TOUGHER JUSTICE

Crime Is On The Rise, And More Offenders Are Avoiding Conviction. David
Rose Reports On Dramatic Plans To Give More Power To The Law

Leeds Crown Court, 8 May 2002: for the third time in a decade, one of the
biggest drugs barons Britain has produced beats criminal charges of the
gravest severity, because a judge rules that almost none of the Crown's
case against him can be put before a jury.

Brian Charrington, aged 45, a former Middlesbrough car dealer, has
allegedly been taped speaking by telephone to Det Sgt Ian Weedon, a
Cleveland police officer. According to the prosecution, the tapes show they
had a corrupt relationship, or as the charge sheet puts it, that they
entered a 'conspiracy to cause misconduct in a public office'.

Ten years earlier, a jury at Newcastle was deprived of the chance of
weighing evidence that Charrington was one of the main organisers of a
500kg import of cocaine. On that occasion, the prosecution withdrew the
charges, because two detectives from a squad dedicated to fighting
organised crime announced they would be appearing as witnesses in
Charrington's defence - one of them Ian Weedon. In 1999, a judge at Bristol
threw out charges arising from the discovery of four tonnes of cannabis on
Charrington's yacht. In the judge's view, the Customs and Excise men who
boarded the boat under heavy gunfire did so illegally.

Now, at Leeds, Judge Kerry MacGill says he is throwing out the taped
conversations because of changes to the law - made years after the
recordings. Five security-vetted detectives up to the rank of
superintendent have been working on the case - codenamed Operation Teak -
since 1996, joined for long periods by up to seven colleagues. Arresting
Charrington has required many months of intelligence-gathering and costly
surveillance.

Like all the other British police and Customs teams who have tracked
Charrington as a 'target criminal' for years, they have been wasting their
time. He has been convicted of drugs trafficking in France, and will have
to serve a sentence there; he faces further charges in Germany. But in the
words of one source close to the investigation, 'our criminal justice
system just doesn't seem very well-equipped to deal with experienced,
ruthless criminals of this kind'.

This week, as the Government prepares to launch a White Paper outlining
proposals for far-reaching reforms, an Observer analysis suggests the
Charrington affair may reflect wider problems. Over a 20-year period,
offenders responsible for the crimes that most concern the public -
including rape, robbery, burglary, car theft and violent assaults - have
become more likely to escape justice. Recorded levels of these offences
have risen steeply. Convictions have not kept pace - and for some crimes,
they have plummeted.

Speaking at a conference in London last week, Tony Blair promised that the
White Paper - which is to be followed by a major Bill in the autumn - would
'rebalance' the criminal justice system towards the needs of victims and
witnesses. Many politicians have made such pledges. Nevertheless, the
numerical trends of the past two decades appear to suggest such a shift may
be overdue.

Take serious violence - attacks that would merit a charge of wounding with
intent to cause grievous bodily harm or attempted murder. In 1980, the
police recorded 4,545 crimes of this kind in England and Wales. By 2000 -
the last full year for which figures are available - the total had more
than trebled, to 15,737.

The more serious an assault, the more likely it is to be reported to
police. The number of convictions did rise: but far more slowly than the
level of attacks. In 1980, 1,311 people were convicted of attempted murder
or wounding with intent. Twenty years later, the total convicted had
increased by just over 500, to 1,825.

In other words, the perpetrator of such an attack had almost a 30 per cent
chance of going to prison in 1980. By 2000, the odds had fallen to around
13 per cent.

Better police practice in handling rape victims has encouraged a higher
proportion to come forward - although the biggest changes came near the
start of the period, in the wake of a 1980 BBC documentary showing a victim
being disbelieved and harshly interrogated by detectives. Yet the increase
in recorded rape is staggering: from 1,255 female victims in 1980 to 7,929
in 2000 (by which time, there were also 654 male rape victims). In 1980,
457 men were convicted of raping women. In 2000, the figure was 597 - an
almost 700 per cent increase in recorded offences, but of less than 30 per
cent in convictions.

As for Blair's current bete noire, robbery, offences recorded surged from
15,006 in 1980 to 95,154 in 2000. In 1980, the total convicted by the
courts or formally cautioned - a process that requires the offender to
admit guilt - was 3,580. Had it kept pace with the growth of recorded
crime, by 2000 it would have reached about 22,000. In fact, it was 6,512.

These more serious crimes usually require more police time - if not in
solving them, then in preparing cases for court. The lengthy sentence they
are likely to attract makes a not guilty plea more likely, at least in the
early stages. The figures suggest that as the system has struggled with the
rising tide of serious offences, it is failing to deal with 'volume crime'
- - property offences that cause loss, distress and inconvenience, such as
burglary and vehicle theft.

Here, offences have risen, but convictions have plummeted. In 1980, there
were 618,390 recorded burglaries; in 2000, there were 836,028 - a total
below the mid-1990s peak. In 1980, 79,402 people were convicted or
cautioned for burglary; in 2000, 32,823. In 1980, 324,354 vehicles were
stolen, while police recorded 294,948 thefts of items from inside cars. The
2000 figures were 338,616 vehicles stolen and 629,651 item thefts. In 1980,
there were 55,286 cautions or convictions for these crimes. In 2000, the
chances of being caught had fallen by almost 90 per cent: the number of
those convicted or cautioned was 3,799.

Behind these statistics lie other trends: an uncontrollable rise in
virtually all recorded offences through the Eighties, followed by steady
falls in the Nineties. But all the signs are that this decline has ended,
and that the bottom of the statistical trough lies well above 1980 levels.
Although a new recording method in use in some parts of the country will
exaggerate the extent of the 2001-02 rise, demographic factors alone - a
bulge in the group committing most crime, young men - mean the rise in the
figures is set to continue.

Perhaps the most remarkable aspect of the reforms in prospect is the degree
of consensus behind them. It starts at the top. Previous Home Secretaries -
including Jack Straw - have wanted to tackle the perceived failing of
criminal justice. They have fallen at the first Whitehall hurdle: defeated
by the fiercely guarded independence of the Lord Chancellor's Department,
responsible for the judiciary and courts, and the Attorney-General's
department, to which the Crown Prosecution Service is ultimately answerable.

This time, New Labour's aspiration to create 'joined-up government' appears
to have real meaning. The clearest sign is the appointment to the Home
Office criminal justice brief of Lord Falconer, a Blair confidant and
friend of Lord Chancellor Derry Irvine.

The White Paper will reflect this emerging unity at the centre: in each
'criminal justice area', the chief constable, chief court administrator,
prisons area manager, chief crown prosecutor and chief probation officer
would sit on a new 'chief executives committee,' tasked with ensuring
different parts of the system work together.

'For 10 years, we've all been held to account, but in contradictory ways to
different people,' says Peter Neyroud, Thames Valley Chief Constable and a
leading police advocate of reform. 'It's like prodding jelly. You push in
at one place, it bursts out somewhere else. At the moment, the criminal
justice system isn't a system in any real sense of the word.'

For example, the 'performance indicators' set for the courts mean
administrators are supposed to make the most economical use of court time.
As a result, like airlines, they deliberately overbook. Witnesses and
victims may be kept hanging around for hours or days; lawyers forced to
seek adjournments. Meanwhile, the Crown Prosecution Service is measured on
its throughput of cases - and to the frustration of the police, may
discontinue a prosecution rather than leave a case 'live' if a key witness
disappears, or a defendant absconds.

The initial impetus for the White Paper's more controversial proposals,
those governing the rules of evidence and the criminal process, came
initially from the police. They have campaigned intermittently for changes
at least since the 1984 Police and Criminal Evidence Act, which had the
biggest single impact on the conviction rate by making it effectively
impossible to interrogate a suspect other than on tape and with a solicitor
present. Confessions - the securing of which had been the main goal of most
criminal inquiries - became relatively rare.

However, senior officers who have spent the past months sounding out
members of the judiciary have found that here too, there are important
areas of agreement.

The most significant probable change is the sweeping away of admissible
evidence case law, and its replacement with a simple, statutory principle.
Gone will be the attempts to draw distinctions between evidence that is
'probative' and evidence that is 'prejudicial'. Instead, there will be a
presumption that all evidence - including, in some cases, previous
convictions - is admissible unless the defence can show it would be unfair.

Videotapes of interviews with crime victims and witnesses made during
interviews with police will be admissible as evidence - even if a witness
fails to come to court. As one senior judge pointed out last week,
cross-examination based on alleged discrepancies between a police statement
and a victim's evidence is likely to become less common. At the same time,
defendants may also gain.

Unreliable prosecution witnesses - like the girl known as 'Bromley' who
changed her story and received inducements in the Damilola Taylor murder
trial - will be more readily exposed. Another way in which the system is
likely to be 'rebalanced' is granting both defence and prosecution the
right to appeal when a judge rules on what evidence is admissible, or that
there is no case to answer.

In the Charrington case, the Attorney General plans to appeal against
MacGill's decision to exclude the phone taps. Victory would be academic:
Charrington has been acquitted, and the case cannot be reopened. The White
Paper will suggest a trial would be 'on hold' until the Court of Appeal had
ruled.

'We are going to have to start developing an emergency, fire brigade-style
service in these cases,' one judge said last week. 'But it will prevent
some guilty defendants walking free on what turn out to be questionable
grounds.'

Some proposed changes will arouse fierce opposition. One is relaxing the
rules for detaining suspects. At present, the police have 24 hours after
arrest (36 if they obtain an extension) before they must either charge or
release their suspect.

Home Secretary David Blunkett has ordered a review, and the likely outcome
is a measure to 'stop the clock' once a solicitor, or when necessary, a
doctor, has been telephoned. Police say they often lose many hours while
they wait for such professionals to arrive.

Another is making the requirement for defendants to disclose the substance
of their case before trial much more stringent.

The question no one seems to have addressed is what effect all this might
have on the criminal justice system's greatest paradox - the fact that,
despite the slump in conviction rates, the prison population has soared. A
declining proportion of offenders has been convicted, but their treatment
has become much harsher.

The Government plans to include measures for 'tougher' community penalties
and 'mixed' prison/community sentences in its Bill in the autumn. But
judges have been urged to send fewer people to jail before, and have so far
failed to respond.

If conviction rates returned to 1980 levels, could the jails cope?