Are Law Courts Biased against Defendents?

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Lecture date: Sat, 10th Sep, 2016
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The first time I visited a Magistrates Court, it was 1954, shortly after I moved to London. A friend who could not be at court, because he would be at work, asked me to observe the trial of a girl he knew. She was accused of standing in the street, inviting men into a ‘clip joint’, described on the charge sheet as a ‘near beer club’, an establishment which looked from the outside like a place where men could buy alcohol and meet girls, but was in fact a place where men were invited by hostesses to buy drinks (of non-alcoholic near beer), for a ridiculously exorbitant price.

Women’s ordinary street dress at the time had a skirt which came down to about four inches below the knee, but the lady on trial was an eccentric who wore a long skirt, which came right down over her feet. When she was arrested outside the clip joint, she was not wearing a long skirt but was dressed as a can-can dancer, in a bright red dress with fancy stockings. Prosecution witnesses were two plain clothes policemen, corroborating each other’s testimony. The first policeman said she was wearing a form of fancy dress, which the defence solicitor lifted up so that the magistrate could see it was short but not indecent. The second police witness corroborated the story that she was wearing a form of fancy dress, but when he was asked to describe it, he said it had a long skirt which came right down over her feet. The solicitor held up the red dress and said ‘Nothing like this, then?’ The magistrate said ‘Case dismissed. I think
there’s some doubt’.

He did not say ‘The policeman called to corroborate the story was obviously lying, and the first policeman must have instructed him in what to say. Court Inspector, please arrest both of them and charge them with perjury’. Of course he didn’t. The woman they had failed to convict was a clip-joint swindler working in Soho, the entertainment centre of London, where many of the entertainments on offer were illegal (including some which have since become legal: gay clubs, pornography, and cash-in-advance gambling). In the early evenings there were groups of swarthy men hanging about on street corners, waiters from the posh restaurants waiting to meet bookies’ runners. Before the Street Offences Act of 1959, the streets were lined with prostitutes. And all the illegal and barely legal establishments were preyed upon by protection rackets and thieves. Police enhanced the evidence, because otherwise, their job would have been impossible.

The fact remains, however, that if the police had told the same story about the girl’s fancy dress, she would have been convicted, guilty or not.

Away from Soho, and in more recent times, a woman I know was accused of passing a traffic light at red. The policeman who charged her said he could not remember how long he had been on duty. She remembered saying ‘This is the first time this has happened to me’, the policeman remembered her saying ‘This is the first time I done this’. Prompted by the Clerk of the Court, she pointed out that, being grammar-school educated, she would not have said ‘I done’ meaning ‘I have done’, and was acquitted. She would have been convicted if only the officer had learned to talk proper.

The cases I quote are those which result in acquittal. We only hear in private of those who were not guilty but were found guilty despite their denials, or pleaded guilty because they are advised that have no chance of acquittal, and should therefore plead guilty in the hope of a more lenient sentence. By the letter of the law, defendants are deemed innocent unless they are proved guilty, but if that were really so, people who say they are not guilty would be told ‘In that case goodbye, and we’re sorry you’ve been troubled’. In real life, however, a
defendant who is not guilty has to prove it. I dare say most magistrates, judges, juries, court clerks and police officers try not to prejudge cases, but a defendant is automatically at a disadvantage, because she is a stranger in court, while the judge sees the prosecuting officers every day, and gets into the habit of trusting their testimony.

In countries where policing is by consent, police statements are routinely taken as true. In the first criminal case to use DNA ingerprinting in 1978, the inventor was asked by the police for help in showing that a man, who had confessed to one rape and murder, was also responsible for another rape and murder, which he denied. DNA tests showed that both rapes had been committed by the same
man, but he was not the man in custody. So why did he confess to a rape he had not done? Or a better question, how do we know he confessed? Answer, the police told us he confessed.

I turn now to a celebrated case of 1962. The proprietor of two striptease theatres in Soho was menaced by a gang of protection racketeers, and rescued by local police. Headlines in the London Evening Standard read ‘Woe betide anyone else, judge warns Soho racketeers’, and ‘Sergeant Harry topples “King” Oliva’. ‘Sergeant Harry’ was Detective Sergeant Harry Challenor, leader of ‘a dozen detectives’. Joe ‘King’ Oliva was a known protection racketeer, convicted several times of threatening to smash the property and persons of people who did not pay up. He usually worked alone, preying on businesses of doubtful legality, and evidently regarding the fines
he paid as business expenses. But on this occasion he came with a gang, and was convicted of conspiracy. As the law stood at that time, conspiracy to do something was a worse crime than actually doing something. He was sentenced to six years in prison.

That case came to the attention of the National Council for Civil Liberties (now known as Liberty), amid doubts that Oliva’s gang actually existed. One member of the alleged gang, Ricardo Pedrini, worked as a waiter at a café owned by his parents, where Mary Clark, a worker at the NCCL office, was a regular customer; she thought he was innocent, and so did some of his fellow prisoners at Wormwood Scrubs, who mentioned him to their solicitors.

In August 1963, six months after he put King Oliva’s gang away, D/S Challoner was in another celebrated case. On July 10 1963, a crowd of demonstrators booed the Queen, and monarchists were annoyed. Next day, July 11, Challoner and three of his aides set out to discredit the noisy but peaceful demonstration, by planting evidence that it was violent. They arrested eight people, four demonstrators
and four people who were not demonstrators but happened to be in the area, and charged each of them with carrying a piece of broken brick, for use as a missile. Three cases were adjourned to Juvenile Courts. Four adults were convicted, and sent off with criminal records for carrying offensive weapons. One was acquitted, because Sergeant Challoner made a mistake.

I have told the story of my encounter with Mr Challoner several times*, and will not reiterate it here. But what judges and police have written about the Challoner case may throw some light on the question we are discussing, whether courts are biased against defendants.
Mr A.E. James, the Recorder of Grimsby (afterwards appointed a Judge of the Appeal Court) was appointed to conduct a Public Inquiry ‘into the circumstances in which it was possible for [Challenor] to continue on duty’ when he was mentally ill. There is no doubt of his mental illness. On August 22, two weeks after it was proved that he had presented false evidence, his Chief Inspector ‘found a marked
deterioration in his powers of concentration’. But he was still on duty at 1.30am on September 5, when he arrested three young men in Clapham, without being able to say why. He was certified unfit for duty on September 6, and in October his behaviour at a dinner ‘led to arrangements being made for Detective Sergeant Challoner’s immediate admission to hospital’.

The easiest explanation of his breakdown is cognitive dissonance: he was unable to reconcile his concept of himself as a smart operator, with the knowledge that he had been brought down by a silly mistake. The hospital psychiatrist, Dr Sargant, wrote in October ‘I am certain the Harold Challoner is very mad indeed’, but thought the onset of his madness was recent. As he told the Inquiry ‘I have got no
evidence at all that this paranoid schizophrenia started before May to June of 1963’. For his own ‘finding’ about the time at which  Challoner went mad, the Mr James refers the reader of Chapter 1 of his Report to Part Two, and the reader of Part Two to Chapter 1, but does not come to a conclusion. He quotes Mr Justice Lawson, ‘it seems likely that he had been unbalanced for some time’, and takes this
to mean that Challenor was mad when he planted the bricks.

One of the ‘brick case’ victims, Lucky Apostolou, told the Inquiry that he had been taken to a room where Challoner and his three CID Aids were standing with two other boys and two bits of brick on a table. He said ‘I didn’t know they had bricks on ‘em’, and Challoner said ‘The biggest brick for the biggest boy’, and put another brick on the table. Note the similarity to the case of King Oliva’s gang, where it was alleged that Challoner produced an iron bar and told Pedrini ‘That’s yours’, then a knife and told another alleged gangster ‘This is for you’, then another knife which he put back in his pocket when a police inspector came into the room. Mr James’s finding
was that these allegations were untrue, but how does he account for the allegations in the brick case? He does not mention them: ‘The terms of reference of the Inquiry did not necessitate any findings … I have therefore studiously avoided making any findings’.

Some twenty-six cases were either dropped, or those convicted ‘given free pardons’ after courts ruled that Challoner’s testimony was unacceptable. But the Report of Inquiry assumes that all statements by police officers, including those by Challoner, are true, except in the few cases where police officers contradict each other.

I have read two books by former police officers, both of whom wrote of Challoner with approval, and neither of whom strongly isapproved of his evidence faking. Mike Seabrook, who served at the same station as Challoner but not at the same time, writes in Coppers: An inside view of the British police (1987), ‘I speak for the majority of policemen, I believe, in feeling that where the Krays concerned the gloves must come off … So if you can’t take them by fair methods you take them by foul and everybody else cheers you on … Indeed, all the accounts I heard of [Challenor] from those who remembered him were told with intense admiration and approval. I shared both.’

The Kray brothers were notorious criminals who lived and conducted their business in the East End, far from Challoner’s beat in Soho. There is no actual evidence that he ever met the Krays, or even that they had heard of him, but a doubtful story is circulated that they were at dinner in a West End restaurant, and fled when they heard Challoner was in the vicinity. The same doubtful story is told in Dick Kirby’s The Scourge of Soho (2013), which also has photographs of the Kray twins on the cover.

Kirby, who served twenty-six years in the Metropolitan Police, writes ‘I encountered a number of stories about Challenor’s conduct which I decided not to include, firstly because they could not be authenticated, and secondly because it was highly likely that they were the result of “Chinese whispers”’. However, he decided to include the unauthenticable story that the Krays were scared of Challoner. Perhaps the stories which he did not include are those which present Challoner as less than heroic. For Challoner was not the only policeman said to have planted evidence; there was also a false rumour about Dick Kirby himself. ‘Over forty years ago, a story was circulated about me, to the effect that … the senior judge Peter Mason QC, MC sent for me, showed me a flick knife and said “Now look here, Mr Kirby; this is the third time this week I’ve seen this flick-knife in three separate cases and it’s got to stop! Still, keep up the good work and come and have a glass of sherry”’.

Kirby’s view may be summarised as ‘Whenever police fake evidence, they do so for good reasons; but they never do so’. His book is highly critical of anyone who doubts the good will of police (except those convicted of accepting bribes). A plea by the MP Tom Driberg, for Challoner as a mental patient to be treated sympathetically, is described as ‘surprising’ in view of Driberg’s ‘trenchant anti-police views’.
The NCCL, who defended the public against the worst excesses of government coercion, are seen as allies of the perpetrators of unlawful coercion. So am I, whose transgression was to save my own skin: ‘At Challenor’s removal from the West End, the gangsters, thugs, pimps, and strong-arm men of Soho could scarcely believe their good fortune. Although they had been prepared to [spend] £1,000 (£16,000 by today’s standards) to rid themselves of the pestilential Challenor, a skinny little anarchist, who was unknown to them, had done it for them free of charge’.
Later, when I was a college lecturer, the then Chairman of the Magistrates Association came to talk to the students about the difficulties of a magistrate’s job. He knew in advance about my case, and before I started to ask a question told me that it was very unusual. I would have agreed that it was very unusual for an experienced Detective Sergeant to make a mistake in planting evidence, but I did not say
so because, of course, that was not what he intended. He meant to say that it is unusual for politically motivated police to bring false prosecutions against their political opponents. No disagreement there. But the fact remains, when the police bring a false prosecution,
the victim has no chance of acquittal, except the chance that the police may make a mistake in planting the evidence.

Thinking on Sunday

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Donald Rooum

Donald Rooum says that he first became interested in anarchism in 1944 when he visited Speaker’s Corner in London while on a Ministry of Food scheme which used schoolboys to pick hops in Kent. He subscribed to War Commentary, thus beginning a connection with Freedom Press which has continued for over sixty years. During that time he has…