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14 Nov 2009

The criminal justice system

In an interview published in Criminal Law and Justice Weekly, Robert Brown , partner, Corker Binning, shares his views on aspects of the criminal justice system.

Robert Brown

Veronica Cowan spent 10 minutes talking to Robert Brown, a partner with law firm Corker Binning, who is ranked as a leader in the field of crime by Chambers 2009

Robert Brown, criminal litigator and advocate, studied law at Fitzwilliam College, Cambridge, and qualified as a solicitor in 1983. Between 2000 and 2002, he was a director of a team of international jurists advising the Russian government on amendments to the Federal Constitution of 1993. He is a past president of the London Criminal Courts Solicitors’ Association, and co-designed and co-authored the first edition of Archbold Magistrates’ Courts Practice, and contributed chapters on disclosure, sexual, drug, and violent offences, and mentally disordered offenders. He occupies the criminal law seat on the Council of The Law Society, and is a member of the Council of the British Association of Forensic Science. He is a member of The Times Online Law Panel, and broadcasts and writes on criminal law. He has defended in many types of criminal cases, from road traffic cases for high profile individuals to homicide and large-scale conspiracies. His recent cases include representing a solicitor in a major money laundering conspiracy and challenging, by judicial review, the Financial Service Authority’s power to prosecute.

Q. Miscarriages of justice have been in the news again recently, with the publication of The Death of Justice, by Michael O’Brien, who, along with Ellis Sherwood and Darren Hall, were jailed for the murder of Cardiff newsagent, Philip Saunders, more than 20 years ago. The convictions, which were later set aside, were mainly on the basis of false confessions by Hall, who later recanted. How much has changed since the 1970s?

Police officers used to write everything down, and sometimes make it up, but we now have the Police and Criminal Evidence Act, which provides specific rules on the admissibility of evidence, and helps prevent false confessions.
It also created the role of custody officer, usually a police sergeant, who will apply the provisions of the PACE Code of
Practice, in respect of the conditions of detention. Custody officers protect vulnerable individuals, and an “appropriate
adult” also plays a part in the custody environment. Miscarriages will still happen if the police break rules, but you can’t totally prevent that.

Q. What other factors influence outcomes in the criminal justice system?

The practice of psychology is now more accepted as a science by the courts, and people are tested for psychological ability before confessions. The creation of the Crown Prosecution Service has also helped, and the decision to charge is now made by the CPS. DNA evidence has made a great difference, and a recent example is the Sean Hodgson case. He spent 27 years in jail for the murder of Teresa De Simone, before his conviction was quashed this year when DNA proved it was someone else.

Q. How about resources to investigate and present a case on appeal?

There is no legal aid beyond the end of a case, and it is only available if counsel advises that there are grounds for appeal, or it is granted by the court

Q. The Criminal Cases Review Commission was set up in 1997 as the body responsible for reviewing suspected miscarriages of justice in England, Wales and Northern Ireland. How instrumental has it been in exposing failures in the criminal justice system?

I am sure it has made quite a difference. It has the resources which were lacking before, and at least now there is a publicly-funded body, complete with specialist staff to investigate such cases.

Q. Once it has completed an investigation into a case, it can refer it back to the appropriate appeal court for re-consideration, which then decides whether the conviction is unsafe or the sentence unfair. Figures for last year show that the Commission referred four per cent of completed cases to the appeal courts, which was only slightly
higher than its long term average of 3.8 per cent although significantly (its description) above the 2.5 per centreferral rate in 2007/8. Do you think the 11 commissioners are too cautious in making referrals?

I simply don’t know enough about how they deal with the cases to be able to answer that. I haven’t taken many cases to
it, so am not qualified to comment.

Q. How about its handling times, then? Richard Foster, the Commission’s chairman, stated in the 2008/09 report that performance has improved dramatically. For instance, he says that in 2005, an applicant in custody, whose case was
complex, would have had to wait 20 months for a review to begin, whereas today that time is 20 weeks.
Some cases can take a very long time to be investigated, but all things being equal, that certainly sounds like a huge

Q. Have you been involved in any prominent cases?

Not recently, although I have over the years. Between 1998 and 2000, I advised Captain Alexander Nikitin, a dissident former Russian navy officer, on his application to the European Court of Human Rights on charges of espionage and high treason, of which he was eventually acquitted. He leaked technical material, on radiation risks posed by abandoned Russian nuclear submarines in the Arctic, to the Norwegian environmentalist group Bellona. Both he and the pressure group argued that the information was collated from open sources, and it was only after the charges were filed that the source documents were claimed to contain state secrets. I was instructed by the Norwegian lawyers because they and Russian lawyers did not have much experience of the European Court.

Q. Is that how you got involved with other Russian work?
Yes, it was really, and I have since advised Russian individuals and companies on mutual assistance and extradition, although my Russian is not good.

Q. What do you do in your spare time?
I like to go to the theatre, and also enjoy music and sport, and even run the occasional marathon.

Note to readers:

Past president of the London Criminal Courts Solicitors’ Association, a member of the Academic Review Board of the
Open University Law Programme and a committee member of the Criminal Law Solicitors’ Association. He was elected to the specialist Criminal Defence seat on the Council of the Law Society in August 2005. He is also a committee member of the British Russian Law Association.