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Magical Legalism. The Collusion of the Crown Prosecution service in Major Miscarriages of Justice. The Code for Crown Prosecutors. Para 2.3
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Magical Legalism The Collusion of the Crown Prosecution service in Major Miscarriages of Justice
The Code for Crown Prosecutors • Para 2.3 • It is the duty of Crown Prosecutors to make sure that the right person is prosecuted for the right offence. In so doing Crown Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction • Para 5.3 • A realistic prospect of conviction is an objective test. It means that a jury or bench of magistrates or judge hearing the case alone, properly directed and in accordance with the law, is more like than not to convict the defendant of the charge alleged
Magical legalism • “Magical legalism is a method to ‘prove’ that an allegation could not possibly be correct because the action is illegal....torture is strictly forbidden in our country; we have ratified the Convention Against Torture; therefore what we are doing cannot be torture. Many such legal moves are wonderfully plausible as long as common sense is suspended” (Cohen 2001: 108) The Magical Legalism of the Criminal Justice System is this: - “As long as the test that the powers that be have deemed appropriate is applied in some form, then we can be confident that all is just and well”.
The CPS and the Sally Clark Case • Case effectively began when Dr Williams discovered retinal haemorrhages in the eyes of Harry (Sally’s second baby). • After consulting with Professor Green, Dr Williams decided both babies died of shaking (reversing previous natural causes explanations of the first baby Christopher’s death). • Just before the trial in 1999 Professor Green realises the error in consultation with Professor Luthert – There are no haemorrhages in Harry’s eyes. • After nearly 2 years the prosecution change their case from shaking to smothering after discussions over the weekend – Sally’s solicitor says “it happens all the time, the prosecution changing the basis on which the case was constructed at the last minute” (Batt 2005: 140) – Sally convicted at trial in November 1999. • CPS successfully opposes first appeal in 2000 despite undermining of Professor Meadow’s 1in 73 million statistic. • CPS opposes second appeal despite clear evidence of “overwhelming staphylococcal infection” and Dr Williams failure to disclose this, and fifteen expert reports presented by the defence. Sally wins appeal, after prosecution expert Dr Klein concedes.
The CPS and Sion Jenkins • Evidential weakness from the outset alternative suspect, blood evidence and police influence on witnesses. • Opposing two appeals and three trials in face of new evidence including (from second appeal and two trials that followed) new evidence: - • -from daughters, • -on Mr B’s locations psychiatric condition, • -on blood spray including pulmonary interstitial emphysema.
The CPS and Barry George • Using flawed ID evidence throughout 2 trials and two appeals. Only one of 5 witnesses who saw a man in the street picked out Mr George. She made this identification seventeen months later based on a glimpse of 5-6 seconds of a man under an umbrella in the rain, wiping the windscreen of a car (Mr George did not own a car). This observation allegedly occurred four and a half hours before the murder. The CPS were prepared to use this person to give confident evidence. As in the case of the manipulation of witnesses in the Sion Jenkins case – magical legalism overrode research evidence and evident reasoning • Ignoring capacity of defendant to commit crime. • Misleading associations e.g. Obsession with Jill Dando. • Pursuing re-trial despite undermining of key firearm residue evidence at appeal
Character not Evidence • Barry George – fallback “Oddball” • Colin Stagg – Classic entrapment – Honey Trap: “If your not that man (who killed Rachael) you’ll never ever be able to fulfil me” Colin: “ I’m sorry, but I’m not” (BBC Crimewatch 18/12/08) • Sally Clark – Career woman who killed her baby because he was ‘messy and disruptive’. • Sion Jenkins – “Sometimes the reasons are complex, the reasons may be locked away deep in the personality of the killer......It all goes to demonstrate how this case is nothing to do with blood spots, lungs or air pressure at all” (Nicholas Hilliard prosecution QC closing speech at second trial as reported in Hastings observer website 17/1/06)
No Apology – No Responsibility “I believe in this case we have fulfilled our role as we should have done......The decisions were the correct ones”....the important role of the CPS is to “weed out cases that are fanciful” Sarah-Jane Gallagher (Chief Crown Prosecutor for Sussex) speaking after the acquittal of Sion jenkins following his third trial – (Channel Four News 9/2/06) Mr George now has the right to be regarded as an innocent man, but that does not mean it was wrong to bring the case. Our test is always whether there is sufficient evidence for a realistic prospect of conviction” Hilary Bradbury (CPS) quoted by Duncan Campbell in The Guardian 2/8/08 after the acquittal of Barry George after re-trial. ‘Magical Legalism’ applies -The CPS Test is technically defendable in itself not in the quality of its application. The bureaucratic logic conveniently disengages the moral imperative
For Magical Legalism read Doublethink • Sally Clark’s husband’s complaint against the prosecution was struck out by Mr Justice MacKinnon, who found that, “with regard to the standard of proof that is required for a charge of Professional Misconduct, there was no real prospect of success” (Batt 2005: 476) • “The best functionaries are those who honour their obligation to authorities but feel no personal responsibility for the harm they cause”. (Bandura 1999: 198) • “What was once morally condemnable becomes a source of self valuation”. (Bandura 1999: 196) “The key word here is Blackwhite. Like so many Newspeak words, this word has two mutually contradictory meanings. Applied to an opponent, it means the habit of impudently claiming that black is white, in contradiction to the plain facts. Applied to a Party member, it means a loyal willingness to say that black is white when Party discipline demands this. But it means also the ability to believe that black is white, and more, to know that black is white, and to forget that one has ever believed the contrary” George Orwell “Nineteen Eighty-Four” (1948: 221)
