Of ends and means

Published : Feb 02, 2002 00:00 IST

The recent acquittal in London of a person convicted of murder in 1974 and jailed for 27 years holds lessons for criminal justice administrators and policy-makers everywhere.

A RECENT Court of Appeals judgment in London acquitting 45-year-old Stephen Downing of a 1974 murder in Derbyshire has rightly earned wide media attention in the United Kingdom, which is now witnessing a major debate on reforms to the criminal justice system. The expediency of continuing with what is considered a much-abused jury system and the introduction of plea bargaining (as in the United States) to cut down on judicial delays, are two subjects that are being prominently discussed. Coming against this backdrop, the Downing judgment not only highlights the intricacies of criminal trials, but also demonstrates abundantly the arduous task of crime investigators all over the world, even as it reaffirms faith in the core of Indian jurisprudence, which runs something like this: "Let hundreds of guilty escape, but no innocent person be hung."

As we share the fundamentals of English jurisprudence, the lessons drawn from the Downing episode cannot be lost on serving police officers in India who are constantly pilloried for their alleged incompetent handling of crime and the questionable methods they sometimes use to solve a crime. The case should also arouse the curiosity of those criminal justice policy-makers in our country who rightly seek a fairer and more transparent system.

Downing (17) was charged with the murder of Mrs. Sewell (32), an office worker in the U.K.'s Forestry Commission, at a Bakewell cemetery where he was working. The lady had received a number of blows on her head from a pickaxe handle. The first report of the incident was from a heavily bloodstained Downing himself, when he called the cemetery attendant, Wilfred Walker, for immediate action. Downing reportedly confessed to the crime during the police interrogation that followed. The police claimed that he had admitted to a sexual assault of the victim. However, a subsequent autopsy did not corroborate this. Downing had, at the time of the said confession, a low IQ and a reading age of only 11. After the jury found him guilty, he was convicted by the Nottingham Crown Court in 1974 for detention at Her Majesty's pleasure, with the Trial Judge recommending a minimum term of 17 years. Downing's appeal against this sentence was dismissed, and he was in prison for 27 years until he was released last year on bail.

Right through the trial and thereafter, contrary to what the police said he had told them, Downing stood by his innocence plea. His parents took up their son's cause relentlessly, and approached several authorities including the Home Secretary and the local MP. With no new evidence coming up, there was no change of fortune for the hapless youth . This was despite a strong local belief that Downing had been framed. Help came from several quarters, including Don Hale, Editor of the Matlock Mercury, who entered the fray 20 years after the alleged murder. (During his investigation, he unearthed at least six witnesses who said that Downing left the cemetery even while the victim was still alive.) The intensity of Hale's campaign, and that of others who were morally convinced that Downing was not the culprit, persuaded the Criminal Cases Review Commission to refer the matter to the Court of Appeal. After the prosecution chose not to oppose Downing's appeal, he was released on bail last year. Following this, he started working for a restaurant in his native Bakewell.

The Derbyshire youth's acquittal was based on the Court of Appeal's finding that his confession to the police was "unreliable". The defence had maintained that when Downing was taken by the police he was given the impression that he was only a witness. The court also found that it was not until eight hours into the interrogation that he was told of his arrest. Another grievous flaw was that he was not informed of his right to a counsel. In the court's view these were "substantial and significant breaches" of the Judges' Rules on interrogation. The conviction of Downing was therefore "unsafe". Significantly, the court made it clear that it had not addressed the question whether or not Downing was guilty.

A factor that possibly persuaded the Court of Appeals to come to its conclusion was the stand of the Counsel for the Crown himself. According to him, "a failure to inform a prisoner in custody of his rights would be regarded as a serious breach, as of course would a failure to caution a suspect at the appropriate moment." What could also have weighed in the court's mind was the fresh testimony of two forensic scientists who did not agree with the prosecution's expert who had deposed in the trial court that there was blood on Downing's clothes only because he had murdered the woman. The prosecution had rejected Downing's explanation that the bloodstains were the result of splattering when he shook her blood-soaked hair. The new forensic theory before the Court of Appeals cast such doubts on the prosecution story that the court found it hazardous to sustain the sentence.

There are demands for a re-investigation of the case so as to apprehend the real culprit. The Derbyshire Police have not given out its mind, although indications are that there is very little new evidence that will warrant a re-opening of the case. No doubt the police will have a number of questions to answer.

I WILL not look upon the judgment as an indictment of the police. This is because the Court of Appeals did not say that Downing did not commit the murder. It merely said that his confession was wrongfully obtained and hence was vitiated and it was unsafe to convict the accused on the basis of such a confession. The slight infirmity in the forensic evidence also worked to Downing's advantage. I take this stand without wanting to give the impression even for a moment that I condone the police violating rules on questioning suspects. My position is the one buttressed by the rulings of courts in India, which, while frowning upon the investigating officer who ignores the laid-down procedure, do not as a matter of course reject any evidence only on the ground that it was obtained unlawfully or illegally.

Unlike in the U.K. and the U.S., crime investigators in India enjoy vast discretion. A police officer in India will normally have to obtain a warrant before searching a premises. But he can do without it, if, in his opinion, moving the Magistrate concerned for the issue of a warrant will result in loss of valuable time, vital to obtaining material evidence. In this eventuality, he will merely have to record reasons, in writing, why he chose not to obtain a warrant (Section 165 of the Code of Criminal Procedure). The position with regard to arresting without a warrant a person suspected of a crime is similar (Section 54 CrPC). But no one aggrieved by such police action can obtain relief by merely proving that the circumstances recorded by a police officer for search or arrest without a warrant did not exist and therefore such search or arrest was illegal. The crucial test is whether facts establishing the charge before a Court are conclusive.

One must view this alongside the protection that citizens enjoy against police arbitrariness. Apart from the provisions in the Constitution against self-incrimination and against detention in police custody for a period beyond 24 hours without the permission of a Magistrate, there is the requirement that an arrested person be informed of the grounds of arrest as soon as he is arrested. Also, Section 25 of the Indian Evidence Act, which stipulates that no confession made to a police officer shall be admissible in evidence, gives ample protection to an accused like Downing.

There are nuances to the apparent difference in procedural law on crime between the U.S. and the U.K. on the one side and India on the other. In the U.S., there is the court-established Miranda Warning, according to which a person taken into custody will have to be clearly told at the time of his arrest that he had a right to remain silent and that anything he said could be used against him. Courts in that country are categorical that any failure to administer such a warning would vitiate all subsequent proceedings. This would mean that illegality during arrest and subsequent custody will not be ignored by courts while examining the veracity of the charges against an accused. In effect, an offender can be discharged even if the facts of the offence committed by him are otherwise established beyond doubt.

The position in the U.K., as revealed by the decision in favour of Downing, is not very different. Under Section 28(3) of the Police and Criminal Evidence Act (PACE) 1984, an arrest is not lawful unless the arrestee is informed of it as soon as practicable. Further, the Code of Practice 'C' issued under PACE clearly stipulates that a caution must be administered to a suspect before he is questioned about an offence. ("You do not have to say anything unless you wish to do so, but it may harm your defence if you do not mention when questioned something you later rely on in Court.") . Code 'E' lays down an elaborate procedure for tape-recording a suspect's statement. Codes - issued by the Home Secretary as directed under PACE - do not strictly speaking enjoy the status of law. They are akin to subordinate or delegated legislation and are admissible in evidence. (The Indian equivalent are Police Standing Orders or Police Manuals issued by the respective State Home Departments.) There are five Codes issued in the U.K. till now for the guidance of the police in their day-to-day routine.

FINALLY, readers in India may be curious to know more about the Criminal Cases Review Commission (CCRC) that played a significant role in the Downing case. This body was created in April 1997 after overturning the earlier system where the Home Secretary alone was competent to look into cases of alleged miscarriage of justice and refer a case for fresh examination by the Court of Appeals. According to The Daily Telegraph, the latter system had allegedly carried a certain political bias in choosing cases that needed a fresh look. The Birmingham-based CCRC is described as an independent body. It was an outcome of the Royal Commission Report (1993) on the criminal justice system. With about 50 staff members, admission entertains applications of those who allege injustice, provided they have already gone through one appeal and have either new evidence or a legal argument that had not been considered by the two earlier courts. According to The Daily Telegraph again, the Commission has examined more than 3,800 cases since its inception and referred 154 of them to the Court of Appeal. Convictions in 56 of the 82 cases so far heard have been quashed.

The 70 per cent reversal of lower court judgments following the initiative taken by the CCRC could make us sit up and ask whether we need a similar institution in India. I can visualise many police officers screaming because conviction rates in India are already very low because of many avoidable but very often bona fide mistakes during investigation. Also, what will be the impact of such a Commission on the overall crime situation? What message will we be sending to those who contemplate crime but are marginally deterred by the existing conviction and sentencing system? These are thoughts which I leave with my reader for another day.

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