REPORTS OF COMMITTEES
| Published date | 01 May 1981 |
| Date | 01 May 1981 |
| DOI | http://doi.org/10.1111/j.1468-2230.1981.tb01631.x |
REPORTS
OF
COMMITTEES
THE
ROYAL COMMISSION
ON
CRIMINAL
PROCEDURE
THE
Report of this Royal Commission together with its constella-
tion of research studies is
a
notable achievement. It is also
a
highly
contentious one.' The chairman, at least, ought to appreciate both
the veneration accorded to sacred cows and the stringency with
which they are sometimes defended. Much
in
this report deserves
praise and speedy implementation, but there are aspects of it which
ought, in my submission, to be rejected in any free society. What
follows is an attempt to justify both propositions.
The Royal Commission starts from
a
basis in principle. Any
system ought, it contends, to be characterised by fairness, openness
and workability. A civilised society ought to protect absolutely the
freedom of
a
person's property from general searches, the right not
to be forced to incriminate oneself, and the right, when in the hands
of
the State, not
to
be subjected to violence and other inhuman and
degrading treatment.2 Throughout, there is
a
welcome emphasis not
only on the retention of rights, but also on the need to advise sus-
pects what their rights
are,
and to treat them with humanity. It must
however be conceded that within the rather indefinite boundaries
so
set,
a
wide variety of powers and arrangements could be envisaged,
some distinctly repressive in character.
This note follows the format of the report, considering in turn
police powers in the investigation of crime, arrangements for the
conduct of prosecutions, and pre-trial procedure including disclosure
and committal proceedings.
1.
Police
powers
In assessing the Royal Commission's proposals,
I
adopt some basic
propositions which might well not be generally agreed.
I
agree with
the Report in thinking that civil liberties are not well protected by
a
system which seeks to control the police by requiring them to
work with
a
set of minutely limited powers, many of which were
drafted ad hoc to cater for particular situations as they arose. A
regime of wide, functional but not unlimited powers would be
better. Secondly,
I
do not believe that police abuses are necessarily
a
function of the breadth
of
powers.
No
doubt constables engaged
in overbearing conduct like to appeal for support to powers
apparently available, but it is clear enough that abuses by police
occur in the absence of powers. Furthermore, some actions which
now constitute abuses are reasonable in character and ought to be
brought within powers and regulated. But while the grant of wider
~~
1
See,
e.g. Sunday Telegraph
editorial, January
11,
1981, describing the report as
2
Report
of
the
Royal
Commission on Criminal Procedure
(Cmnd. 8092)
herein-
''
useless."
after
''
the Report."
296
May 19811
REPORTS
OF
COMMITTEES
297
powers could no doubt help the police to stay within their limits, one
cannot accept that a comprehensive and
fair
code
of
police powers
will result automatically in the police working within its limits. The
experience of other countries suggests that the police still find
restraints irksome and endeavour to circumvent them. The Royal
Commission shares this view; some part of the debate concerns
whether their proposed controls, in particular the recording of
reasons coupled with later review of police practices, are adequate.
It is also apparent that while some
of
the Report's recommendations
amount to a legalisation of practices now illegal
or
of
doubtful
legality, the Report does not suggest bringing them within powers
simply because they occur frequently. The Report stresses not only
utility, but whether they meet its criteria and can be controlled ade-
quately. Strong differences of opinion on these matters are
inevitable.
Many admirable recommendations can only be alluded to briefly.
It
is important that they be mentioned, however, because the Report
does not deserve to be dismissed entirely
as
the 11th Report of the
Criminal Law Revision Committee was, because of criticisms
of
a
small, albeit objectionable part
of
Among the wholly admirable
recommendations contained in it are those relating to the intercep-
tion of communications which would be brought within judicial
supervision, in line with the systems adopted in other common law
countries and with our obligations under the European Convention
on Human Rights.' Retention of powers to stop and search for
stolen goods and the extension
of
stop and search powers to offen-
sive weapons generally is necessary to crime control. It does not
seem sensible to ask the police to keep the peace without giving
them adequate powers to do
so.
Happily,
"
sus
"
is
in
any event in
the process of abolition. There seems little reason to think that the
new power will be used more widely than the bundle
of
powers
which now obtains, imperfect
as
they are. But there is an evident
need for safeguards against abuses which occur all too frequently
now.
A proposed carefully controlled power to search
for
evidence
is
wholly admirable. In particular, it will enable the police to obtain
access to financial records, a power which they have lacked for
far
too long. The absurd restrictions imposed by the Bankers Books
Evidence Act
1879
and section
441
of
the Companies Act
1948,
would no longer inhibit investigations into frauds. The normal mode
of
procuring financial documents,
if
the recommendation
is
accepted,
will be to serve a document akin to a witness summons on the person
in possession
of
the information; a warrant to search
for
evidence
would be
a
last resort.
Certain restrictions would go. Fingerprinting, while not to be a
3
Criminal Law Revision Committee, 11th Report,
Evidence,
Cmnd. 4991.
4
See
Malone
v.
Metropolitan Police Commissioner
[1979] Ch.
344
and O'Higgins,
Cases and Materials
on
Civil Liberties
(1980),
pp.
368-391.
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