Juries 'should hear phone taps' to nail crime gangs

[David Swarbrick]

> On Wed, 11 Sep 2002 19:12:31 +0100, David Hansen wrote:
> 
> >It is a familiar conceit for the government side of a balls up to 
> >say, "We know they are guilty really. They only got off because of 
> >the stupid jury/Fiscal's incompetence/bent lawyers/stupid judge/(add 

> >other excuses here). We have evidence that we can't tell you about 
> >which shows they are really guilty."
> 
> Indeed, and of course there have been a number of changes to the law
> intended to reduce people's ability to defend themselves against this

> type of argument, such as right to silence, trial by jury, double
> jeopardy etc.
> 
> It's simple, in English Law if found not guilty then that's it, and 
no
> amount of 'but we know that they were guilty' changes that. Under
> Scottish Law there is that rather handy verdict of Not Proven.
> 


It always will be a difficult balance to strike. In the pub, you or I 
can accept any standard of proof we choose, since nothing particularly 
swings from our opinions. You only have to listen to the average radio 
phone in for twenty minutesto hear enough lunatics who will judge 
someone without reserve for no reason at all. They 'know' someone is 
guilty. In court it is very different, and it is a proper duty of the 
court system to require what look like arbitrary standards to ensure 
that only the guilty are punished.  

This is the central issue.

There is another aspect which may be more dangerous. In the past these 
were alwaysissues about admissibility. Either evidence was put n or 
excluded. Nowadays, almost any evidence is put before a court or a jury,
and the judge then protects the defendant by describing to the jury how 
dangerous it might be to rely upon the evidence. There is a risk that 
this is simply a cop-out. the court knows that evidence which is 
unreliable will be relied upon, because a jury will be unable to 
deconstruct the complicated balancing exercise set out by the judge, 
and will just take on the evidence to re-inforce whatever view it wants 
to take.

Unfortunately existing protections do not work, as can easily be seen 
by the constant dribble of miscarriages of justice.

In a lot of high profile cases, there is a feeling that 'someone must 
swing' and sadly whoever is in court has pulled the short straw.

These rules about what should be admitted are not written by God in 
stone. Times change, and society changes.

The basic difficulty about evidence obtained covertly is that if the 
system is to be fair to the defendant, he must be able to challenge the 
content and reliability of the evidence as evidence. There will be many 
situations where a prosecutor woud not ant to disclose enough 
information to allow that fairness. If he cannot, or will not, then I 
do not think he should be allowed to use it. If he can then I do not 
think there should be a huge problem.

I do not believe that judge's should wash their hands of it by 
carefully pretending to a jury that they might ignore evdence.



-- 
David Swarbrıck  david@swarb.freeuk.com
david.swarbrick@lawindexpro.co.uk