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35 Medico-Legal J. 1 (1967)

handle is hein.journals/medlgjr35 and id is 1 raw text is: EDITORIAL A STATELY BUT ARCHAIC MINUET IT was in this colourful phrase that the Home Secretary, Mr. Roy Jenkins, summed up the present state of the criminal law during the course of his speech to the House of Commons on the second reading of the Criminal Justice Bill. This Bill is perhaps the most important piece of legislation affecting the criminal law for many years, and it is right that it should be closely considered and examined, both in and out of Parliament, before it actually becomes law. The Home Secretary declared that his object had been to construct a Bill which would be consistently liberal and rational in its approach to the difficult and emotional questions of crime and punishment, while at the same time being directly relevant in all its approaches to the most menacing crime situation with which this country has recently been confronted. It is by this standard that the Bill ought to be considered and judged. Mr. Jenkins went on to say that he had tried to follow three main strands of policy which may be summarized as, first, streamlining criminal court procedure, secondly, providing a criminal law concerned with arriving at the truth, both for the guilty and the innocent, and thirdly, modernizing our penal system so that it can better perform its triple role of deterrence, rehabilitation and effective custody. There are important provisions in the Bill which deal with the vexed question of committal proceedings. It is proposed that where a defendant is represented by solicitor or counsel, the prosecution will give him in advance copies of those state- ments of witnesses whom they do not wish to call to give evidence orally. A defend- ant will have an absolute right to demand the attendance of any or all of these wit- nesses, but, if he does not do so, then the witnesses will not attend at the magistrates' court, and unless there is a submission that the statements disclose insufficient evidence to put the defendant on trial by jury for the offence, the examining justices may commit the defendant for trial without consideration of the contents of the statements. Now it would appear that this may be all very well in theory, but it is really implicit in this proposal that all defendants should have adequate legal repre- sentation at a very early stage, whether privately instructed or with the help of Legal Aid, and that the legal representatives should have ample time to consider whether to adopt this procedure. The Bill does not state when the defence is to be provided with a copy of the statement. In practice, the prosecution does not always know whether a defendant is going to be represented before they get to court, or who is going to appear for a particular defendant. One hopes that it will not become normal practice merely to serve a copy of the statements at court immediately before the prosecution applies to make use of this procedure. This may be satisfactory in very simple cases where the defendant intends to plead guilty in any event and has given instructions to that effect, but in a case of any complexity, or one involving questions of identification, it is hard to imagine any responsible legal representative permitting this procedure to be used, bearing in mind his duty to his client. One other matter is also questionable, and that is that the Bill envisages that the examin- ing magistrates shall not consider the contents of the statements. Surely it should be the duty of any magistrate to consider the contents of the statements in the general interests of justice, for it is possible to contemplate a situation where a person might be committed for trial under this procedure, and, by reason of inexperience or inadequacy, no submission of insufficient evidence is made, but should have been, and in fact there is no case to go for trial. If the magistrates are not even to consider the contents of the statements, is it not possible that an injustice might be done to a defendant, through no fault of his? There is also in the Bill the provision of making it unlawful to publish or broadcast reports of committal proceedings beyond the bare I

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