play and ethical conduct by reference to the other side's misconduct. Thus zealous prosecutors may "come to believe that any tactic is justified by the pursuit of the holy grail - conviction"⁽⁴²⁾. Prosecutors, being human, are not infallible and the robust and vigorous prosecution of an "obviously guilty" accused may in reality be the persecution of an innocent victim Defence lawyers can and do react to overzealous prosecution with ethically dubious tactics of their own. But it is important to observe the different roles assigned to prosecutor and defence lawyers within an adversarial system of criminal justice.

The asymmetry of ethical responsibility between prosecutors and defence lawyers may be tested by the following hypothetical. Your client [A] is charged with participation in a bank robbery. You have good reason to believe that A is innocent because another client has told you independently that A was involved in a different crime at the precise time of the bank robbery. This is also what your client has told you. Your difficulty is that the prosecution has produced a witness who says that she saw your client near the scene of the bank robbery shortly before it took place. This is true but in fact your client then turned east towards the scene of the actual crime committed and not west towards the bank in question. Your assessment is that this testimony, if left unchallenged, is seriously damaging to your client's prospect of an acquittal particularly because you do not propose to put your client on the stand. You conclude that it is best for your client that the witness is not believed by the tribunal of fact.

You therefore set out in cross-examination to discredit the witness (say, by whatever means it takes), and in the event you succeed. Some would say that your conduct is unethical, claiming that you have knowingly caused the court to be misled, contrary to a widely canvassed duty. Others would argue that discrediting a prosecution witness known to be telling the truth is ethically required of the criminal defence lawyer⁽⁴³⁾. The burden of proof is on the prosecution and if prosecution witnesses cannot stand up to robust cross-examination, your client is entitled to an acquittal.

As to the ethics of my hypothetical, consider what justification might be put for discrediting a prosecution witness known to be telling the truth. It might well be said that the client is innocent (of the crime charged) and the dubious tactic produces the "right" result. In this direction lies danger. In so far as one can judge, that appears to be the justification put by or attributed to those who distorted the criminal justice process in England in order to obtain convictions of those charged with terrorist activities. Charitably it has to be assumed that those prosecutors (and other participants) sincerely believed in the guilt of those convicted as a result of the filtering out of evidence tending to an acquittal. That charitable assumption cannot be made in all cases of miscarriage of justice in England. In some cases the nature of the evidence filtered out raises a strong inference that those involved must have known that the accused could not have committed the crime charged⁽⁴⁴⁾. In any event, consider just how different the ethical responses are to (a) the defence lawyer seeking to discredit a prosecution witness known to be telling the truth and to (b) the prosecutor seeking to secure the conviction of an accused known to be innocent.

The asymmetry of the situation allows us to distinguish the result-pulled conduct of the defence lawyer and that of the prosecution. If the defence lawyer gets it wrong the worst that can happen is that a "factually guilty" individual goes free whereas if the prosecutor gets it wrong, an innocent person is punished. Of course we can all do the Blackstonian calculation differently. Some may say "Better a thousand guilty go free than one innocent be punished". Others may say "a hundred". Sir John Fortescue, a fifteenth century Chief Justice, set the ratio at twenty-to-one⁽⁴⁵⁾. For Blackstone, himself, the figure was a modest "ten" and for Voltaire, an egalitarian "one"⁽⁴⁶⁾. But even on a one-to-one basis, so long as innocence counts as a moral value, the defence and the prosecution are in different positions as to error or misconduct.

If one believes, as I do, that innocence is a primary category of ethical discourse, then one might be willing to allow the defence lawyer more latitude than can be allowed to the prosecution. A first blush this is worrying. Why should we not address all lawyers as lawyers rather than as defenders or prosecutors? Indeed to treat all the same has an immediate intuitive appeal but we should resist its seductive charm. Role morality applies within the legal profession as well as between the legal profession and others⁽⁴⁷⁾. Lawyers are permitted or obliged to do that which would be immoral if done by an ordinary citizen⁽⁴⁸⁾. By extension, criminal lawyers may have permissions and duties different from other lawyers and within the subclass of criminal lawyers, different ethical permissions and duties may apply as between defence and prosecution lawyers. I draw support for this view from the judgment in Ward. Prosecution and defence lawyers have radically different ethical duties in respect of disclosure contrary to what is implied by some strands of the Royal Commission's recommendations and some police comment⁽⁴⁹⁾.

It may appear that all this is harsh on prosecutors and soft on defence lawyers. Given the asymmetry outlined and in light of the formidable opinion of the Court of Appeal in Ward, that "spin" may well be justified. Nonetheless defence lawyers need to look seriously at the quality and ethics of their performance especially in view of Professor McConville's widely reported research in England⁽⁵⁰⁾. He found that a "large proportion" of legal practices provide a substandard service. Instead of challenging prosecution arguments they tended to "process" guilty pleas; they are "assembly lines"; they "trust in an own goal by the prosecution"; they use "unqualified clerks" - 75% of suspects who request a solicitor at police stations are seen by untrained staff. In addition, Justice, the British Section of International Commission of Jurists, reports a 33% increase in allegations of miscarriages of justice, attributable to mistakes by defence lawyers.

Furthermore, one commentator castigates the Royal Commission for its failure "to grasp the fundamental principle underlying the collapse of the criminal justice system and the principal cause of most of the miscarriages of justice - the lack of competence and motivation of defence lawyers. In few of the scandalous cases that have been rocking the system have the defendants at the trial at first instance been competently represented"⁽⁵¹⁾. Whatever the merits of that view, lawyers in general have an ethical duty of competence⁽⁵²⁾ and defence lawyers have a particular responsibility to stand up for the defendant competently and courageously. Yet of 1,300 cases sent to Justice since 1990 about 50% involved complaints about barristers and about 25% complaints about solicitors. It is not clear, however, that the Commission's proposal⁽⁵³⁾ that judges should be readier to recommend the imposition of penalties in costs, reductions in fees, and formal disciplinary proceedings will impact significantly upon the quality of defence lawyering particulary since the Commission also recommends hostile judicial intervention in the face of "time wasting tactics"⁽⁵⁴⁾ or "bullying and intimidatory tactics"⁽⁵⁵⁾. If these recommendations are implemented there will be very little room left between (illegitimate) overzealous defence and (legitimate) conscientious defending. Such imprecise and vague signals are unlikely to have an impact on any but the most gross cases of incompetent defence lawyering⁽⁵⁶⁾.

No doubt many criminal lawyers are poorly remunerated and under very considerable pressure. However, wealth and leisure have never been necessary prerequisites for virtue and a life in the law imposes its ethical demands irrespective of the economics of the situation. Arguably too many criminal lawyers (at least in England) have abandoned the fundamentals of lawyering and the freedoms that earlier generations fought and sometimes died for are under threat. In such circumstances good lawyers - and there are good lawyers - must not sit idly by hoping that it will all work out right in the end. Each must do what can be done to maintain the ethics of the profession and the fundamental values of the criminal process not least beacuse this redounds upon the integrity of the process and the quality of life of all.

As to prosecutorial ethics, I seek to illustrate and confront this thesis with four representative areas of concern, relating primarily to the ethical dimension of the decision to prosecute:

(1) Confession evidence, unsupported by even a scintilla of corroboration;

(2) Identity evidence, particularly where considerable time has elapsed;

(3) Handling goods believed to be stolen, without any evidence as to whether the goods were stolen;

(4) Conflict of evenly balanced testimony.

My thesis here is that in some, perhaps most, of these cases prosecutors should be very reluctant to proceed because the substantial risk of prosecuting or convicting an innocent person outweighs any possible public benefit flowing from such prosecutions. In ethical terms I question the prosecutor's right sufficiently to believe that there is a realistic prospect of a finding of guilt against such suspects so as to justify prosecution with all its attendant risks and costs. Subjective certainty is of itself an insufficient basis for prosecution. Sufficient evidence is required and, at least to one of a sceptical cast of mind, such evidence is not readily available given the nature of cases of these four types.

First, as to confession cases, in R v Pauga⁽⁵⁷⁾ the accused was charged that "at Auckland between April 1 and May 23,1991 he sexually violated by rape a person unknown". The only Crown evidence was a videotaped interview of the accused confessing to an attack on a young woman, culminating in intercourse, with the explanation that he considered that she wanted to have intercourse with him because she was scared that otherwise he would beat her up. Defence Counsel conceded that there was no impropriety on the part of the police in conducting the interview; that there had been no breach of the New Zealand Bill of Rights Act, 1990; and that there had been no overbearing conduct on the part of the interviewing officer.

The accused applied for an order that no indictment be presented on the basis that absence of consent could not be proved from the video interview alone and that such evidence must be available from a complainant. It was further contended that the evidence was insufficient for a reasonable jury, properly directed, to convict. In addition, it was contended that even if there is a common law rule that a conviction can be properly sustained on the accused's confession alone, that rule is limited to establishing the identification of the perpetrator of the crime, and does not relieve the Crown from providing independent proof of the occurence of the offence. That application, and the supporting submissions were rejected by the court.

This outcome is consistent with the relevant English authority, Porter v Court⁽⁵⁸⁾. The defendant appeared on television and said that he had shot deer in the Quantock Hills. Later he repeated this story to a press reporter and confessed to the police that he had shot deer when not in possession of a gun licence. He was charged with killing game without a licence. At trial he stated, on oath, that what he had said earlier was a joke. He was nonethless convicted and appealed on the ground that there was no evidence of the offence before the justices. The Divisional Court dismissed this appeal, Lord Parker CJ holding that the defendant's "own admissions were [sufficient] evidence against him"⁽⁵⁹⁾. The learned editors of the review added by way of commentary that "provided, then, that a court is satisifed beyond reasonable doubt that an accused's confession is true and his evidenc on oath false, it should convict"⁽⁶⁰⁾. An obvious difficulty with this is confirmation of the truth of the accused's confession, absent any corroboration whatsoever.

In my submission, proof beyond reasonable doubt requires something, be it ever so little, by way of corroboration and that this decision and its progeny can justifiably be criticised as eroding a fundamental principle of criminal justice. It follows that an ethically sensitive exercise of prosecutorial discretion in a "pure confession" case would result in the matter being concluded without proceeding to trial. Any other decision is to substitute the subjective certainty or personal hunch of the prosecutor for the objective appraisal of the quality and quantity of evidence for its sufficiency. Helena Kennedy maintains "that it is only by keeping the legal tests for conviction very high that the courts can guarantee the protection of the innocent and maintain respect for the law"⁽⁶¹⁾. She detects a weakening of that protection in a judicial readiness to abandon talk of (what I would call "objectively or inter-subjectively valid") proof "beyond reasonable doubt" in preference for a direction couched in (to my mind the "subjectivist" and unverifiable) language of being "satisifed so that they are sure"⁽⁶²⁾. If that is so, it is all the more important in the interests of justice that prosecutors resist the temptation to proceed on the basis of strong feelings and personal hunches, or ideological agenda. Giving due weight to the sufficiency criterion is an ethical requirement of the prosecutorial role.

Although there is considerable disquiet about the reliability of confessions and about the centrality of interrogation in police practice⁽⁶³⁾, the Commission rejected what some see as "the extreme view"⁽⁶⁴⁾

that uncorroborated confessions should not be admissible and some commentators have not been much impressed with the Scottish approach⁽⁶⁵⁾. However, it has seemed to others, including Kirby J, President of the New South Wales Court of Appeal that England has, close at hand, an alternative procedure which might stimulate imaginative thinking⁽⁶⁶⁾. In my view it is regrettable that the Commission has rejected the "corroboration" solution in favour of the "strong warning"⁽⁶⁷⁾ approach similar to that adopted recently by the slimmest of majorities in the High Court of Australia⁽⁶⁸⁾.

In a powerful and instructive dissenting judgment, Dawson J notes that trial judges have long been required to warn juries of the dangers of convicting on the uncorroborated testimony of witness falling into certain categories:- accomplices, victims of sexual offences, and children. Dawson J observes that in many jurisdictions the second category has been reduced or eliminated by statute [as both demeening to women and intrinsically irrational] and suggests that the modern tendency has been to to resist any extension of such suspect categories of witnesses. Yet the majority of the High Court decided on, and the Royal Commission recommends, just such an extension⁽⁶⁹⁾. In the opinion of Dawson J this amounts "to a requirement that the trial judge direct the jury to suspect the police of having availed themselves of the opportunity to fabricate a confession whenever the opportunity to do so without contradiction, other than by the accused, arose. Of course there have been significant occasions where the police have given untruthful evidence, including the falsification of confessions ... but untruthful evidence is not the prerogative of the police and their evidence suffers from no inherent defect calling for a compulsory warning regardless of the facts of a particular case"⁽⁷⁰⁾.

Arguments against the corroboration approach are as unflattering to the police as is the categorisation of (all) police witnesses as inherently unreliable:- it is said that since police officers currently fabricate confessions, police officers will in future fabricate corroborative evidence⁽⁷¹⁾. Even if this general slur on and sweeping mistrust of police officers - "the Sunshine State theory of government"⁽⁷²⁾ - is not otherwise misconceived, there are obviously greater risks of discovery attaching to the fabrication both of a confession and of supporting evidence. In any event no improvement in the English criminal justice system is possible without improvements in police ethics. Considerable effort is currently going into a re-evaluation of policing and towards raising ethical standards⁽⁷³⁾.

It is sometimes suggested that the corroboration rule does not necessarily prevent miscarriages of justice in Scotland⁽⁷⁴⁾. This may be due in part to a progressive erosion even in Scotland of the principled requirement of evidence from two independent sources before the jury can hold guilt to have been established beyond reasonable doubt. Thus it can nowadays be plausibly argued that a corroboration rule on the current Scottish model would make no difference to the incidence of miscarriages of justice⁽⁷⁵⁾. However that may provide a very good reason for restoration of the classical Scottish practice rather than a reason not to reform English.

Despite such erosion, and scepticism of the utility of the Scottish model as applied to the corroboration of confessions⁽⁷⁶⁾, it is, in the context of prosecutorial ethics, worth emphasing that the Scottish approach is "rooted in an awareness of the risk of error through the human fallibility of witnesses and jurors in general"⁽⁷⁷⁾. This potential for error is met by the minimum requirement for proof beyond reasonable doubt of evidence from two independent sources. This may, of course, lead to some guilty individuals not being convicted or even prosecuted but that is to be preferred to the alternative, the prosecution and, perhaps, conviction of the innocent. Given that in Scotland the Crown must prove that the crime was committed, neith Pauga nor Porter could have faced prosecution, let alone conviction on the evidence available. Prosecutors should be mindful of the demands imposed by the requirement of proof beyond reasonable doubt and, as a matter of professional ethics, should be reluctant to proceed on the basis of uncorroborated confessions given the risk of injustice⁽⁷⁸⁾.

The second type of case relates to identity evidence after a considerable period of time has elapsed. Here thoughts must turn to war crimes trials in which the identity of the accused as the individual who very many years earlier perpetrated unspeakable atrocities must be established beyond reasonable doubt. In one such case, tried in Adelaide in 1993, very considerable court time and public money were consumed in prosecuting but the jury acquitted with little deliberation⁽⁷⁹⁾. It is not clear that such a prosecution was in the public interest but, more to the point, it is difficult, at least from the outside, to see that there was sufficient admissible, substantial and reliable evidence of identity to offer a realistic prospect of conviction. Even experienced and ethically sensitive lawyers "...may fall into the danger of become too prosecution minded. It is very difficult at times for the prosecutor to stand back ... because the very nature of his job is that he sometimes inevitably adopts a cynical attitude to what he sees"⁽⁸⁰⁾. By way of contrast with the outcome in Australia, in Scotland Crown counsel decided "after careful consideration, that, as matters stand, there is not present sufficient evidence available for a criminal prosecution in any of the cases reported to them"⁽⁸¹⁾.

In R v Clinton⁽⁸²⁾, the Court of Appeal set aside a conviction on the basis of defence counsel's incompetence. On January 4, 1991 the appellant was convicted of kidnapping and indecent assault and sentenced to six years imprisonment. The victim described her assailant as being "a white male, 20 to 25 years, 5' 8" tall, 11½ to 12 stone, no fat stomach, dark brown curly, messy hair, no style. He was grubby looking, had acne marks on his face, particularly on the cheeks, and he had red marks by his right temple, maybe where he had made some spots bleed. No moustache or beard, slim face with slightly drawn cheeks. I think he may have had a chipped front tooth, parted lips, no marks, scars or tattoos, or jewellery that I can remember. I am unsure of his clothing but I think that he may have had a dark collarless shirt".

During the course of the subsequent investigation the victim was shown no fewer than 150 photographs of potential suspects but was unable to recognise anyone as her assailant. However 14 months later she saw the appellant and immediately recognised him, so she said, as her assailant more than a year before. The case against the appellant depended almost entirely upon the correctness of the victim's identification. In fact the appellant differed in important respects from the original description. He is six feet tall, he has tattoos on all the fingers of both hands, and a scar on his right hand. The tattoos and scar antedated the incident in question.

The appeal turned and succeeded on the gross unwisdom of defence counsel failing to put the appellant on the stand and to challenge the identication evidence. The Court of Appeal took the view that this so seriously affected the outcome as to justify setting aside the original conviction. In doing so the Court of Appeal was influenced by the fact that among the questions raised by the jury during its deliberations was one relating to the prominence and history of Clinton's tattoos and by the fact that the police had suppressed parts of the original description despite the fact that they had in their possession for many years evidence as to the appellant's correct height and tattoo marks because the appellant has a long history of minor offences. It is unclear from the report at what stage, if any, a conscientious prosecutor might have begun to have doubts about the quality of the identification evidence but until such time as there is closer involvement by prosecution lawyers in the review of all the police evidence, I submit that a conscientious prosecutor should test identification evidence with anxious care lest, as in this case, someone is unjustly prosecuted, convicted and imprisoned on the basis of incomplete or misleading evidence.

In another illustrative case involved Ivan Fergus, "a model schoolboy", who was convicted of assaulting a bank clerk. The Court of Appeal thought his barrister's conduct of the case "fell markedly short" of the Bar's standards, even though he had also been poorly briefed by the boy's solicitors. Available alibi witnesses ought to have been called but were not. The Court of Appeal also criticised the trial judge for failing to intervene and withdraw the case because it relied entirely on very weak identification evidence. As a result of the combined incompetence of the solicitors, the barrister, and the judge, Ivan Fergus spent six months in a young offenders' institution. If the criticisms of the judge are well-taken, then a question also arises about the conduct of the prosecutor who ought to have considered with rather more anxious care than appears to have been exhibited whether there would have been any realistic prospect of conviction if all the relevant facts were brought to court, particularly given the dubious identification evidence⁽⁸³⁾.

The third type of case is illustrated by the facts in Anderton v Ryan⁽⁸⁴⁾: PC Nattan visited Mrs Ryan's home at her request in respect of an alleged burglary. During his inquiries the officer's suspicions were aroused when Mrs Ryan admitted to having bought a video recorder for £110. PC Nattan suggested that this "was well below the price of a video ... [and that Mrs Ryan] obviously knew it was stolen". Mrs Ryan responded; "I may as well be honest, it was a stolen one I bought, I should not have phoned you". Mrs Ryan also stated that the video recorder was "damaged at the back". At no time did PC Nattan see the video recorder and was unable to give any evidence as to its condition or value.

On such facts, there would be difficulty in sustaining a charge of dishonestly handling stolen goods, contrary to Section 22 of the Theft Act, 1968⁽⁸⁵⁾ because the wording of that section requires independent proof that the goods in question were and remain stolen and the case law indicates that mere suspicion⁽⁸⁶⁾ or wilfull blindness⁽⁸⁷⁾ or belief (unless true)⁽⁸⁸⁾ will not suffice. There is a significant issue of policy, here: Ought one who receives goods aware of a risk that these goods may (or may not) be stolen goods be convicted of handling (if at all) only if the goods do turn out to be stolen ? Is that not too great a restraint on commercial activity ? Should people not be free to snap up a bargain unless they positively know that the item is stolen ?⁽⁸⁹⁾ As a matter of legislative technique it would be simple enough to restructure section 22 to implement such a policy, if that was thought expedient by relocating the "stolenness" in the mental element rather than in the actus reus, thus: "A person is guilty of an offence if, knowing or believing goods to be stolen ...". It is by no means certain that Parliament would accept the policy change implicit in such an amendment if the question was squarely put.

In the event, relying upon the Criminal Attempts Act, 1981, in Anderton v Ryan the prosecution ultimately favoured the novel charge of attempting to handle stolen goods. Mrs Ryan was acquitted by the justices; the Queen's Bench Division allowed an appeal by the prosecutor and, by a majority of four to one, the House of Lords allowed Mrs Ryan's appeal and reversed the decision of the Queen's Bench Division. The general matter does not end there, however, because 53 weeks later in R v Shivpuri⁽⁹⁰⁾ the House of Lords overruled⁽⁹¹⁾ its own decision in Anderton v Ryan in terms which strongly suggest that anyone who handles goods they believe to be stolen may be charged and convicted of attempting to handle stolen goods, even though there is no evidence either way as to whether the goods were stolen. It is not clear that this change in policy was an intended consequence of the Criminal Attempts Act, 1981 and certainly there have been very different views on this and related matters among the commentators⁽⁹²⁾

In these circumstances it is easy to sympathise with prosecutors who are uncomfortable about bringing prosecutions absent any evidence that the goods in question were stolen⁽⁹³⁾. If there is any virtue in the view that it is neither dishonest nor contrary to public policy to avail oneself of a bargain absent positive belief that the item has been stolen, prosecutors should not be astute to find grounds to proceed; a fortiori since Section 22 is regarded as creating an offence of greater seriousness and moral turpitude than theft itself. The question here is not merely about the legitimacy of prosecuting on the basis of "pure belief" but also about the public interest dimension of prosecutorial discretion, especially in circumstances where current ("black letter") law may be inconsistent with ("true") public policy and the public interest. This opens up the further question of the ethical role of prosecutors confronted by bad laws⁽⁹⁴⁾.

The fourth area of concern is possibly the most controvertial, both legally and ethically. Here I argue that where there is a conflict of evenly balanced testimony a conscientious prosecutor should be reluctant to proceed because the outcome of any trial is wholly contigent on extraneous factors such as the appearance of the accused and witnesses or the respective professionalism and impact of the two teams of lawyers. In such circumstances it is difficult to detect in advance the realistic prospects of conviction that are rightly regarded as a necessary precondition for an ethically defensible decision to proceed.

Consider first the conflicting statements of Professor Anita Hill and Judge Clarence Thomas⁽⁹⁵⁾:- "One, we know, told the truth; the other lied"⁽⁹⁶⁾. The difficulty is who to believe:- "Either he is a liar, or she is a sociopath; either he is guilty of horrifying abuses of power or she is guilty of inventing them ... Either he said these wretched things to her ... or he did not"⁽⁹⁷⁾. How is one to decide ? Some have no doubts⁽⁹⁸⁾ but such subjective certitudes, based as they are a priori either upon some supposed general validating force of collective feeling and experience, or upon a general repudiation of patriarchal values, do not, and logically cannot, answer the particular question posed. That must be a matter of evidence, including testimony, but where all the evidence is evenly balanced there is no more or less reason for preferring either account to the other. Clarence Thomas may or may not have said these wretched thing to Anita Hill, we know not which.

Agnosticism on the question of sexual harassment carries with it no presumption that Clarence Thomas was more than minimally qualified for appointment as the 106th Justice of the United States Supreme Court, let alone that he was the "best man for the job on merit" as the President had asserted⁽⁹⁹⁾. Indeed what is instructive about the Clarence Thomas matter is that there are no controlling presumptions, least of al that the onus of proof was somehow on Anita Hill. Ordinarily, a candidates for the highest judicial office might be expected to be above suspicion and certainly "an accusation of such weight as sexual misconduct would probably have disqualified a white candidate on its face. Rather than the need for any 'proof', the slightest possibility that it was publicly verifiable would have nullified the candidacy ..."⁽¹⁰⁰⁾. In the event the Senate voted only 52 to 48 to confirm Clarence Thomas with, therefore, the largest number of negative votes for any successful Supreme Court nominee in history⁽¹⁰¹⁾.

Presumptions do apply, however, where criminal process is invoked. Thus where accusations of sexual harassment or misconduct amounting to allegations of rape are made, the accused is entitled to a presumption of innocence, prosecution is conditional upon there being sufficient evidence and its being in the public interest, and ultimately conviction and punishment are conditional upon proof beyond reasonable doubt of guilt. Yet recent events in England suggest that prosecutors are willing to institute proceedings for rape in the absence of sufficient evidence and, perhaps, without due consideration of the public interest⁽¹⁰²⁾.

There is widely shared concern that conviction figures in rape trial are very low, about 25%⁽¹⁰³⁾. There is much less agreement as to what such figures betoken; that too many guilty individuals are going free and/or too many innocent individuals are facing prosecution. Either way there is cause for concern. Suggested explanations for the low rate of convictions⁽¹⁰⁴⁾ include a perceived imbalance in court proceedings which favour defendants, too great a readiness of the police and the Crown Prosecution Service to anticipate acquittal, the absence of any corroborative evidence⁽¹⁰⁵⁾,and the potential for some incidents to be interpreted as consensual. The Crown Prosecution Service has also been accused of failing to prosecute in cases where the victim of an alleged rape is a prostitute⁽¹⁰⁶⁾.

Much of the criticism seems unfair, misconceived or ideologically motivated. Consistent with general principles, absent sufficient evidence to give a realistic prospect of a conviction, the case simply should not proceeed to trial. It is, therefore, perplexing in the extreme that Austen Donnellan was prosecuted. Even women's organisations are puzzled: "Women Against Rape doesn't know why the CPS prosecuted the Donnellan case, where the woman could not remember what happened, when it regularly won't prosecute where the woman clearly remembers refusing consent. But we do know how the Donnellan case has been used"⁽¹⁰⁷⁾. The suggestion appears to be that the Donnellan case is being used to weaken the position of women and that the Crown Prosecution Service is somehow party to that endeavour. The reality may well be that there has been an excess of prosecutorial zeal, perhaps fuelled by the sustained criticisms already noted and moral panic about rape.

The possibility of overzealous prosecution would account for the remarkable cases of Austen Donnellan and Ian Kydd⁽¹⁰⁸⁾ and for an extraordinary recent case at Chester Crown Court⁽¹⁰⁹⁾. That trial related to two allegations of rape against the defendant father, occurring more than twenty years ago when the complainant daughter was aged between 8 and 11. His Honour Judge Robin David held that it was "little short of bizarre to try an issue which depended upon the recollections of witnesses of events more than 20 years ago". Accordingly, the judge stopped proceedings on the basis that in such circumstances there could not be a fair trial. The Crown's argument was that the defendant had admitted that the acts could have taken place while he was drunk and since the case depended upon the relative credibility of the complainant and the defendant the matter was one that a jury should decide. It is very difficult to understand how a prosecutor can believe that there is a realistic prospect of conviction in such circumstances⁽¹¹⁰⁾.

In light of the Royal Commission's comments⁽¹¹¹⁾, these matters are due for reconsideration but whilst a greater judicial power to intervene to stop inappropriate trials proceeding further is to be welcomed, that is no substitute for ethically proper prosecutorial conduct. By the time a judge can stop an inappropriate trial, the defendant has already suffered considerable injustice⁽¹¹²⁾ and it is incumbent upon the prosecutor "to do right to all manner of people"⁽¹¹³⁾.

There are limits to what can be achieved through the criminal justice system. In particular, prosecutorial ethics may proscribe prosecution of anyone for some morally obnoxious incidents. In some cases the truth simply cannot be established. The answers to the really important questions in the Kennedy-Smith, Tyson, Donnellan, and Kydd cases are known to no one but the primary participants themselves, if they are known even to them. Truth, however, frequently appears to be casualty of the anglo-american criminal justice system. Indeed, "the search for truth does not appear to be an objective of the English criminal justice process and yet, for everyone else outside the band of the legal cognoscenti and perhaps the perpetrator himself, this is a staggering perception"⁽¹¹⁴⁾. The Anglo-american criminal trial is not to establish truth but to convince the jury beyond reasonable doubt of the guilt of the accused. This is perceived as encouraging the prosecution to accumulate only information that reinforces the initial presumption of a suspect's guilt in order to build "a bullet-proof case"; as leading to "pit bull confrontations"; to potentially oppressive plea-bargaining; and to the fabrication of evidence. A widely canvassed solution is to adopt at least some aspects of the French system, in particular, the supervisory role of the juge d'instruction⁽¹¹⁵⁾. But the land of Dreyfus is not without its own miscarriages of justice one hundred years later and there is sufficient interest in adopting some aspects of the Anglo-american system for the French justice minister to visit Uxbridge magistrates'court as part of a drive towards "justice de proximité", that is, lay participation or "people's justice"⁽¹¹⁶⁾. It seems that both systems may have something to learn from each other.

In conclusion, I believe that lawyering in all its forms makes judgement calls and I further believe that these calls are necessarily ethical, calling upon the lawyer conscientiously to address questions of right and wrong in a bewildering range of particular circumstances. That brings us to applied ethics and the interface between general moral principles and individual discretion. At the margins reasonable individuals may reasonably differ. Ethics is not about arriving at the one right answer. Nor can ethical problems be solved once and for all by legislative fiat. Judgment calls will be made and there will always be a margin of individual appreciation in the applying of rules of law, procedure and ethics to the concrete facts in real life.

For that reason, one can only have limited enthusiasm for codes of ethics for lawyers in general and for prosecutors in particular unless such a code is a body of general principles and standards which function as guidelines rather than as all-or-nothing rules which purport exhaustively to predetermine outcomes and eliminate the need for engaged reflection and conscientious decision making at the point of application. Those operating within the procedural rules of the criminal justice system may do so cynically or sensitively. Sensitivity to the values that the procedural rules seek to secure is much more likely to further those values than is cynicism. Ultimately rules of procedure, like all rules, depend upon interpretation and interpretations can differ. Such difference may be explained in some instances by reference to the values consciously pursued or subconsciously presupposed by the interpreter. These values need to be made more explicit and tested against the values which inform the criminal justice system. In particular, a prosecutor's natural commitment to victory should not subordinate the discovery of truth and the pursuit of justice, fair play and decency.

Lawyers' ethics matter; not simply to lawyers, but to everyone because erosion of lawyers' ethical standards redounds upon the quality of the criminal and civil justice systems and ultimately upon the quality of life. Lawyers' ethics matter too, not only to practising lawyers but also, and importantly, to law teachers who must convey some sense of the process values of the law and of the ethical standards essential to good lawyering. In the subject of lawyers' ethics, regrettably, legal education in England and in Scotland lags nearly twenty years behind America, and some years behind Australia, and the ethical dimension of lawyering remains subordinated in many universities to the pursuit of doctrinal expertise. But there is more to law than the letter, or the reasoning, however sophisticated. There is also ethical sensitivity and judgment and if, as I believe, a life in the law is necessarily an adventure in applied ethics, a legal education that rests content with doctrinal expertise alone is radically incomplete. Accordingly, I hope that this paper will be received not only as a contribution to the criminal justice debate but also to a continuing conversation about legal education and a revivification of lawyer-centred jurisprudence⁽¹¹⁷⁾.

=========================

1. R v McIlkenny and Others [1992] 2 All ER 417.

2. For example, The Cardiff Three, R v Paris, Abdullahi, and Miller, heard on December 16 and reported in The Times, December 24, 1992; see, too, David John Parris (1989) 89 Crim App Rep 68 as an example of a miscarriage of justice flowing from breaches of section 58 of the Police and Criminal Evidence Act, 1984 and of the codes of practice.

3. Contrast, for example, the views of the Rt Hon the Lord Taylor of Gosforth, The Lord Chief Justice, New Law Journal, January 28, 1994, pp 125-129 on aspects of the right to silence, specifically Clause 28 of the current Criminal Justice Bill with the editorial commentary in the Police Journal of January 1994 at p.2

4. The case of George Heron was widely reported as causing "trench warfare" to break out between police and lawyers, with demands for appropriate police training including "ethical" interviewing" techniques; see The Times, November 11, 1993 and Professor Zander's comments in The Daily Telegraph. Despite trenchant criticism of police interviewing techniques in this case, the Chief Constable of South Wales was reported in the journal Police, as having spoken for the majority of the force when he said, quite unequivocally, that the officers "had done nothing wrong".

5. Herbert L Packer, "The Models of the Criminal Process" 113 University of Pennsylvania Law Journal 1 (1964) and The Limits of the Criminal Sanction (Stanford University Press, 1968.)

6. Doreen McBarnett, "False Dichotomies in Criminal Justice Research" in Baldwin and Bottomley (eds.) Criminal Justice: Selected Readings (Oxford, Martin Robertson, 1978, pp 23-34; McConville and Baldwin, Courts, Prosecution, and Conviction (OUP, 1981).

7. Helena Kennedy, Eve Was Framed (Chatto & Windus, London,1992); Michael Mansfield, Presumed Guilty (Heinemann, London, 1993).

8. Kennedy, op cit, p 3.

9. Kennedy, op cit, p 278.

10. Mansfield, op cit p ix.

11. Mansfield op cit p x.

12. Kennedy, op cit p 3.

13. Mansfield, op cit, p 277.

14. ibid.

15. See Ian Leigh, "Matrix Churchill, Supergun and the Scott Inquiry" [1993] Public Law 630 and, more generally, D Leigh, Betrayed: The Real Story of the Matrix Churchill Trial (London, 1993).

16. John Mackenzie, "The Royal Commission on what ?" New Law Journal, July 16, 1993, p 1035: "I had assumed in my naive way that the recommendations put forward by a Royal Commission set up to prevent miscarriages of justice might contain the odd recommendation that might prevent a miscarriage of justice. I could not find one".

17. Karl Popper, The Open Society asnd Its Enemies (5th edn, revised, Routledge & Kegan Paul, London, 1966) Vol I, p 126.

18. Andrew Rutherford, Criminal Justice and the Pursuit of Decency (Oxford Paperbacks, OUP, 1993), p xii.

19. See K J Crispin, "Prosecutorial Ethics", paper presented at the International Symposium on Legal Ethics held in the Faculty of Law, Griffith University, Brisbane in August, 1993 under the auspices of the National Institute for Law, Ethics and Public Affairs. See, too, the same author's The Dingo Baby Case (Lion Paperbacks, Sydney, 1987)for an account of one of Australia's celebrated miscarriages of justice; Lindy Chamberlain, Through My Eyes (Mandarin Australia, Melbourne, 19900; Malcom Brown and Paul Wilson, Justice and Nightmares (New South Wales University Press, Sydney, 1992); K Carrington et al (eds), Travesty!(Pluto Press, New South Wales, 1991); Anderson (1991) 53 A Crim R 421.

20. Brian A Sun, "The Overzealous Prosecutor" 18 Litigation 38 (1992); Martin Yant, Presumed Guilty: When Innocent People Are Wrongly Convicted (Prometheus Books, New York, 1991); Nick Davies, White Lies (Chatto & Windus, London, 1991).

21. As explained both by Barbara Mills DPP, Lecture Oxford University, Faculty of Law, May 25, 1993 "Working in the Interests of Justice" and in the CPS job advertisements and information supplied to referees. One of Andrew Rutherford's interviewees, "B3" comments that "the Crown Prosecution Service is still learning about the concept of the 'public interest'. We are trained as lawyers, and therefore the evidential criteria do not present many difficulties. But the public interest criteria are not straightforward, and it is sometimes difficult to ask young lawyers to suddenly start thinking in terms of philosophy, morality, public morale, and other nebulous concepts. It has to be done, and it is entirely right and proper that we are not obliged to enforce the letter of the law in every case but [can] look more widely as to whether cases need to be proseucuted in the public interest", op cit, p38; see, too, Crown Prosecution Service, Annual Reports, 1986-87 and 1993-93, and The Telegraph, July 7, 1993.

22. HC Debates, Vol 483 col 681, January 29, 1951.

23. Another of Rutherford's interviewees, "B6" is reported as having said, "I am concerned, at times, that the CPS lawyers I meet from other areas are not switched on to the public interest. I am very keen to get away from the view that, because a man is going to plead guilty, you prosecute him. I want every case looked at, and looked at with some detail there. I have some sympathy for people who are committing one offence. I think at times that the consequences of the prosecution are so out of all proportion to the offence that it is entirely wrong to give that man a criminal record, and it does not matter to me whether he is a juvenile or a young adult, or an even older person. Anyone can have a moment of madness, criminal madness even, and I do not think it's right to let that particular moment blight their whole caceer and their life. Public interest does not insist upon prosecution. As a solicitor, I defended two women who were accused of shoplifting, first-time offenders, and they went through agonies waiting for the court case; they had gone onto tranquillizers, and it affected their lives, their marriages, their relation - everything. Irrespective of whether they did it or not, I am not sure that the prosecution was worth that effect on human life, and I have always tried to steer away from what I thought were repressive prosecutions". Rutherford, op cit p 130.

24. William H Simon, "The Ideology of Advocacy, Procedural Justice and Professional Ethics" Wisconsin Law Review 29 (1978), "Ethical Discretion in Lawyering" 101 Harvard Law Review 1083 (1988), "The Ethics of the Criminal Defence Lawyer" Michigan Law Review 1703 (1993); David Luban, Lawyers and Justice: An Ethical Study (Princeton University Press, 1988); T Shaffer, On Being a Christian and a Lawyer (1981); Monroe H Freedman, "Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions" 64 Michigan Law Review 1469 (1966), but see also the same author's "The Professional Responsibility of the Prosecuting Attorney", 55 Georgetown Law Review 1030 (1967).

25. Irene Donellan was reported in The Times of February 11, 1994 as concermed that her son, though not guilty of the rape of a fellow student at University College, London for which he had been prosecuted had to reply "Yes" to some job application forms that include the question, "Have you ever been charged with a criminal offence ? Mrs Donellan believes that her son has been prejudiced by events. The mother of Austen Donellan's accuser also complains bitterly that her daughter's life has been ruined by the trial, The Times, October 20, 1993.

26. See Richard H S Tur, "An Introduction to Lawyers' Ethics" 10 Journal of Professional Legal Education 217 (1992).

27. Barbara Mills, DPP, loc cit.

28. New Law Journal, June 19, 1992, pp 859-862 [1993] 1 WLR 619; and see, further, R v Davis, Rowe and Johnson [1993] 1 WLR 613.

29. R v Maguire and Others [1992] 2 All ER 433.

30. New Law Journal, June 19, 1992, p 859.

31. R v Hennessy (1979) 68 Cr App R 419, 1t 426.

32. New Law Journal, June 19, 1992, p 860.

33. New Law Journal, June 19, 1992, p 861.

34. ibid.

35. New Law Journal, June 19, 1992, p 862.

36. ibid.

37. New Law Journal, June 19, 1992, p 860.

38. ibid., italics added.

39. Courier-Mail (Brisbane, Australia) May 13, 1992.

40. Frances Silverman, Handbook of Professional Conduct for Solicitors (Butterworths, London 1989) p12.

41. Mr Justice John H Phillips quotes R R Kidston QC who described in 1968 the duties of the Crown Prosecutor as follows: "Neither to indict, nor on trial to speak for conviction except upon credible evidence of guilt; nor to do even a little wrong for the sake of expediency, or to pique any person or please any power; nor to be either gullible or suspicious, intolerant or over-pliant: in the firm and abiding mind to do right to all manner of people, to seek justice with care, understanding and good countenance". The Australian Law Journal, May, 1991, p 290.

42. Brian A Sun, "The Overzealous Prosecutor", 18 Litigation 28, 38(1992).

43. Monroe Freedman op cit (note 40), T Shaffer op cit (note 40)

44. The tragic story of Stefan Kiszko's convictioon for the murder of Lesley Molseed is illustrative. See (1978) 68 Cr App Rep 62 and The Times, February 18 and 19, 1992; and Mansfield, op cit, p 230, "... the fact remained that undeniable evidence of Stefasn Kiszko's innocence was in the hands of the prosecution at the time of his trial but it was not produced in court. Semem was gathered from the scene of the murder, taken from the girl's clothing and there was no doubt that it belonged to the murderer. The crucial point was that it contained spermatozoa and therefore could not have come from Stefan as he was infertile".

45. De Laudibus Legum Angliae (c1470).

46. Sir William Blackstone, Commentaries on the Laws of England (1765-1769), vol iv, p 27; Voltaire, Zadig (1747).

47. On the notion of role morality and its potential to confront traditional ethical theory see Virginia Held, "The Division of Moral Labour and the Role of the Lawyer" in David Luban (ed), The Good Lawyer: Lawyers' Roles and Lawyers' Ethics (Rowman & Allanhead, New Jersey, 1984), p.60, and the same author's "Feminism and Moral Theory" in Eva Feder Kittay & Diane T Meyers (eds), Women and Moral Theory (Roman & Littlefield, 1987), p 111.

48. See Richard H S Tur, "Confidentiality and Accountability" 1 Griffith Law Review 73 (1992); Joe Beltrami, A Deadly Innocence (Mainstream, Edinburgh, 1989), p 19.

49. Recommendations 132-138, and see John Evans, Chief Constable of Devon and Cornwall, "Miscarriages of Justice - A Police Perspective", 66 Police Journal 9 (1993: "Nothing has ben so ill-conceived in the development of the criminal law of late as the matter of disclosure ... There is no justification for the current wide ranging 'fishing expedition' and no logical argument that the prosecution should disclose whatever information or evidence it has, whether material or not, used or not, which does not apply equally to the defence ... If there is to be disclosure, let both sides disclose !". Well might the Royal Commission recommend (64) that "Police training should include instruction in the role solicitors are properly expected to play in the system" !

50. For example, Independent on Sunday, July 12, 1992.

51. John Mackenzie, New Law Journal, July 16, 1993, p 1035.

52. Richard H S Tur, "The Ethics of Competence and the Ethics of Immunity",(unpublished); paper presented at the Middle Temple on January 20, 1994.

53. Recommendation 246.

54. Recommendation 180.

55. Recommendation 182.

56. For example, R v Clinton [1993] 2 All ER 998 and the case of Ivan Fergus reported in The Independent of June 29, 1993 and featured in The Independent of July 5, 1993, reporting on the Royal Commission, under the headline, "Judges to be told to get tough with bad defence lawyers".

57. [1992] 3 NZLR 247.

58. [1963] Crim L R 39.

59. [1963] Crim L R 39, 40.

60. ibid.

61. Kennedy, op cit, p 3.

62. Kennedy, op cit, pp3-4.

63. See, as representative, Gisli Gudjonsson, The Psychology of Interrogation (Wiley & Sons, Chichester, 1992) and "The Psychology of False Confessions", New Law Journal, September 18, 1992, p 1277 indicating that even those not mentally handicapped can make false confessions to serious crimes such as murder, that the presence of solicitors and the practices of tape recording or video-taping does not guarantee the absence of false confessions, and that reliance on "special knowledge" of the offence as corroboration may be seriously misleading ; R v McKenzie, New Law Journal, August 14, 1992, p 1162; Jacqueline Hodgson & Mike McConville, "Silence and the Suspect", New Law Journal, May 7, 1993 isolating inappropriate forms of questioning which are "directed towards obtaining confessions rather than gathering information and evidence and do not allow suspects to give a fair account of their activities. As such they increase the likelihood of unreliable confessions and constitute another reason why silence may legitimately be asserted during interrogation". Of note, however is that less than 25% of suspects refuse to answer some questions and only 4 (out of 180 monitored) refused to answer any questions. The impact of the loss of the right of silence is not likely adversely to impact directly on many suspects but it does reinforce existing police practices that place and almost religious faith in extracting confessions as the proper mode of policing crime rather than, say, investigation of facts and testing of evidence on which see further, M McConville, A. Sandars, and R Leng, The case for the Prosecution (1991), PP 56-57; Ed Cape, "Police interrogation and interruption", New Law Journal, January 28, 1994, suggesting guidelines for intervention by defence lawyers in order to secure conformity with the PACE codes.

64. See Ian Dennis, "Miscarriages of Justice and thde Law of Confessions: Evidentiary Issues and Solutions" [1993] Public Law 291-313, 303.

65. See R Pattenden, "Should Confessions Be Coroborrated ?" 107 Law Quarterly Review 317, and Ian Dennis, op cit.

66. (1991) Commonwealth Law Bulletin 1037, 1041

67. Recomendations 89 and 90.

68. McKinney and Judge v The Queen (1990-1991) 171 CLR 468.

69. Recommendations 89 and 90.

70. 171 CLR 486, 489.

71. See, for example, Dennis, op cit, p 311.

72. "'If you ask me, all Brisbane's full of coppers and all of them bastards', she said, expressing in one concise sentence the full theory of government in the Sunshine State", Criens Rohan, The Delinquents (1962); but see Commission of Inquiry Pursuant to Orders in Council 1989, Report, May 26 1987, August 25 1988, June 29, 1989 (Chairperson G E Fitzgerald QC) Government Printer, Brisbane.

73. See Chief Superintendent Paul Acres, Merseyside Police, "The Royal Commission - Cataclysm or Catalyst ?" 65 Police Journal 109-125 (1992); and Sergeant Andrew Dale, "A Philosophy of Policing" 67 Police Journal 19-25; see further Joycelyn M Pollock-Byrne, "Ethics in Crime and Justice: Dilemmas and Decisions (Brooks/Cole, California, 1989), Chapter 5 "Ethics and the Police"; and Professor Zander's pioneering work in this area, "Ethics and Crime Investigation by the Police", Police Staff College Seminar, January 25, 1994. The author himself presented a half day seminar to senior officers of the Singapore Police Force on September 28, 1993 entitled "Miscarriages of Justice, Prosecutorial Ethics and Police Practices".

74. Lord Ross, The Lord Chief Justice of Scotland is reported in the Glasgow Herald of October 10, 1991 as saying that "... we certainly have had cases where there must be a strong suspicion that police have given false evidence",(cited by Sheriff I D MacPhail QC, "Safeguards in the Scottish Criminakl Justice System" [1992] Crim L R 144-152, at p 144). A possible instance of miscarriage of justice in Scotland is the case of Raymond Gilmour, a self-confessed flasher, convicted in June, 1982 for the rape and murder of a local schoolgirl, Pamela Hastie in Rannoch Woods, Johnstone, who has protested his innocence throughout; The Scotsman, January 10, 1993.

75. Sinclair v Clark 1962 JC 57; Hartley v HMA 1979 SLT 26; Hutchison v Valentine 1990 SCCR 569.

76. See MacPhail, op cit; Pattenden, op cit; Dennis, op cit.

77. MacPhail op cit, p 149.

78. One of Rutherford'd interviewees, "B2, a chief crown prosecutor" is reported as having said, "Since 1986 prosecutors have become more and more aware of protecting the integrity of the confession and this has been encouraged by some of the more appalling cases that have hit the media. Prosecutors are particularly cautious when faced with uncorroborated confession evidence", Rutherford, op cit, p 127.

79. [to be added]

80. Rutherford, op cit p 14, reporting the words of "B1, a chief crown prosecutor".

81. As reported in the New Law Journal of February 11, 1994, p 186. Although Anthony Gecas is not to stand trial in Scotland, it is thought likely that proceedings will commence in England before the end of 1994 against three alleged war criminals; New Law Journal, January 21, 1994, p 78. The different outcomes as between Scotland on the one hand, and Australian and England on the other suggests that the legal tests and ethical standards for prosecution remain higher in Scotland, despite some erosion of fundamental principle in relation to the self-corroboration of confessions.

82. New Law Journal, April 2, 1993;[1993] 2 All ER 998.

83. The Independent,June 29 and July 5, 1993; see, too, R v Daley [1993] 4 All ER 86; a decision of the Privy Council on appeal from Jamaica which holds that a judge ought to withdraw the case from the jury if it was based on identification evidence which, even if taken to be honest, was so slender that it was unreliable and therefore not sufficient to found a conviction. It is difficult to see how a prosecution could ethically proceed in such circumstances given the requirement of reliable evidence as a condition of prosecution; see, too, Junior Reid v R; Errol Reece and others v R [1993] 4 All ER 95. The approach of the Privy Council seems to go a long way towards achieving the outcome sought by recommendation 86 that a judge may stop any case if the prosecution evidence is unsafe, or unsatisfactory or too weak to be allowed to go to the jury. Judicial intervention is, however, capable of working injustice as well as justice'; see R v Whybrow and Saunders, The Times, February 14, 1994.

84. [1985] AC 560.

85. Section 22(1): "A person handles stolen goods if (otherwise than in the course of the stealing) knowing or believing them to be stolen he dishonestly receives the good, or dishonestly undertakes or assists in their retention, removal, disposal or realisation by or for the benefit of another person, or if he arranges to do so". By subsection (2), this offence carries a penalty not exceeding fourteen years.

86. Grainger [1974] 1 All ER 928.

87. Atwal v Massey [1971] 3 All ER 881.

88. Toor (1986) 85 Cr App Rep 116;Reader (1978) 66 Cr App Rep 33.

89. See further Williams, Textbook of Criminal Law, 2nd edn (Stevens, London, 1983), p 875 and "Handling, Theft and the Purchaser Who Takes a Chance", [1985] Crim L R 432; cf Spencer, "Handling, Theft and the Mala Fides Purchaser", [1985] Crim L R 92 and 440.

90. [1987] AC 1.

91. Practice Statement (Judicial Precedent) [1966] 1 WLR 1234.

92. At issue was whether the Criminal Attempts Act, 1981 had overtaken the decision of the House of Lords in R v (Roger) Smith [1975] AC 476 which had attracted robust and sustained criticism. In Shivpuri [1987] AC 1, at 7, Lord Hailsham observed "that the new Act had formed a tilting yard for a joust of almost unexampled ferocity between two of the most distinguished professors of English criminal law in the United Kingdom"; see Williams, "The Lords and Impossible Attempts", 135 New Law Journal 337 and [1986] CLJ 33; and Hogan, 135 New Law Journal 337 and [1984] Crim L R 584; and on impossible attempts, see R A Duff, "Attempts and the Problem of Missing Circumstance" 42 NILQR 87 (1990).

93. This is one of the concerns that prosecutors have raised with the author in formal and informal seesions on prosecutorial ethics. Statistical research and analysis is required to establish the extent to which the overruling of Anderton v Ryan in R v Shivpuri has impacted upon the number and nature of prosecutions for handling stolen goods. There is some reason, however, to suppose that the impact of the decision has been more academic than practical. If so, this is another illustration of how subjectivist thoery distorts substantive criminal law and practice; see Richard H S Tur, "Subjectivism and Objectivism: Towards Synthesis" in Shute, Gardner and Horder (eds.), Action and Value in Criminal Law (Claredon Press, Oxford, 1993, p 213-237.

94. [to be added].

95. See Toni Morrison, Racing Justice, Engendering Power (Chatto & Windus, London, 1993);see, too Margaret Randall, "Doublespeak and Doublehear, Anita Hill in Our Lives" in Sumrall and Taylor (eds), Sexual Harassment, Women Speak Out (The Crossing Press, Freeedom.CA, 1992), pp 18-22.

96. Nellie Y McKay, "Remembering Anita Hill and Clarence Thomas: What Really Happened When One Black Woman Spoke Out", in Morrison, op cit, pp 269-289, p 270.

97. See Wahneema Lubiano, "Black Ladies, Welfare Queens and State Minstrals: Ideological War by Narrative Means" in Morrison, op cit, pp 323-361,at pp 352-353 for this and other formulations of the crucial question.

98. Wahneema Lubiano in Morrison, op cit, p 323, "I believe Anita Hil's account"; Margaret Randall in Sumrall and Taylor, op cit, p 21, "... it is absolutely clear that that those looking and listening ... heard two different stories. We women and some men who experience and therefore understand the reaqliy of sexual oppression, heard one story. Most men and those women who have sufficiently internalised the patriarchal value system, heard another. This is the gender gap of power. Those who lack the experience and thus the knowledge, those who protect themselves when they claim that sexual harassment is infrequent or that it must be proved, were suspicious of Hill's words: Could they be true ? No, of course not. Why, a man who would do such things would surely be in a mental institution wouldn't he ? She must be doing this for personal reasons ... But to women who have shared this experience many times over, to women who have endured it in silence, sure that we would never be taken seriously if we spoke, Anita Hill's words were heard quite differently. We were listening to something we know to be true" [all italics in the original]; see, too, Harriet Goldhor Lerner, The Dance of Deception: Pretending and Truth-Telling in Women's Lives (Pandora, London, 1993, p.18, "I watched the televised congressional hearings in 1991 that turned into a painful and outrageous attack on Anita Hill as she tried to tell the truth about Supreme Court nominee Clarance Thomas".

99. See A Leon Higginbotham, "An Open Letter to Justice Clarence Thomas from a Federal Judicial Colleague" and Carol M Swain, "Double Standard, Double Bind: African-American Leadership After the Thomas Debacle", both in Morrison, op cit, pp 4-39 and pp 215-231, respectively.

100. Toni Morrison, "Introduction: Friday on the Potomac", in Morrison, op cit, pp vii-xxx, p xvii.

101. New York Times, October 27, 1991.

102. See the cases of Ian Kydd, The Times, October 23, 1993 and Austen Donnellan, The Guardian, October 20, 1993, The Times, October 20, 1993 and The Sunday Times, October 24, 1993 and see, too, The Sunday Times, December 15, 1991 on "Date Rape" including the Kennedy-Smith verdict, the then upcoming Tyson trial, and Helena Kennedy's comments. On the role and responsibility of the college, see The Times, February 11, 1994 and The Times Higher Educational Supplement, February 11, 1994.

103. Grace, Lloyd, and Smith, "Rape: from recording to conviction", Home Office Research and Planning Unit Paper 71 (1993).

104. The Guardian, April 19, 1993.

105. Though English criminal law theoretically permits conviction on uncoroborrated testimony, corroboration remains pragmatically important; see, for example, Miles v Cain, The Times December 15, 1989 and Kennedy, op cit pp 116-117.

106. The Independent on Sunday, July 25, 1993.

107. Ruth Hall, Women Against Rape, Letter in The Times, November, 1993. Despite these forebodings, the Home Secretary has now rejected calls for men accused of sex crimes to be given anonymity unless and until convicted by a court, The Sundaay Times, February 20, 1994.

108. The Times, October 23, 1993.

109. New Law Journal, February 11, 1994, p 186.

110. The leading authorities on withdrawing the case from the jury and stopping the trial are R v Turnbull [1977] QB 224 and R v Galbraith [1981] 1 WLR 1039, discussed in R v Baker (note) 65 Cr App Rep 287 and Daley v R [1993] 3 WLR 666 and see, too, R v McKenzie, New Law Journal, August 14, 1992.

111. Recommendation 86.

112. A man falsely accused of rape by a work colleague was arrested, stripped. made to provide samples and detained at a police station. He said that the accusation "made him feel dirty". A police officer commented that the accused was the real victim and added that "men have got to be protected too"; The Times, November 24, 1993.

113. See note 40.

114. John Evans Chief Constable Devon and Cornwall, "Miscarriages of Justice - A Police Perspective", 66 Police Journal 4-11, p 5 (1993).

115. See Charles Maechling Jr, "Borrowing From Europe's Civil Law Tradition" 77 ABA Journal 59-63 (1991); Mansfield, op cit.

116. The Sunday Times, February 20, 1994.

117. See Probert and Brown, "Theories and Practices in the Legal Profession" 19 University of Florida Law Review 447-485 (1966-67) and Kelso, "Steps Towards a Lawyer-Oriented Jurisprudence", loc cit, 552-559.