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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


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