Adversarial Justice

My recent post about dismissing a drink-drive case because of a fatal flaw in the prosecution case has drawn a fair bit of comment, some of it critical. How, some people ask, can we 'let off' a drink-driver just because the CPS has left a piece of paper out of the file? The answer is that we operate in an adversarial system in which the defendant does not have to prove anything, and it is for the prosecution to prove their case beyond reasonable doubt. It is not the job of a magistrate or a judge to help the prosecution to get over the weakness of their case, even when as in this instance it was a minor clerical error. As I have said before, a criminal prosecution pits the mighty resources of the state against an individual, and it is right that the test of proof should be a high one.

It may sound a little pompous in the context of a simple drink-drive case, but an independent judiciary is the citizen's last defence against oppression and tyranny. Sometimes that means that society has to accept that a criminal will go unpunished because it is not acceptable for police and prosecutors to use oppressive means to obtain evidence.

There was a significant case this month in the Court of Appeal in the case of Eddie Grant. He was convicted of hiring a killer to shoot his wife's lover and was given 18 years. The conviction was quashed because the police had bugged the place where Grant went to talk to his solicitor.

The Judge said this was one of three cases in which the police had placed covert listening devices there and at Grantham police station. “We are quite clear that the deliberate interference with a detained suspect’s right to the confidence of privileged communications with his solicitor seriously undermines the rule of law,” he said. Conversations between Mr Grant and his solicitors were recorded, though no material of evidential value was picked up, the court was told.

So although the improperly obtained evidence was of no use against the defendant and he was convicted without its help, the case was thrown out because the investigation was unlawfully conducted. That's the only way that the police will ever understand that they have to play by the rules however inconvenient they might be.

It may be frustrating but any anger should be directed at those who fail to do their job properly, not the courts who insist that they must.