Judges question trial by jury, right to silence, discuss capital punishment

Judges question right to silence. "An innocent man has a defence," Judge Charles QC says.

Inner London Crown Court today
Inner London Crown Court in historic Southwark

[Michael Smith was a reporter at the Old Bailey Criminal Court, London, from 1989 to 1994. The Old Bailey is one of the world’s oldest and most famous courts. A court has been at the site since 1539. The site was the location of the famous, and infamous, Newgate Prison from 1188 to 1902. Public executions, by hanging, were common. The executions drew huge crowds. A total of 1169 people were executed inside and outside the prison. James Pratt and John Smith, in 1835, were the last two men executed for ‘sodomy’. Michael Barrett, in 1868, was the last man hanged publicly. George Woolfe, in 1902, was the last man hanged inside the prison. Newgate Prison was demolished in 1904. The Old Bailey of today was built in 1902. Michael Smith attended the event below, a special occasion to mark the 200th anniversary of Inner London Crown Court. The judges spoke to him – on the record – at the event and again the next day. He filed this story 16 January 1994.]

At a special event to mark a milestone in London’s legal history last Friday judges questioned long-held principles of the criminal justice system such as trial by jury and a person’s right to silence.

Inner London Crown Court was 200 years old on 14 January 1994.

The court was one of London’s first Sessions Houses, the forerunners of today’s Crown Courts.

The Southwark area, where it’s located, is steeped in history; the site of the starting point of Chaucer’s celebrated Canterbury Tales pilgrims and the location of Shakespeare’s legendary Globe Theatre.

The courthouse has witnessed bold and sometimes controversial changes to what is generally regarded as the best legal and criminal justice system in the world.

The law has been developing in England since the 10th century. It is also known as Common Law, so called because it was common to the king’s courts across England. English Law/Common Law has gone around the world. Today more than a third of the world’s population live in Common Law jurisdictions.

The 150 judges, QCs, barristers and law clerks who gathered last week to celebrate the milestone were overtly proud of their legal system and in a good mood. There was champagne, canapes, a jazz band and much smiles and laughter.

But the anniversary, which coincides with what may turn out to be another turning point in Britain’s legal history, did not past without germane and – somewhat surprisingly – blunt comment from several judges on reforms proposed in the Criminal Justice and Public Order Bill before Parliament.

The evening was not crowned with any formal speeches or the like. But several judges agreed to talk to me – on the record – about past changes and future directions.

Lord Justice Christopher Staughton, who sits at the Court of Appeal, described the legal system in 1794 as “pretty rough” and “summary justice”, but suggested shortcomings may have been over-rectified.

“We have corrected many of the faults of 200 years ago, but it seems to me we have gone too far,” he said.

“Trials today are much more elaborate. They take much longer and cost much more than they should.

“I doubt we have got it right at the moment.”

Lord Justice Staughton said he disagreed with Home Secretary Michael Howard’s view that a defendant’s right to silence when first questioned by police – some would argue the cornerstone of the presumption of innocence in English Law – should be abolished. [The proposed Bill would also give judges power to force defendants to give evidence at trial.]

But, he added, it was “sheer common sense” for judges and barristers to be allowed to comment to a jury on why a defendant has kept his mouth shut.

“I cannot understand the argument, even though it apparently appealed to the [1991] Royal Commission on Criminal Justice that comment should not be allowed,” he said.

“If a defendant had a perfectly reasonable explanation for what he was doing surely he would say so.”

Trial by jury, also under threat from some quarters, was a “vastly expensive luxury we just cannot afford” in “trivial” cases such as theft of a 50 pence item from a supermarket, he suggested.

Judge Bernard Charles QC, a former Inner London judge who was recently promoted to senior judge at Knightsbridge Crown Court, declared that in his opinion Britain’s criminal justice system was “bloody good”.

He added, however: “It is always good to review the system.”

He slammed as “simply ridiculous” a defendant’s existing right to refuse to answer questions at the police station.

“An innocent man has a defence,” he said.

An ardent supporter of trial by jury, he said that right should remain because judges and magistrates “who hear the same old story again and again” must inevitably become “cynical”.

“If you have 12 people who have never heard ‘that old story’ before then they will be able to view the case in a fresh light,” he said.

He added: “Of course judges and magistrates become cynical.”

The host of the bicentenary party, Inner London’s senior arbiter Judge Jonathan Van Der Werff, spoke to me at length a day after the celebration, which were paid for by the judge’s mess fund.

He spoke candidly on a range of issues.

“Everything has changed radically over the past 200 years and our criminal justice system has developed and improved over that period of time,” he said.

“What happened in court 200 years ago on this site would seem to people here and now to be very strange.

“We now have a system which, although the subject of considerable criticism in recent times, seems to me to be a very good and fair one.

“I do not know of any other criminal judicial system in any other country in the world that can truly be said to be better than ours.

“But having said that, no system devised by men and women can possibly be perfect.

“No doubt our system will continue to evolve and change in the future.”

Judge Van Der Werff said he held no strong views either way on the right-to-silence debate.

But a reintroduction of the death penalty, on which the House of Commons [Lower House] will soon vote, would, he feels, be a mistake.

“Most criminal judges and barristers are against capital punishment – though I know of some exceptions,” he said.

“We do know that, good as we think our system is, mistakes are undoubtedly made from time to time.

“If someone has been hanged there is not much that can be done to put that right.”

The hardest part of a judge’s role, he said, was to decide whether an offender should lose his or her liberty and, if so, for how long.

“It is right that there should be a wide range of alternatives to imprisonment available to the courts,” he continued.

“Today there is such a range. But sentences of imprisonment will always be necessary for serious offences and their length is bound to be determined by the gravity of the crime.

“If the courts do not punish criminals in a way that is seen by victims, their families and the public at large to be a proper way then the courts are not doing their duty to the public.”

He said imprisonment “does work, contrary to what some people say”.

“It is a real punishment, which every defendant would prefer not to receive,” he said.

“And obviously while a defendant is serving a sentence of imprisonment, provided he is not at large on leave granted by the prison, he is unable to commit any other offences.”

If Inner London Crown Court, or its equivalent, survives another 200 years, another group of judges and dignitaries – and reporter – will, no doubt, gather at the historic site, celebrate and ponder.

I wonder what they will be saying about England’s legal and criminal justice system circa 1994.


Memo: The reporter is Michael Smith who, together with Caroline Godwin of Central News, attended the bicentenary celebration.

Ends memo

About Michael Smith 6 Articles
Michael Smith is a journalist and media adviser. He has worked extensively in the international humanitarian aid sector, emergency services, international law, autism and public affairs.

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