DPP pledges to give media greater access to evidence

By Jon Slattery

Director of public prosecutions Ken Macdonald has described the
relationship between the criminal justice system and the press as
“completely dysfunctional”.

Macdonald said: “I think there are faults on both sides, but I think
quite a lot of the faults lie with the criminal justice agency, whose
churlish and sometimes less than understanding attitude to the press
has led to a press that responds, sometimes, in kind.”

Speaking
at the annual lunch of the NPF, The Journalists’ Charity, Macdonald
made it clear that he was seeking to change the culture of the Crown
Prosecution Service.

“We are presently in negotiations with the
press to set up a protocol which will govern the way in which we
disclose material to the press. I have insisted that the guiding
principle of this protocol should be a presumption in favour of
disclosure unless there is a very good reason why information should
not be disclosed.

“Sometimes there are sensitivities around
victims, witness, families and murder victims and there is certain
material we would not want to disclose.

We might not want to disclose a photograph of a bloody blouse of a woman who had been stabbed to death in a park.

“But the broad mass of material of criminal proceedings ought to be in the public domain.”

The
director also said he was not a believer in prior restraint: “I think
the Americans have it right. Effectively you publish and be damned.

“I
have never been a believer in gagging writs. I think they are something
of an abomination. I think people should be entitled to take the risk
of getting things wrong.”

Macdonald claimed that in criminal
justice there were wider issues at stake because if the press got
things wrong it could interfere with the fairness of criminal
proceedings, leading to the aborting of a trial or a miscarriage of
justice.

But he added: “I think the fear in this area of criminal justice is exaggerated.

In
the US they trust jurors to try cases according to the evidence. Every
juror takes an oath to try the case on the evidence and nothing else.

“They
are always directed by judges to put out of their minds anything they
have read, heard, listened to or seen outside the courtroom.

“We really have to trust jurors to do that. If we don’t we are going to have to abolish the jury system.

“It
seems to me that a fear that pretrial publicity will ultimately make it
impossible to conduct a trial is really an attack, not on the trial,
but the jury system.

“What it is saying is not that there
shouldn’t be a trial, but there shouldn’t be a trial in front of a jury
because jurors cannot be trusted.

“I don’t think that’s an argument that works anymore in the modern world.

Any
juror, in any case anywhere in the country, can go home on the first
night of the trial and type the defendant’s name into Google.

“If
you believe juries cannot try cases fairly, if they are in possession
of information about defendants which exists outside the trial process,
then we will have to abolish jury trial because we are moving now into
a world where information is freely available to everybody.”

MACDONALD ON:

Past relations with the press:

“The CPS has had an utterly dysfunctional relationship with the press.

“This story might be apocryphal, but it sums up the truth about the
prosecution authority. It is said that when it was set up it was
ex-directory.”

The future:

“I want us to communicate in the most open way with the press.

“I don’t agree at all that you should have kept from you the subject matter of criminal trials.

“People
are entitled to know what has happened in criminal trials. They are
entitled to know what the evidence presented in court was. They are
entitled to know how the police go about their work and entitled to
know how we make our decisions.”

Anti-terrorism laws:

“We do not protect ourselves against terrorism, which is trying to
take openness and liberalism away from us, by becoming closed and
difficult.

“It is very interesting that some newspapers which have
traditionally been seen as being on the authoritarian side or the right
are making that case as well.

“I think we are at a very dangerous point where we could make reforms which we could live to regret.

“I
think it is most important that we remember what it is we are trying to
protect from terrorism and don’t sacrifice that in the battle. There is
a great danger that in 10 years time, without any bombs going off in
London, we could wake up and come to the conclusion we have lost the
war after all, without a shot being fired.”

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