IT is not surprising that following upon the several quite appalling cases of miscarriage of justice involving the fabrication of evidence by the police, there should be a serious loss of public confidence in the police service. Appropriately, there has been a spate of articles in the press and statements by eminent public figures drawing attention to this unhappy state of affairs and calling for urgent steps to restore the integrity of our police forces.
Lord Taylor, the Lord Chief Justice no less, calls for the injection into the training of police 'the realisation that it is not only immoral but criminal to fabricate evidence'. Kenneth Clarke, the Home Secretary, at a summer conference of the Association of Chief Police Officers did not mince his words. 'Attempts at better management,' he said, 'or improving the quality of police service to the public, could not alone restore the damage caused by miscarriages of justice. The public had every right to expect those who upheld the law to honour the law, and probity was the most important asset a policeman could have. The chief constables, as police leaders, needed to ensure that justice was enforced with the highest level of integrity. The police had to accept the fact that it was a lesser evil for a guilty man to go free than for an innocent man to be convicted, especially for a serious crime.'
Sir Peter Imbert, then the Metropolitan Police Commissioner, who also addressed the conference, was no less direct. 'I would far sooner', he said, 'see a hundred guilty people walk free than see one officer compromise his position and that of the service by interfering with evidence.'
Sir John Woodcock, Chief Inspector of Constabulary, in a statement reported in The Times on 18th June, 1992, expressed the view that 'public faith in the police service has been severely shaken by causes celebres such as the Birmingham Six and Guildford Four cases'. He held that the police service would have to undergo fundamental reorganization and cultural change to maintain and strengthen public support.
The question immediately arises, therefore, what ethical principles must the police service adopt and what cultural change must it undergo if similar miscarriages of justice are to be avoided in future. Ironically enough, the police officers concerned in fabricating evidence in the particular cases of miscarriage of justice which have shaken public confidence would doubtless insist that they were all acting, as they imagined, in the public interest. By reason of mistaken forensic evidence or for some other reason, they were convinced that the suspects they had arrested were guilty and, therefore, no holds could, in their view, morally be barred in securing their conviction. Public outrage at the crimes perpetrated demanded it, and service and personal prestige were at stake. In these circumstances, observance of the Judges' Rules was a tedious irrelevance and senior police officers and perhaps even judges could be relied upon to turn a blind eye on alleged irregularities. A conviction would silence all criticism and judicial or service commendations could be confidently expected.
To persuade the police to abandon this self-justifying and cynical contempt for legal rules and service regulations is a difficult proposition. It calls for something of a revolution in police thinking and perhaps in public thinking too. All too often, contemporary crime fiction and drama take police malpractices for granted and morally justified. And it is not unknown for persons in high places to encourage the police, sotto voce, to 'give the criminal a lesson'.
The tragedy in all this is that there lies in the whole criminological and penological disciplines an enormous contradiction, a doctrinal incompatibility. On the one hand, the social sciences teach us that the thought processes of man are determined by genetic and environmental factors and that therefore the criminal is no more than the inevitable end product of his own mental development. On the other hand, literature, religion, native common sense, and sheer animal instinct, persuade us that the criminal has a free will outside his mental processes and is therefore 'responsible' and deserving of retributionary pains and penalties equal to the public outrage he has provoked. So the silent majority take delight in ridiculing the social scientists who would advocate a compassionate view of criminality. And policemen, by and large, are part of the silent majority. Indeed, their everyday contact with the sharp end of criminality, with the worst aspects of human nature, reinforces their case-hardened view of crime and criminals. Undeniably, there has been of late an increase in the intake of graduate recruits to the police service, but the great majority of policemen will be modest holders of a few 'O' Levels, and have much in common with their rough and ready opposite numbers in the television series 'The Bill'. The finer points of moral philosophy will be for them a rarified intellectual exercise, often beyond their comprehension.
Not that a scientific view of the criminal mind should be a sentimental, milk and water, attitude. For the process of justice is part of our environment and, insofar as human behaviour can be influenced by disciplinary or reformative penalties, these must often be sharp and unpleasant. Those convicted of the more serious crimes such as murder, manslaughter, rape and robbery with violence, have to be restrained for a considerable period and will have to suffer severe sentences, not primarily to reform or deter them, but to deter the rest of us. But whereas the silent majority may derive some retributionary satisfaction from these severe sentences, the determinist is obliged to regard them compassionately as a painful necessity. Here lies the contradiction and the incompatibility between reform and individual deterrence on the one hand, and prevention and general deterrence on the other. While for the determinist, the vicious criminal does not 'deserve' his exemplary punishment, the well-being of society justifies it.
Since the police service is part of the State's organisation to deal with crime, it should be trained to see criminal behaviour in this light, to accept that it has a professional duty to arrest dangerous criminals and assist in the process whereby they are both prevented from repeating their crimes, and also serve as general deterrents, but to recognize that this duty must be discharged with a quite massive detachment. If policemen see themselves as satisfying the retributionary instincts of society, or seek to satisfy their own, they will be able to justify any and every departure from the rules and regulations laid down to prevent miscarriages of justice. It is this retributionary zeal which, I fear, is at the heart of much police misconduct.
Of course, what I am recommending, is a revolutionary change in society's attitude to crime and the concept of criminal responsibility which underlies our criminal law. This does not involve departure from the concept of mens rea, for the state of a man's mind at the commission of a crime will always be important. Rational intent must always be proved to justify reform or deterrence. But judicial pronouncements often have retributionary overtones and, regrettably, the grounds for determining early release for discretionary life prisoners under the Criminal Justice Act, 1991, require that the demands of retribution as well as deterrence must be satisfied.
Psychological determinism is not some new-fangled idea. It has been the subject of earnest debate for many years. It is an element in secular humanist philosophy and was an ingredient in the teaching of Schopenhauer, Spinoza, Mill, Russell, Hobbs, Ryle and Skinner. Judge Cardozo once wrote, 'The thirst for vengeance is a very real, even if it be a hideous thing; and states may not ignore it till humanity has been raised to greater heights than any that has yet been scaled in all the long ages of struggle and ascent'. Perhaps it is time for the State, through its judiciary and police service, to lift society to these greater heights.
Some writers raise the objection that determinism provides a convenient excuse for every crime. 'If my actions are predetermined, why should I strive to do right?' The answer to this facetious question is that you should do right because the well-being of society requires it.
Police officers, likewise, should strive to observe a strict ethical code and follow their rules and regulations with scrupulous self-discipline. They should do so because otherwise the law they seek to enforce will fall into disrepute and they will eventually become a law unto themselves.
|Leslie James was Chief of Police of the Eastern Region from 1956 to 1963.~…