Appraisal and Review

The concluding Chapter scrutinises the validity and relevance of the book’s hitherto unseen archival files, from which its account stems. In pulling together its main themes concerning the role of civil servants, the Executive and the Judiciary in administering criminal justice, it retraces the trajectory of suspects’ rights in the late nineteenth century, from their seemingly ‘bedrock’ foundation within the common law to their rough distillation (at home and abroad) through various iterations of Judges’ ‘Rules’, themselves of dubious pedigree. In documenting this journey, this Chapter underscores how Senior Judges, confronted by Executive power impinging upon the future direction of system protections, enfeebled themselves, allowing ‘police interests’ to prevail. With Parliament kept in the dark as to the ongoing subterfuge; and the integrity of the Home Office, as an institution, long dissolved, ‘Executive interests’ took the reins of a system within which much mileage for ‘culture change’ lay ahead. This Chapter helps chart their final destination; ultimately, one where new Rules (the CrimPR) replace those exposed as failures, leading to governmental success of a distinct kind: traditional understandings of ‘rights’ belonging to suspects and defendants subverted into ‘obligations’ owing to the Court and an adversarial process underpinning determinations of guilt long-disbanded in the quest for so-called ‘efficiency’. In explaining the implications of the events discussed in this book for the issue of ‘Judicial Independence’ and the ‘Separation of Powers’, this Chapter offers a theoretical framework that illuminates the role and practices of the Senior Judiciary in criminal justice policy today.

The Politics of the Judiciary

A foundational theme of this chapter is the refutation of the generalized claim that judges are ‘independent’ and free from political influence. In reconsidering the institutional realities of judicial independence, it contests the views and theories advanced by leading commentators whom have sought to show that judges are ‘political’, not least Professor J A G Griffith in his seminal, The Politics of the Judiciary. Other theorists considered include Alan Paterson, Robert Stevens, David Robertson, and Harry Annison. The chapter critically reviews the strengths and weaknesses of such theories and demonstrates instead how the ‘political’ character of judges may be explicated by empirical data drawn from internal governmental files rather than previously favoured methodologies. Contrary to these widely adopted accounts, this chapter posits that throughout the last century, a cadre of senior judges in criminal cases have been overtly political in a way previously not understood. Senior judges, it is argued, have had a dynamic involvement in building state institutions and state ideology: working in secret with the executive in formulating policing policies, initiating far-reaching change in the political economy of criminal justice, and setting the agenda for successive legislative interventions, underpinned by a state bias, having held back rights for suspects and defendants and commandeered the process of subjugating the Bar.

The Origin of the Judges’ Rules

The point at which the liberty of the subject can be subject to interference by force of the law is a critical issue and one reliant on the integrity of judicial oversight. Focusing on the start of the twentieth century, this chapter addresses the discontinuities in the then existing rules relating to the interrogation of suspected persons (embodied by the Judges’ Rules of 1912, whose obscure origins are discussed) and the divergent responses of different police forces to the cautioning and questioning process. From this it explores how the need for closer formal regulation arose and the role of Home Office officials (the very same as those involved in the Adolph Beck case) in drafting the first revision of the Judges’ Rules in 1918 which were to remain in force for almost fifty years. These inapt and inexpertly drafted Rules thereafter laid the foundations for policing regulation in jurisdictions around the world.

Constitutionalism and the Westminster Model

This chapter evaluates the constitutional framework of the United Kingdom, revealing a disturbing new settlement of State power. In particular, it hones in on the ‘Westminster Model’ of government which advertises a strict separation of powers supposedly insulating judges from direct executive influence. An altogether different reality emanating from the archival trove of intergovernmental files is found; one which challenges the grundnorm of judicial independence embedded within the Westminster model of governance. Although Executive dominance of the judiciary runs contrary to basic texts and beliefs, this chapter lays out an alternative perspective which implicates the senior judiciary in subterranean policymaking that has led to the steady erosion of procedural due process. It examines where the Civil Service fits into this picture, and draws attention to its servants’ inherent shortcomings as ‘bureaucrats of the law’ having assumed responsibility in large part for the body of sub-standard work distributed under the misnomer: ‘Judges’’ Rules. It explains how, on the critical issue of an individual’s vulnerability when confronted by police power, civil servants, tasked with furthering the ‘public interest’, were far more adept at bolstering ‘police interests’, with backing from the then Head of the Judiciary (Lord Chancellor) and his Law Officers (the Attorney-General and Solicitor-General). By documenting key historical events that impacted upon the criminally suspected or accused, awareness of which has been muted or unknown, this Chapter explains how the doctrine of the Separation of Powers is contravened and the principle of judicial independence muddied to the point of non-recognition.

The War of Attrition and the Vanquishing of the Judges

This chapter reveals how the judiciary succumbed to executive pressure in regard to subsequent drafts of the Judges’ Rules. This occurred in a manner which directly contests the constitutional principle that nothing should be said or done to shake confidence in the good sense and freedom from bias of those who have to administer justice, a principle earlier set out by the Home Office itself. The analysis shows the relevance of contemporaneous occurrences in criminal justice (including, but not limited to, the Sheffield Rhino Whip affair—where police officers assaulted prisoners not suspected of crimes; the Challenor incidents—in which bricks were planted on innocent people; and the Stephen Ward/Christine Keeler/John Profumo scandal—in which the police engaged in dubious arrest, detention, and interrogation practices at the behest of the executive) as it uncovers the constitutional struggle between the executive and the judiciary in which the judges were forced into a climb-down by political threats that went to the heart of British constitutional arrangements and the associated notion of judicial independence.

The Aftermath

Chapter 4 traces the aftermath of the formulation of the Judges’ Rules over the period 1918–60 including their reissue and additional interpretations of 1930, 1946, and 1947. In this account the technical disarray over the meaning of the Rules is analysed and the consequences for policing practices. There is an emphasis both upon the impact upon police culture, particularly within the Criminal Investigation Department (CID) from its origins in 1878, and the emergence and intensification of various forms of police deviance and corruption. The chapter links these developments to the experiences of suspects subjected to police questioning practices alongside, in the age of capital punishment, accounts of early cases of miscarriages of justice including that of Timothy Evans for murders committed by John Reginald Christie. In the face of Home Office resistance, public pressure eventually forced the establishment of a Royal Commission on the Police (1962) and a separate review of the Judges’ Rules (1964).

Rule of Law and Common Law

This chapter argues that the conflict earlier described between the executive and the judiciary should reset the debate about the meaning of the ‘rule of law’. To this end, it explores the implications that the history of the Judges’ Rules has for both the ‘Rule of Law’ and the role of judges in relation to the common law. By shedding light on the ambiguous nature of the Rules, it first questions whether they were ‘law’, and if so, whether judges could be said to legitimate authors of them—itself a controversial and heavily contested notion. In this regard, it examines the principal justifications for judicial law-making, and questions how these might relate to other major judicially created or endorsed features of the modern criminal justice landscape, namely, state-induced guilty pleas and the Criminal Procedure Rules (CrimPR). Additionally, it challenges the locus classicus of Tom Bingham as to the meaning of the ‘Rule of Law’. By focusing on the ignored value of adversarial proceedings, it demonstrates how Bingham’s celebrated analysis of the Rule of Law is flawed and its list of ‘ingredients’ left wanting. In consequence, it argues that those transformative initiatives conceived outside formal adversary structures (including the Judges’ Rules, state-induced guilty pleas, and the CrimPR) cannot meet the tests of legitimate policy-making or the rule of law. The chapter ends by looking beyond the debate on judicial law-making in order to address a related deep-seated problem that arises from judges’ involvement in setting criminal justice policy: their entrenched homogeneity.

The Legacy of the 1964 Rules

This chapter discusses the aftermath of the executive–judicial conflict through an analysis of the impact of the 1964 version of the Judges’ Rules. This includes scrutiny of the technical-legal implications of the Rules, the impact upon police culture and police practices, and consistent failure of the Home Office to deal with police malpractices. It also examines the extraordinary turnaround in the stance of the judiciary, the long-term effects of which have since unfolded in an anti-adversarial culture exemplified in the form of so called ‘culture-change’ within the criminal justice system, now enshrined by the Criminal Procedure Rules (CrimPR). The discussion covers judicial decision-making as well as notorious miscarriages of justice and explains the deficiencies of the modern role assumed by judges, both under the auspices of the CrimPR, and in policy-making in the arena of criminal justice. The chapter shows how, over this period, the senior judiciary became transformed from guardians of individual liberty to architects of state policy.

The Global Diaspora

This chapter focuses on how Rules hatched in England which governed police–citizen relations helped shape the justice apparatus of occupied states and the actions of officials administering them. In restructuring the relationship of criminal suspects and police to the criminal justice system, English judges rolled out defective procedures, which remain part of the fixture and fittings of those jurisdictions still burdened by the colonial inheritance. This chapter will reveal how senior judges, whether sitting in the Privy Council in London or reposing in the highest courts of former colonial outposts, continue as legal missionaries proselytizing the common law and overseeing the implementation of rules, discredited and long-discarded back home.

The First Draft

A variety of policing scandals at all ranks within the police (discussed in Chapter 4) and the gradual realization that investigative practices, particularly by the Criminal Investigations Department, had developed in ways which showed disrespect for individual rights and caused doubts as to the reliability of police evidence with regard to ‘confessions’, made reconsideration of the Judges’ Rules unavoidable. This chapter describes the initial phase in which the judges themselves sought to draw up new Rules against the background of the changing climate of police–citizen relations that the post-war period had inaugurated and the fate that their proposals met. After deliberating for sixteen months, and amid rising public concern over police practices, in 1962 the judges produced a set of proposals designed to meet ‘the public interest’ in regulating the police. These far-sighted proposals were in key respects a mirror of the regime established twenty-five years later by the Police and Criminal Evidence Act 1984 (PACE). This chapter shows how the executive summarily killed off these proposals, prioritizing instead what it saw as ‘the interests of the police’.