News International phone-hacking trial

[Pabmusic]

The problem I have is that I do not think that the fact that it is not an enquiry means that a British jury trial is not concerned about what actually happened.


It's cynical to imply that it is nothing but an adversarial contest, a sort of game played by opposing counsel.

Besides, that ignores the role of the jury, whose task it is to determine the truth about the facts that have been put before them. If that isn't an attempt to find out what actually happened, I don't know what it is.

Arguably its adversarial nature means that it is not the best way of arriving at the truth. But that's a different question.

Sorry, Jean, but that's how it is. Can the Prosecution prove the case to the relevant standard (beyond reasonable doubt)? If not, the defendant is not guilty. Prosecution and Defence battle it out, with the judge as an umpire.

The jury's role is indeed to determine which facts are proved beyond reasonable doubt, but it's all directed at answering the question: Has the Prosecution proved it's case? Not: What actually happened here? In many cases that may amount to the same thing, I agree, but that's coincidental.

As to it being 'nothing but an adversarial contest, a sort of game played by opposing counsel' - well, that's the defining feature of Common Law systems. Here: http://en.wikipedia.org/wiki/Adversarial_system

The biggest danger of it (I think) is the risk that police stop investigating as soon as they have evidence against one person.

[Pabmusic]

It may be a distinction without a difference, but surely, the inquiries are carried out prior to the trial...doesn't the CPS first have to agree that the initial investigation (inquiry) has established a case in which there is a prospect of conviction. The Defence is there to try to find any weakness in that case which might give rise to a reasonable doubt of guilt. The jury decides who has 'won' the argument.

You're right. It's actually more complicated even than this. First, the police have to decide whether to charge someone in consultation (sometimes) with the CPS. If the CPS decides to proceed on the evidence gathered by the police, there has to be a court hearing to establish whether there'e a prima facie case - that is, if it were all true, does this amount to a crime at all? Until 1933 this involved (for felonies at least) empanelling a Grand Jury of 24 to hear the evidence; if they thought there were enough evidence to go to trial, it was put back to the next Assizes. Nowadays, Grand Juries have been replaced by committal hearings (which can go through on a nod if both parties agree), Assizes by Crown Courts and we don't have felonies any more but indictable offences.

And then, when the Prosecution has presented its case, the Defence can argue that the evidence actually adduced does not support the charges - the case can be dismissed before the Defence has to present anything.

But at each stage the question is always 'does this evidence support the charge that's been laid?' and not 'what else is needed to find out what actually happened?.

The most horrifying example of this principle in action was an appeal case in the Supreme Court of Virginia in about 1995 (I think it may have been McKenzie v The Commonwealth of Virginia, but it's been a long time since I lectured on any of this.) Anyway, the appellant was awaiting execution for murder when a prisoner in another state confessed to the murder that 'McKenzie' was to die for. McKenzie appealed, seeking dismissal of his conviction or a retrial. The Virginia Supreme Court dismissed the appeal and McKenzie was electrocuted.

The court said that it would not hear the new evidence, because the court was not concerned with enquiring into the circumstances of the murder. The Prosecution at the original trial had presented evidence that had been tested in court, the Defence had done something similar, and the jury had convicted on the evidence. That was all that was required and, as long as nothing went against the principle of a fair hearing the Supreme Court would not interfere.

Now that stems entirely from the adversarial system. Fortunately, cases like the above have usually been followed by a change in the law. Not in Virginia, though.

[amateur51]

Where Chickens Dare ... and end up in the pot, apparently

"Rebekah Brooks and her husband hatched a complicated plot to hide evidence from the police only to be foiled by a conscientious cleaner, an Old Bailey jury has heard. It was a curious tale involving an underground car park, two pizzas and a famous movie line of Richard Burton's.

The story was told by the Crown as part of a wider allegation that, as the chief executive of News International, Brooks had tried to conceal evidence of wrongdoing at the News of the World by deleting email records and destroying her journalistic notebooks. She denies two counts of conspiring to pervert the course of justice."

http://www.theguardian.com/uk-news/2013/nov/04/phone-hacking-trial-rebekah-brooks

[eighthobstruction]

I'd really like to know the exact words used by Andy Coulsons council....on BBC every news bulletin was slightly different....

1)coulson was never part of a conspiracy into listening to voicemails....
2)coulson was never party to any agreement....
3) coulson did not take part in any voice mail hacking....
4) "it is his case that he was never party to an agreement to hack phones whatever others might have been doing on his watch" supposedly a direct quote in Guardian from Edis

All just a bit different and seemingly leaving the possibility of 'knowing' about voice mail interception still available....hmmmm words eh....tricky....Coulsons has of course that 'contempt of court' or 'perjury', 'perverting the course of justice', charges up in Scotland to contend with....and this trial will hopefully get some answers which will answer the questions up in Scotland....

[french frank]

"Rebekah Brooks and her husband hatched a complicated plot to hide evidence from the police only to be foiled by a conscientious cleaner, an Old Bailey jury has heard. It was a curious tale involving an underground car park, two pizzas and a famous movie line of Richard Burton's."

http://www.theguardian.com/uk-news/2...rebekah-brooks

"... the chauffeur drove the Brookses to see their solicitor, leaving the bin bag still behind the waste bin.

In their absence, a cleaner, Mr Nascimento, had noticed the bag and its contents and taken it to his manager. When the Brookses returned, CCTV records showed, Charlie Brooks had searched the area around the waste bin and texted the security man who had left the bin bag there: "Need to get Rebekah some lunch. Pizza."

But by then, said Edis, Nascimento's manager had decided to call the police "which is how the police ended up with the bin bag"."

I sss-eeeeeeeee ...

[amateur51]

"... the chauffeur drove the Brookses to see their solicitor, leaving the bin bag still behind the waste bin.

In their absence, a cleaner, Mr Nascimento, had noticed the bag and its contents and taken it to his manager. When the Brookses returned, CCTV records showed, Charlie Brooks had searched the area around the waste bin and texted the security man who had left the bin bag there: "Need to get Rebekah some lunch. Pizza."

But by then, said Edis, Nascimento's manager had decided to call the police "which is how the police ended up with the bin bag"."

I sss-eeeeeeeee ...

I hope Mr Nascimento gets a medal

[french frank]

I hope Mr Nascimento gets a medal

At least he didn't leak the information to The Guardian.

[amateur51]

At least he didn't leak the information to The Guardian.

Who gave birth to that rumour?

[jean]

...It's cynical to imply that [a British criminal trial] is nothing but an adversarial contest, a sort of game played by opposing counsel...

Sorry, Jean, but that's how it is...that's the defining feature of Common Law systems. Here: http://en.wikipedia.org/wiki/Adversarial_system

To try to make things clearer, I've emboldened the words I want to emphasise.

Of course the defining feature of an adversarial as opposed to an inquisitorial trial is its adversarial nature. But the purpose of both systems is to establish the truth, and there is nothing in the wiki article that contradicts this. It is peppered with phrases such as a perspective on the case which is the correct one; fundamental justice; trier of fact.

The biggest danger of it (I think) is the risk that police stop investigating as soon as they have evidence against one person.

There is always a danger that whoever is doing the investigating, whether it's the police or investigating magistrates, will stop the process too soon because they genuinely believe they have found all the evidence that's needed to show what happened.

But at each stage the question is always 'does this evidence support the charge that's been laid?' and not 'what else is needed to find out what actually happened?

But these questions are asked at different stages. If you think you have discovered everything needed to establish the facts of the case, you don't go on looking. It's possible that under our system the police have too much power to make the decision when to stop, but that's a different question; no trial however conducted is expected to last for ever, and a decision on the appropriate point at which to wrap things up is always made by someone.

It's certainly a problem that all systems have an inbuilt tendency to respect their own decisions and to resist opening them up to further scrutiny. Didn't Lord Denning famously refer to the possibility that the police should be shown to be wrong as an appalling vista? - though he later went back on this.

The most horrifying example of this principle in action was an appeal case in the Supreme Court of Virginia in about 1995 (I think it may have been McKenzie v The Commonwealth of Virginia, but it's been a long time since I lectured on any of this.) Anyway, the appellant was awaiting execution for murder when a prisoner in another state confessed to the murder that 'McKenzie' was to die for. McKenzie appealed, seeking dismissal of his conviction or a retrial. The Virginia Supreme Court dismissed the appeal and McKenzie was electrocuted.

The court said that it would not hear the new evidence, because the court was not concerned with enquiring into the circumstances of the murder. The Prosecution at the original trial had presented evidence that had been tested in court, the Defence had done something similar, and the jury had convicted on the evidence. That was all that was required and, as long as nothing went against the principle of a fair hearing the Supreme Court would not interfere.

This is horrifying indeed, and above all else it screams out against the death penalty. I had never heard of the case, and would welcome more details.

But I do not believe that the dismissal of evidence that goes against a decision already reached is the preserve of an adversarial system.

.

[Pabmusic]

...But I do not believe that the dismissal of evidence that goes against a decision already reached is the preserve of an adversarial system.

Neither do I, Jean. It's just that an adversarial system encourages this. However, people are nowadays well aware of the danger - I've said nothing that hasn't been a concern for many years, and various legislation has sought to tighten things by allowing full disclosure of evidence, for instance.

I'll try to find my old notes of the Virginia decision, but it might take a while.

[Pabmusic]

...I'll try to find my old notes of the Virginia decision, but it might take a while.

I've found this, a US Supreme Court case from 1993 in which it was decided that evidence of innocence was not grounds for a retrial. Maybe I have confused this with a subsequent Virginia Supreme Court case (though 'Virginia' and a Scottish name are so strong in my mind).

Anyway, the principle is the same. I agree that it's good evidence for disliking the death penalty, but that's not really the point, which is that the decision is consistent with an adversarial system where the court's main purpose is to judge between two sides, not to discover what actually happened.

The case is here: http://en.wikipedia.org/wiki/Herrera_v._Collins

[jean]

Thank you.

It is bizarre in the extreme that a man who is very likely innocent has to argue against being executed on the grounds that it is cruel and unusual punishment, when an innocent person ought not to be punished at all.

But it is also true that the arguments presented here against a re-trial could be used to disallow any appeal ever, and yet they are not always used in these situations.

I will discuss this with the people I usually discuss such things with, but they are a bit busy at the moment and it may take some time.

[Pabmusic]

...t is also true that the arguments presented here against a re-trial could be used to disallow any appeal ever, and yet they are not always used in these situations...

Similar arguments were made when people were suggesting our having a court of appeal for criminal cases. Remember that the Court of Criminal Appeal (now part of the Court of Appeal) was not established till 1907. And even then it took until 1933 (I think - a case called Wallace) for it to overturn a murder conviction on the facts, rather than a point of law!

[jean]

Similar arguments were made when people were suggesting our having a court of appeal for criminal cases...

How similar, though?

And is it not significant that those arguments did not prevail?

...And even then it took until 1933 (I think - a case called Wallace) for it to overturn a murder conviction on the facts, rather than a point of law!

That does not tell us much, unless we know how many convicted murderers there were during that time who could have produced evidence of their innocence which the courts refused to consider.

A conviction which is overturned on a point of law may be unsafe, but it was not necessarily wrong in the first place.

[Pabmusic]

How similar, though?

And is it not significant that those arguments did not prevail?

Well, the establishment of a court of criminal appeal was delayed by at least 30 years (it was considered first as part of the establishment of the Supreme Court of Judicature - basically the Court of Appeal and House of Lords). As to how similar, I wasn't intending to do a paper on it, but the thrust of the argument said that (1) a jury had already convicted, having heard the evidence, (2) the standard of proof was very high (beyond reasonable doubt), and (3) it was not appropriate to allow new evidence at such a late stage.

...That does not tell us much, unless we know how many convicted murderers there were during that time who could have produced evidence of their innocence which the courts refused to consider...

When the Court of Criminal Appeal was established in 1907, it followed two or three scandalous cases of miscarriage (including Edalji, whose innocence Arthur Conan Doyle helped establish). The court could overturn a conviction on one of two grounds - (a) mistake of law, or (b) factual (the conviction was perverse or unsafe). The Wallace case I quoted was certainly the first murder case overturned on the second ground, but it may actually have been the first of any kind allowed on the second ground (I can't remember). Remember that to Mr Wallace, the overturning of his conviction for the murder of his wife meant that he wasn't hanged (he died of a stroke within a few months, though).

A conviction which is overturned on a point of law may be unsafe, but it was not necessarily wrong in the first place.

I can't disagree.