Jim Nichol

The strong arm of the law

From Socialist Review, No. 169, November 1993.
Copyright © Socialist Review.
Copied with thanks from the Socialist Review Archive.
Marked up by Einde O’Callaghan for ETOL.

Is crime rising, and is stiffer punishment the answer? Pat Stack talks to socialist lawyer Jim Nichol about what really happens in the courts and prisons

What do you think are the most important changes in his crackdown on crime that Michael Howard announced at the Tory conference?

Three or four are really significant. The reversal of the position on bail is staggering. At the moment there’s a presumption in favour of bail. Everybody who appears before a court has an automatic right to bail unless there is a particular exception. On that basis we lawyers get a tremendous number of people bailed, sometimes with conditions, sometimes without.

That presumption is going to change. There’s going to be no automatic right to bail, unless you can persuade the magistrates to give it to you. And the magistrates are prejudiced against the vast majority of defendants. I expect to see a substantial rise in the number of unconvicted prisoners.

Then you begin to get a backlog – and police cells are already being used as prisons again – then the length of time people have to wait before their trial increases.

It’s going to put tremendous pressure on unconvicted prisoners to plead guilty when they are innocent, simply because their sentence is going to be less than the amount of time they’re going to spend in prison whilst they’re waiting for their trial to come up.

Once the prisons get overcrowded people will have to wait many months for their cases to get heard – just like in America. And it’s always going to be poor people, black people who are working class – as it is now – who fill up the prisons on remand. The conditions on remand now are really horrific.

What the Tories say is that we have a number of young juveniles, in particular, committing offences whilst on bail.

But all the research shows that if you lock up young juveniles instead of dealing with them within the system by way of probation orders, supervision orders and other ways of non-imprisonment, then they commit more offences when they come out.

What is the significance of the abolition of the right to silence?

There is an entrenched right that a person should not be required to incriminate themselves which is fundamental. Without that you will see a sort of inquisition – a fearsome inquisition of vulnerable suspects. The suspect will know that at some point in time he or she has got to speak to the police.

And, of course, the police have never been very good at detection work. The idea that they are detectives is a complete misnomer! But even such minimal detection work will now disappear. They’ll simply interrogate and interrogate people until they cough up, with either true or false confessions.

The abolition of the right to silence really amounts to a ‘nark’s charter’, to try and drive suspects into being narks. The questioning will never stop.

There’s one proposal to bring in a new offence called ‘intimidating witnesses’. If that were the case then the prisons would be completely overfull with police officers, who’d be arrested and convicted and sent to prison for intimidating the defendant’s witnesses. It’s supposed to prevent the defendant intimidating the prosecution witnesses. But very very few defendants intimidate any prosecution witnesses. Frequently they don’t even know their names.

The defendants will prepare their own case entirely. They don’t get legal aid. The moment they try to organise their own defence, they could be accused of ‘intimidation’ by visiting witnesses quite legitimately. They’ll find themselves on an additional charge.

The Tories repeatedly state, ‘If you’re not guilty, if you’ve got nothing to hide, then you speak.’ But there are well documented cases, where, had the right to silence been used, innocent people wouldn’t have gone to jail.

That’s right. The more serious the case, the more the police are interested in any confession whatsoever, whether it be true or false. In all the famous cases – the Birmingham Six, the Guildford Four, Judith Ward – people had confessed. But had they simply exercised their right to silence, it would have protected them.

Until 1898, when the Criminal Evidence Act was brought in, the right to silence was so entrenched that a defendant was not allowed to give evidence in court on his own behalf. If you were charged with murder, you could not give evidence in your own defence. It was part and parcel of the concept which said the prosecution have got to prove you guilty.

In a lot of cases, if a suspect was simply advised to do absolutely nothing then there would be a decline in the number of false confessions. We assume false confessions to be the ‘Okay guv, I did it’ type. But it doesn’t work like that. For example, take the case of a riot, where the cops say, ‘Well, we know you weren’t really part of the riot, but you did see what was going on, didn’t you?’ So you think, ‘There’s nothing wrong with saying anything about that.’ But it’s likely that the cops have no evidence that you were there at all. What you’ve done by agreeing you were there is to put yourself there, and they will charge you.

How will the new measures work when they are brought in?

They look to Northern Ireland at the moment, where there’s no right to silence and no jury. So the judge frequently says, ‘I take into consideration the fact that you failed to answer questions.’

It will work at every level. A good example we had was two lads walking down the street. One of them had a screwdriver in his pocket, in his hand. They were seen by the police. The one with the screwdriver dropped it and ran like hell and was not arrested. The other guy was arrested for going equipped to burgle. He didn’t have the screwdriver. Even the police admit he didn’t have the screwdriver. At the police station we advised the lad to say absolutely nothing, which he did. They dropped the charge, and he was released. Under the system where they can take his silence into consideration, they will charge him. The jury will be told he refused to answer questions.

The right to silence is a short cut for the coppers to get any sort of conviction. But there’s also the spin-offs – of people shopping their mates, of innocent people confessing when frightened, of 80 percent of people not having a solicitor, and being conned into not getting one before they get to the police station.

Another proposal is to force the defendant to tell the prosecution in advance of the trial what their defence is. This is pretty catastrophic. It takes the whole onus away from the police. A lot of people who are charged with crimes come from the so called ‘criminal fraternity’. I’m talking about young kids on the street. And if you’ve been up in court two or three times, and you come up again for, say, grievous bodily harm – during a fight in the street – the police will be visiting your witnesses. You have to disclose your hand, based on the prosecution’s statement, taken by police officers who skew and slant the statement. Therefore, they have to present their case based on a skewed and slanted view of what happened.

Howard even said the success of the fight against crime will be measured by the number of people in prison. Is there any evidence to suggest harsher sentences reduce the crime rate?

None whatsoever. The cautioning amongst juveniles is very interesting. You get some young lad who’s been involved in stealing a car and joy riding. He’s then cautioned. The vast majority of these young people are never seen again by the police, never re-offend. Under the present proposals these people are going to go inside.

The young offender serves a very good apprenticeship by going into an institution and coming out a fully qualified criminal. As far as a deterrent is concerned I’ve always been very interested what Amnesty International has to say about capital punishment a couple of centuries ago, when people were hanged in public for being pickpockets. The number of people hanged who had actually been in the crowd on a prior occasion, watching people being hanged for being pickpockets, is astonishing. Some deterrent! It depends upon social conditions, the climate and so on.

Essentially what the Tories are doing is creating a panic, feeding into prejudice, making life much easier for the police. They are likely to cause far more miscarriages of justice.

The government has repealed sections of the old 1991 Criminal Justice Act, which made it harder to send people to prison. That legislation was a result of research carried out by the Tory government, which indicated there is no point in sending people to prison. The Tories have repealed it within a year of it coming into operation.

They are going to abolish the right to jury trials – in my view for the vast majority of offences.

There are three main categories of offences. Summary offences such as assaulting a police officer or obstructing the highway can only be tried in a magistrates’ court. Some offences can either be tried in a magistrates’ court or in a crown court. Providing the magistrate is prepared to hear it, it’s then up to the defendant where he is tried. They’re called ‘either way’ offences. Indictable offences such as rape, murder and armed robbery can only be heard at the crown court.

The bulk of offences come into this middle category. The defendant has the final say. It’s their right. Now if you want to plead innocent to any small theft, for example shoplifting, and you want to be tried by a crown court with a jury, if it costs too much – hard lines. They are going to make certain all those cases don’t go to a higher court.

And the magistrates are very much on the side of the police.

There will be a package which consists of the loss of bail, the loss of the right to silence, stating the case in advance and the abolition of the right to a jury trial for the vast number of offences. The rights of the people who are charged are utterly diminished.

To what degree do you think there is an increase in crime?

There is an increase in crime. You go onto a big estate in Hoxton, East London, and you’re dealing with young lads, who are 13, 14, 15 and 16. Their dads are in their mid-thirties. And their dads are in their fifties. And they’re all unemployed. If you go back 20 years you find out that the dads were dockers, or engineering workers, or all sorts of skilled and semi-skilled workers working in the East End of London. But now they live in run down estates, where the councils can’t spend any money doing them up because of cuts. Their sons probably worked until about ten years ago. And their sons now have no prospect whatsoever.

Take the example of a lad called David who lives in Hoxton. He has committed many offences, on one occasion 38 burglaries.

When I mitigate for David, when I have to stand up and say what the punishment should be and why he shouldn’t be dealt with severely, I tell the court that when David was born he had the privilege of being registered twice, once by the Registrar of Births, Deaths and Marriages, and once by the At-Risk Register! This was mainly because his father was violent towards him. His father spent three months in prison for assault on him and served a further three months in prison for assaulting David’s mother. You may also be interested to know that when he was born he was brought into a council flat which had been declared unfit for human habitation by the council authorities.

That was when he was born. He is now 17 years of age and you might like to know he lives in the same flat. This lad was brought up in these conditions. He’s been in and out of care like a yo-yo, whilst his mother was in and out of hospital. The only time I can find in his whole life in which David settled down and seemed to be happy was when he went to an ILEA boarding school in Surrey which he told me was really nice and he learned a little bit. And then one day somebody closed down the ILEA. So he went back to his violent father and to a house unfit for human habitation.

The next thing was his mother was found in the garages underneath there, dead, as was the next door neighbour, where they’d been having it off. He then suffered being taunted by every other child on the estate. He was then 13 years of age.

His father – this was a black family – then left them and went to the West Indies for six months. David was the eldest child. He left them in a house unfit for human habitation.

What do people expect? He’s got nothing. He’s never going to have anything. None of the family has anything. So they commit crime. He’s currently in prison. He’ll be out by Christmas. And he’ll commit more crime. He’ll have learnt a few new ones. David is not an untypical example.

The Tories repeatedly say that social conditions and crime are not connected. But you have described that relationship. Have you noticed, in the period you’ve been working in law, an increase in crime since the economic situation deteriorated?

Yes, I’ve noticed the third generation – the 13-, 14-, 15-, 16-year-olds. They are just taking a leaf out of their elder brothers’ or fathers’ books.

When I left school in 1960, in a mining village in the north east, my friends and I joined the Young Socialists, which was a thriving organisation. We used to write articles about the level of unemployment, which at the time was 260,000 nationally. I went to an ordinary school, but we had prospects. Most people got jobs in the sorts of things they wanted. A few bright kids became draughtsmen. A lot of kids became fitters, turners, electricians. A couple of kids became clerks. A lot of the kids went down the pits. And one or two of us became general labourers and the like. Generally, everybody worked. None of my friends were unemployed. And I don’t know any of my friends, by the time I left the mining village, who got into trouble – with the exception of one lad who was done for theft from a golf course. None of my friends ever appeared in court.

When Tories talk about crime, the picture they paint is of a huge rise in violent crime, and yet the steepest rise is in crimes against property, not crimes against people.

The Tories like saying that because it engenders a state of fear, which means people have to trust the government to try to do something about it. Whereas the chance of anything changing is really quite remote. The government does not deal with the real violence in society.

Vic Williams, who I defended against charges of desertion in the Gulf War, told me about his father. His father was a factory worker and he had to mix chemicals in order to produce plastics. One day – all he did was to read the formulas – someone gave him the wrong formula. The result is that he was immediately struck down and taken to hospital. He never worked again in his life. He lived in dire pain for seven years.

Most astonishing is that in the health and safety legislation which governs this there is no provision for any jail sentence for any employer.

There were 140 murders last year, compared with about 600 people who were killed at work. You never hear about them. You don’t hear, ‘Don’t go to work – the chances are you will be killed.’ But you hear old aged pensioners frightened at night. You stand more chance of being injured if you go to work than if you go out in the streets.

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