Charles Clarke kept this one quiet...

From THIS story on the BBC, the Home Secretary said...

"[T]here was a lot to be said" about the UK switching from its adversarial court system to a system where an investigating judge direction inquiries - as happens elsewhere in Europe. The government was considering the idea, he said, but it would be a very major reform and was opposed by most lawyers, including some of his fellow ministers.
Now, I know that converting us to a fully-blown "Euro-Compliant" country is a core part of HMG's agenda, but this really takes the biscuit. We've seen how grandstanding investigating magistrates in, say, Spain make silly 6th form gestures like issuing warrants for the arrest of US tank crews.

For those of you who think this subject is a bit dry (which it is), it involves stripping the judiciary of their independence and making them a core part of the investigative process. In other words, the liberal cabal of senior, human rights obsessed judges we have would be making key operational decisions in criminal investigations ("no, you can't follow him, you might breach his human rights")!

Of course, this major shocker is dropped in at the end of a long interview about something else entirely, with no shock horror headlines because a parrot died last week. You couldn't make it up.

This is a dry thread but some may find it of interest given the current trend of trying our boys for their actions, often under fire, which results in personal injury or loss of life.

The idea of changing the British legal system has actually been kicking around for years.

Under the last conservative government the 'Criminal Cases Review Commission' was set up in an attempt to investigate alleged miscarriages of justice properly. It is an independent body responsible for investigating alleged miscarriages in England, Wales and Northern Ireland and, as at 2001, had a backlog of 1,200 cases - about a third of all applications.

You may be shocked to learn that as at 2001, 73% of cases which had been referred back to the Court of Appeal by the CCRC resulted in quashed convictions!

Sensationalism and interference, (aka 'freedom') of the press has assured us that no-one gets a 'fair' trial these days as people are, consciously or otherwise, swayed by what they read.

Police 'integrity' is, shall we say, 'questionable' when you know that they too have 'targets to meet'.

The Crown Prosecution Service, the agency of lawyers who present cases for the Crown in Magistrates and Crown Court, have been proved to sometimes be guilty of supressing evidence they should otherwise have disclosed to defence solicitors.

Whilst the European system is itself not without flaws, it has to be said that it does appear to have some advantages.

If it was you, dear reader, in the dock, I'm sure you'd want to know that your constitutional right under Article 6 of the Human Rights Act 1998, which says,

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

was being regarded to the letter.

"It is better to let ten guilty men go free than to wrongly incarcerate one innocent man" - Sir William Blackstone, 18th century judge
Not being a copper, ambulance-chaser or chav, I can't say I've been an ardent observer of the British criminal justice system. However, I believe that the general idea is that somewhere between the "they're all guilty b@stards" approach that many of our our brave boys in blue take, and the "the liberal cabal of senior, human rights obsessed judges we have", we find balance.

Veg. I'm not sure I'd agree with you, prima facie, on the point that the judiciary is politicized to the extent you imply. Plenty of the incontinent, cross-dressing, senile old fcukers must surely have been appointed by Maggie and Major. As with the QCs (and I'm thinking of the likes of Mansfield and Cherie the Crazy Frog in keeping with your argument) their reputation as legal scholars and their bodies of previous work must also have been considered at a some length.

That having been said, I do agree with you that this might well be a mistake. As I said at the beginning, our system has balance and, in general, seems to work pretty well- so why fcuk around with it?
Crab, judges are appointed by the Lord Chancellor "in person" (although I'm sure there's a committee involved) not acting on behalf of the government and usually selected form the QCs which are (or were) in turn picked by a fairly arcane system of secret soundings.
Common law? Time immemorial (i.e. pre-1189)? Magna Carta? Bill of Rights? 700 years of sophisticated parliamentary democracy and a criminal justice system sans pareil? Ah bollocks, let's just do a bit of job-creation for our erstwhile barrister (NOT nasty common solicitors) chums and sweep away the jury, impartial and non-interested judiciary by dint of a massive parliamentary majority and a swift Criminal Justice Act from the roll of CJAs currently on the wall of the whips office!!

Code Blair or Code Napoleon, well non merci!!
Spot-on, Cuddles. The inquisitorial system used on the Continent was part of the Napoleonic code. Which is why it's so similar all across Bonaparte-conquered Europe, and why the Americans caught it off the French (District Attorney = Investigating Magistrate).

Answer me this: do you want the sort of judge who gives paedophiles three-year prison sentences make operational decisions over investigations? I don't. The legal system is already going to hell in a handcart because it's run by lawyers for lawyers, let's not make it worse. Shall we examine, say, the Belgian paedo scandal, or the incessant French and Italian senior politician corruption scandals or the murky German counter-terrorist happenings of the 70's?

We've had our fair share of scandals too, no denying that. However, it seems to me infinitely fairer to have a clear, unambiguous separation of powers and responsibilities in the legal system that are clearly adversarial (i.e. we all know who's trying to achieve what). If anybody can put their hand on their heart and say New Labour wouldn't use this to put all their own people in charge of criminal investigation as "investigating magistrates" then I'll eat my proverbial hat.

The police are independent (at the moment, note that the new top tier of criminal investigation will be a Home Office-answerable entity of Crown Servants as of next year), but for how long and what happens when the judges are politically-appointed and telling them what to do?

This has come up before, not to long ago either. Concerning the difficulties involved in prosecuting high tech and computer crime cases. Where evidence is of a complex and highly technical nature and which is believed to be above the understanding of a jury.

The little I read at the time completely ignored the fact that most judges in these cases would not be able to understand the finer points of the stack/buffer overflow for example.
I have long been of the opinion that the vast majority of judges and sheriffs are senile old farts. The ones who are'nt senile are either bleeding-heart liberals or child-molestors.
If it was up to me, trial by jury would be replaced by trial by chemical interrogation - faster, cheaper and more efficient.
Having said all that, it's just possible that the Euro version would be even worse than our system. After all, it was the bloody Europeans who came up with the fcuking HRI in the first place.
One final point; why do members of the public have to stand when a judge enters or leaves court: we pay his fcuking wages - the cnut should stand up when I enter the room!
Rant ends.
Hmmm. We all know that this government believes that legislation is the panacea for all ills, and that anyone who dissagrees with them is either a raving homophobe/racist/little englander/all of the above.

"You may be shocked to learn that as at 2001, 73% of cases which had been referred back to the Court of Appeal by the CCRC resulted in quashed convictions!"

What an utterly shite statistic. It is only of value if compared against the total number of cases originally tried. Your vaunted percentage could refer to under 0.000005% of all cases tried in the criminal court system. It could refer to over 80% of the cases tried. Utter, utter tosh, as is most of your post. Your stupid assertion that the police force are corrupt and would knowingly refer an innocent man as a case to the CPS is tosh (well, mostly. Speak to Vegetius to get his impression of a percentage corrupt rozzers). While we do not like being shafted by the police speed cameras etc, and reject their sometimes foolish/wrong application of the law (e.g. holding a pensioner under anti-terrorist legislation), I have utmost confidence in them not going out of their way to implicate an innocent person.

Also, should you ever do Jury Duty, you would soon realise that the influence of rags such as The Scum have no influence in the jury room. Absolutely none. Also, most jurors are capable of rational thought.
I think Fatboy Clarke (not the ex Tory leader candidate) has enough trouble on his plate (ID cards, religious hate bill, 90 day detention etc) without looking for something else to make a dog's breakfast of.
OK - very slowly I'll put my head over the parapet. I've worked with police in a number of European countries and some ME such as Libya when they deal with squaddies who are suspected of serious offences. Sometimes the part of the magistrate is filled by the Parquet, the Procurer or judg de instruction (spelling rusty). He directs the course of the investigation. I have never encountered any situation where he spells out every dot and comma to the investigating coppers. He will supervise some things - a confrontation e.g. where two witnesses who disagree on a material point will be interviewed face to face. My opinion formed from these experiences was that it was neither better or worse than ours - just different. One thing was reduction in time where things were discussed by some CPS-like body. If the supervising magistrate had said 'do this' or supervised it, that seemed to make it proper and evidence legally admissable. I do not recall ALS ever focussing on any injustice where Brits were charged (not that that was a great commendation) Right - bit more exposure from behind parapet. Elsewhere here I have suggested such a system in terrorist cases in connection with strong interrogation (aka torture) and requests to hold for up to 90 days. The judge would consider police applications, OK them as appropriate and then monitor the case for detention. A sort of judge with additional training - like the nice men who always sign warrants at night sort of bloke. What could, I think, be some sort of model for consideration is the way Italy has magistrates directing anti-Mafia cases. They have had some successes - and a lot of deaths - but the enquiries are very slowly winning in the face of immense political corruption. I imagine the UK police officer still needs someone at higher level to fight for his case as it goes through the review stage re prosecution yes/no.
So - Code Nap for all in UK? No.
Some of investigating magistrate for terrorist cases - check it out; look for baby in bath water syndrome.
A lot of the legal systems in Europe actually envy our adversarial system, I for one cannot understand why? Well I can to a certian extent it has the advantage of both sides fighting it out therefore not much evidence is missed. Our system has some major flaw, the US have a similar system, lets not forget this is the system where OJ Simpson got away with murder.

A major problem with our system is that the people with the best lawyers win the case, lawyers that can twist evidence and manipulate everything a witness for the opposition says. This is becoming even more of a problem with access to Legal Aid becoming harder to get.

The European inquisitorial model has a lot of good going for it, an independant judge actually asking the questions and making sure all the evidence is seen in court and not manipulated by fancy ex public school lawyers. This has its flaws aswell though, you could end up with some crackpot old coot who should have retired years ago or a biased judge (heaven forbid, 1000 lashes for even thinking it).

The best solution would be a mix of the systems, keep the system we have now but also give the judge the power to question the witness aswell to make sure the evidence isn't disguised by said fancy lawyers manipulation of every word. Won't happen for a long time in England though, if ever. Too much tradition and crap used as an arguement against it. Oh and the fact that the Government don't want to piss the judges off too much because they will find a lot of judicial reviews going against them and a lot of legislation being declared incompatible with the HRA. Plus it wouldn't get through the second house (lords) of our oh so 'democratic' system.
Guys, there are people out there clamouring for judges to authorise operational assets like surveilling suspects. Trust me, this is what the legal profession and defence industry are agitating for. In America, a District Attorney's jurisdiction extends to decisions such as bailing suspects and preferring/ withholding charges during the investigative stage.

Judges should be impartial and removed from the investigative process. We've already involved prosecutors, a la US DAs, more closely by letting the CPS make most charging decisions. Very sclerotic it's been, too.

I'm just a bit too young to remember police court officers prosecuting summary offences in the magistrate's courts, apparently it worked a treat, was cheap fast and effective. Reform PACE, the CPS and repeal vast swathes of the HRA. Not holding my breath.

I left before Senior Investigating Officer came into use by that name. Taking Vegetius' point about 'judges impartial and removed from the investigative process', what are pro/con of having judge-type person alongside the SIO? I see the benefit as making a prosecution case stronger as it was done under close supervision of a judge. To muddy the waters a bit, consider a judge in a long firm fraud where trials go on for 1/2 years and end up as a real old cluster fcuk anyway. Surely he would improve matters?
The home secretary also said "there was a lot to be said" about the UK switching from its adversarial court system to a system where an investigating judge direction (sic) inquiries - as happens elsewhere in Europe.

The government was considering the idea, he said, but it would be a very major reform and was opposed by most lawyers, including some of his fellow ministers.

Is Mr. Clarke here proposing, in all seriousness, to deprive defense counsel of the right to cross-examine state witnesses? What is meant by "an investigating judge direction (sic) inquiries?" Is this supposed to refer exclusively to some proceeding in the nature of a preliminary examination to test whether the state can show a prima facie case? Or does it mean that only the judge can examine witnesses at the trial?

There's a lot to be said for the latter idea if you're interested in making it impossible for anyone who incurs the disapproval of the government to make a defense. Coupled with elimination of trial by jury, it's just a wonderful way for completing the evolution of the country into a thoroughgoing police state.
I left before Senior Investigating Officer came into use by that name. Taking Vegetius' point about 'judges impartial and removed from the investigative process', what are pro/con of having judge-type person alongside the SIO?
A defence barrister would argue that it would make any operational decisions that impact on Articles 4 & 6 of the HRA (Right to a Fair Trial and Right to a Private Life) fully compliant with the Human Rights Act. Of course, a non-operational investigating magistrate thinks very differently from a Senior Investigating Officer from the police or customs or whatever.

As I said, the already sclerotic process of investigating crime would be bogged down by seeking legal sanction for operations. You'd have to have a "Duty Magistrate" 24/7, I wonder how many judges are up for going on the roster to stag on and authorise stuff?

I agree that in (A) Terrorism cases with extensions of custody, and in impossibly complex fraud trials that input from a magistrate during certain processes would be beneficial. However, it is my view that it would not in cases where DI Snooks wants his team to follow a drug dealer at 4am.

Are we gradually coming to the conclusion that terrorism has its own demands on a investigator if he is to follow fully all possible leads? Phone taps, translations, computer forensics, overseas liaison etc. etc. Instead of adapting existing procedures, start off with a fresh sheet and GET IT RIGHT FIRST TIME. Refreshing to see that police are very determined to do the job in face of obstacles - this a.m. news report that methods of dealing with Brazilians will be more widely employed in terrorist contexts. The way terrorists now operate was never contemplated in 1215 and our law needs a review - not to lead to some sort of Fascist state but to recognise that terrorists are very determined, quite clever and innovative and risk surveys do not permit 'avoid' or 'insure against' remedies.
DI Snookums and his drug squad soldier on as now. Supt Ali Baba and the A Terrorist teams would have what they need to get the job done. 7/7 suggested that threat assessment ability was not too clever but the immediate investigation showed our police can hack it although I still wonder what might have happened if a Brinksmat or Heathrow big job had taken place on 9/7?

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