One refrain which has consistently been heard from Michael Howard and the police is that the Bridgewater Four injustice could not happen today. But have times changed since the bad old days of the 1970s?
Much has been written about the special problems of policing in the 1970s and early 1980s, what with the IRA to deal with on the one hand and a particular culture that had developed in the West Midlands Serious Crime Squad on the other. But exposure of police corruption and violence even then were nothing new. In the late 1960s and early 1970s a major investigation into the London drugs and vice squads resulted in the prosecutions of a number of police officers. In 1972 Robert Mark was appointed Metropolitan Police Commissioner and professed himself determined to pluck the rotten apples from the barrel.
But the police's reputation had been seriously damaged and this set in motion procedural changes to the process of police investigation itself, which culminated in the much vaunted Police and Criminal Evidence Act 1984 (PACE). This introduced a completely new set of rules for the treatment and interviewing of suspects.
One of the principal aims of PACE was to stamp out 'verballing', the concoction of confessions, usually in the form of throwaway remarks alleged to have been made in the back of a police car, but sometimes involving the wholesale fabrication of interviews and confessions. The centrepieces were the introduction of mandatory tape recording of interviews and greatly improved access to legal advice. Despite also being given increased powers of stop and search in the act, the police, particularly CID officers, hated PACE. No longer, they moaned, would the usual suspects divulge all those invaluable titbits of information, which were so crucial to good police work. The villains were shutting up and demanding their lawyers. The problem was that verballing was an absolutely central part of the police investigation, which was based on the cops themselves deciding who was guilty and then providing the evidence to fit it. The Bridgewater case is an absolute classic of the pre-PACE ethos.
At the same time as PACE there was some shifting of position among the judiciary. With very few exceptions British judges have traditionally been pure products of the establishment, treating hapless defendants like pheasants to be potted and the law as a form of gentlemanly sport.
Meanwhile the police were going onto the offensive in a campaign to reverse the setback of PACE. Their old ally, Lord Lane, used a court judgement in 1988 to pronounce that the time may have come for the right to silence to be abolished. What blew them off course were the big miscarriage of justice cases the Birmingham Six, Guildford Four and Judith Ward swept aside demands for the end of the right to silence under a welter of concern that the system was completely unable to protect the vulnerable suspect.
Central to all of these cases was concealment by the prosecution of vital evidence which assisted the defence. Now, it was said, in principle all material which might conceivably help a defendant should be disclosed. The police were horrified and mounted a sustained campaign to limit and reverse the obligation for them to open the books.
It wasn't just a reluctance to allow defence lawyers to scrutinise the mechanics of investigation that lay behind the resistance to disclosure. New methods of investigation had to be found to compensate for the shortcut of verballing. Increasingly it was and is the case that undercover police officers posing as, for example, buyers of drugs or stolen property would be used. In particular, participating informers are now commonly deployed. This creates a completely new situation in which not only do informers provide information for money, they also instigate crime. Entrapment is no defence in English law and in a number of recent cases the courts have in general approved the use of such evidence. The situation which has now been created is even more ripe for corruption than that in the heyday of the verbal. But it cannot work effectively if the police have to disclose the existence and involvement of these people.
In the meantime, once the dust had settled over the big miscarriage of justice cases of the early 1990s, the right to silence was duly abolished. It is absolutely certain that this will lead directly to wrongful convictions. New disclosure rules come into effect this month. Crucial to the introduction of these measures, which were widely opposed by the legal profession, has been the Labour Party's craven attitude to any issue of crime and punishment. The climate which has now been created is truly frightening. Mandatory life sentences for third time drug dealing and sex offenders and the abolition of parole will, if enacted, create a regime of quite unparalleled brutality. This is directly attributable to the complete abdication of responsibility by Labour to put across the simple points, that crime is not prevented by increasing the use of prison and that the police cannot be trusted to operate impartially.
The rules may have changed to some extent since the time when the Bridgewater Four were convicted, but the whole apparatus of law and order remains the same. In many ways the regime today is far more authoritarian than it was in the 1970s. Spending on the structures of repression, particularly the prison system, has increased in direct proportion to the cuts in social welfare provision. Cuts in legal aid make it increasingly difficult for lawyers such as Jim Nichol , whose enormous effort was so important to securing the release of the Bridgewater Three, to stay in business. It's not just that people will continue to be wrongly convicted, it is also that people will go to jail who should never be there, because you simply cannot have justice in a society based on economic injustice.
A new edition of Paul Foot's book on the Bridgewater case, Murder at the Farm (Hodder Headline £6.99), is now available.