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From adversarialism to managerialism: criminal justice in transition

Published online by Cambridge University Press:  02 January 2018

Jenny McEwan
Jenny McEwan*
Affiliation:
Exeter University
*
*[email protected]
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Abstract

The criminal justice system of England and Wales has been subject to a series of essentially ad hoc reforms that depart to a significant degree from its adversarial heritage and represent a threat to fair trial rights under Art 6 of the European Convention on Human Rights. Far from moving closer to the European ‘inquisitorial’ model, as has been suggested by some commentators, criminal procedure is becoming increasingly dominated by managerialist concerns. Intolerance to litigant control is motivated by the desire to increase efficiency and reduce cost, although the replacement of party autonomy in terms of control over the conduct of the case by state power over process corresponds to some degree to the descriptions, in the work of Mirjan Damaška, of the system favoured by ‘activist’ states. However, the financial crisis facing the new government means that the situation is unlikely to be alleviated should the extent of government activity be reduced.

Type
Research Article
Information
Legal Studies , Volume 31 , Issue 4 , December 2011 , pp. 519 - 546
Copyright
Copyright © Society of Legal Scholars 2011

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Footnotes

*

I am extremely grateful both to Professor John Jackson for his generous help with a draft of this paper, and to the anonymous reviewers who also made constructive comments. Responsibility for its shortcomings is mine alone.

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31 Damaška, above n 3.

32 I am indebted to Professor Jackson for the point. See J Jackson Autonomy and Accuracy in the Development of Fair Trial Rights University College Dublin Working Papers in Law, Criminology and Socio-Legal Studies Res Paper No 09/2009, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1407968; also Summers, above n 1.

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44 Harris v Tippett (1811) 2 Camp 637. There are exceptions to the rule.

45 Where a plea of guilty is entered only at the last minute before the trial is due to commence, disrupting court lists as other trials have to be brought forward.

46 Sir R Auld Review of the Criminal Courts of England and Wales: Report (London: TSO, 2001) pp 481–487, available at http://www.criminal-courts-review.org.uk/ccr-00.htm; Lord Chancellor and Attorney-General Secretary of State for Home Department Justice for All Cm 5563, 2002; in Scotland, Lord Bonomy Improving Practice: The 2002 Review of the Practices and Procedures of the High Court of Justiciary (Edinburgh: Scottish Executive, 2002), available at http://www.scotland.gov.uk/Publications/2002/12/15847/14122.

47 Jisl[2004] EWCA Crim 696; [2004] All ER (D) 31 (April) 114 at [114] per Judge LJ: cf Chaaban[2003] EWCA Crim. 1012; [2003] All ER (D) 355.

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51 Established Courts Act 2003, s 72(1). The principles were first developed in decisions such as Chaaban, above n 47 and Jisl above n 47; See Denyer, Rl ‘the changing role of the judge in the criminal process’ (2010) 14 E & P 96 Google Scholar.

52 The Criminal Procedure Rules 2005, SI 2005/384; the 2005 Rules are replaced by the (chiefly consolidating) Criminal Procedure Rules 2010, SI 2010/60.

53 Auld, above n 46.

54 Including the Law Society, the General Council of the Bar and the Criminal Bar Association: The Courts Bill [HL] House of Commons Library, Research Paper 03/52 (2003).

55 Eg J Spencer ‘The case for a code of criminal procedure’[2000] Crim LR 519; Home Office Criminal Justice: the Way Ahead Cm 5074, 2001 and the White Paper Justice for All, above n 46.

56 Hansard HL Deb, vol 644, col 645, 1 Feb 2003.

57 Lord Woolf CJ writing in The Times 8 April 2005.

58 R (on the application of the DPP ) v Chorley Justices[2006] EWHC 1795 per Thomas LJ at [25].

59 Criminal Procedure and Investigations Act 1996, s 6, as amended by Criminal Justice Act 2003, s 33 and Criminal Justice and Immigration Act 2008, s 60. Magistrates also are now required to ensure defence cooperation: Protocol on Criminal Case Management in the Magistrates' Court, available at http://www.justice.gov.uk/criminal/procrules_fin/contents/index/docs/magistrates-court-trial-preparation-form-notes-for-guidance-august-2010.pdf.

60 Writtle v DPP[2009] EWHC 236; R v Bryant[2005] EWCA Crim 2079; RL Denyer ‘The defence statement’[2009] Crim LR 340.

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62 Criminal Procedure and Investigations Act 1996, s 11.

63 Unless disclosure was ‘very very late indeed’: Denyer, above n 60, at 343.

64 In S and L[2009] EWCA Crim 85: comment, Ormerod, R v S and L[2009] Crim LR 723 at 724–726. Contrast Tinnion v Reading Crown Court[2009] EWHC (Admin) 2930 where it was held that the appropriate recourse where an alibi notice has not been served is to make adverse comment and allow adverse inferences to be drawn, rather than deny the accused the defence.

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67 CrimPR r 3.2(1).

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69 CrimPR r 3.2(2).

70 Where a plea of guilty is entered only at the last minute before the trial is due to commence, throwing lists into chaos, as other trials have to be brought forward. Lord Judge CJ, above n 11.

71 K and Others[2006] EWCA Crim 835.

72 Lee[2007] EWCA Crim 764 at [28] per Thomas LJ.

73 Ibid.

74 In parallel developments, Department of Justice of Canada Guiding Principles for Effective Case Management (2009), available at http://canada.justice.gc.ca/eng/esc-cde/eff/p2.html; Langer, M ‘the rise of managerial judging in international criminal law’ (2005) Am J Comp L 835 Google Scholar. But see Judge LJ, Evidence to the Select Committee on Constitutional Affairs, 22 June 2004.

75 CrimPR r 1.2(1)(a).

76 CrimPR r 3. 4(1)(a).

77 CrimPR r 1.2(1)(b).

78 CrimPR r 1.2(1)(c): the duty to ‘grass up’.

79 Gleeson[2003] EWCA Crim 3357; R (on the application of the DPP) v Chorley Justices[2006] EWHC 1795 at [26]. L v DPP[2009] EWHC 238. Hughes v DPP[2003] EWHC 2470; Khatibi v DPP[2004] EWHC (Admin) 83.

80 JL v DPP[2009] EWHC 238; Malcolm v DPP[2007] EWHC 363.

81 CrimPR r 1.1(1).

82 CrimPR r 1.1(2)(e).

83 CrimPR r 1.1(2)(a).

84 CrimPR r 1.1(2)(c).

85 CrimPR r 1.1(2)(g).

86 Ibid.

87 CrimPR r 1.1(2)(g).

88 CrimPR r 1.1(2)(d).

89 Lord Phillips CJ The Objectives and Content of the First Criminal Procedure Rules March 2005, available at http://www.justice.gov.uk/criminal/procrules_fin/contents/frontmatter/foreword.htm.

90 Gleeson, above n 79.

91 D Mellinkoff The Conscience of a Lawyer (St Paul MN: Thompson West, 1973) p 270.

92 Spencer, above n 55.

93 Legal Action Group The Auld Review of the Criminal Courts: Response of the Legal Action Group (London: LAG, 2002), available at http://www.lag.org.uk/Templates/Internal.asp?NodeID=91619.

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99 Damaška, above n 2 and 3.

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101 Damaška, above n 3.

102 Lord Phillips, above n 89; The Law Society recommends defence advocates to consider whether compliance with CrimPR in any particular case would jeopardise human rights or legal professional privilege: Law Society Criminal Procedure Rules: Impact on Solicitors' Duties to the Client (2008), available at http://www.lawsociety.org.uk/documents/downloads/practicenote_criminalprocedurerules.pdf.

103 Three Rivers District Council v Governor and Company of the Bank of England (No 6)[2005] 1 AC 610; see R Pattenden and L Skinns, ‘Choice, privacy and publicly funded legal advice at police stations’[2010] 73 MLR 349.

104 Amending Criminal Procedure and Investigations Act 1996, s 6C; Criminal Justice Act 2003 (Commencement no 24 and Transitional Provisions) Order 2010, SI 2010/1183 brought the section and its associated provisions into force in England and Wales from 1 May 2010.

105 Ministry of Justice, Explanatory Memorandum to the Criminal Procedure and Investigations Act 1996 (Notification of Intention to Call Defence Witnesses) (Time Limits) Regulations 2010 [7.3].

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107 Ibid, Laws LJ [22].

108 Code of Practice for Interviews of Witnesses Notified by Accused order 2010, available at http://www.opsi.gov.uk/acts/acts1996/related/ukpgacop_19960025_en.pdf.

109 Lord Bach, House of Lords Grand Committee, 18 March 2010; A Edwards ‘Defence witness notices’Law Gazette 6 May 2010.

110 General Council of the Bar/Criminal Bar Association, Consultation Paper Response: Notification of Defence Witness Provisions 2010: Lord Thomas of Gresford, Official Report, 16/6/2003; cols 570–571.

111 Lord Thomas of Gresford predicted referrals to European Court of Human Rights, House of Lords Grand Committee, 18 March 2010. Fear of facts laid before counsel being disclosed to client's detriment undermines the right to legal advice: R (on the application of Morgan Grenfell & Co Ltd) v Special Commissioners of Income Tax[2003] 1 AC 563, per Lord Hoffmann [7]. See also R v McE[2009] UKHL 15; Pattenden and Skinns, above n 103.

112 Lanz v Austria App No 24430/94 ECtHR Judgment 31 January 2002.

113 Lord Phillips, above n 89.

114 Langer, above n 74. The phrase ‘managerial judge’ first coined in Resnik, J, ‘Managerial judges’ (1982) L Rev 374 Google Scholar.

115 Langer, ibid.

116 Eg Hall, above n 65.

117 Eg Home Office, above n 55; Lord Chancellor and Attorney-General Secretary of State for Home Department, above n 48.

118 The ECtHR emphasises their rights to liberty and to security, and to privacy, Arts 5 and 8 respectively: Doorson v Netherlands (1996) 22 EHRR 330.

119 To an extent ‘comparable with the measures of this type which it takes in respect of the defendant’: European Framework Decision on the Standing of Victims in Criminal Proceedings 2001, 2001/220/JHA Art 5.

120 R (on the application of D) v Camberwell Green Youth Court[2005] 1 All ER 999.

121 Police and Criminal Justice Act 2006, s 47; Coroners and Criminal Justice Act 2009, s 104.

122 ss 114–118.

123 Al-Khawaja and Tahery v UK[2009] ECHR 26766/05 in the European Court of Human Rights.

124 Hodgson, above n 1.

125 Horncastle et.al[2009] EWCA Crim 964; [2009] All ER 183.

126 [2009] UKSC 14; [2010] 2 WLR 47. The case was heard in July 2009 by the House of Lords. See M Requa (2010) 14 E & P 208.

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128 Dennis , I The Law of Evidence (London: Sweet and Maxwell, 4th edn, 2010)Google Scholar ch 17.13.

129 Criminal Justice Act 2003, s 101; the competing rights of co-defendants are dealt with in s 101(1)(e).

130 Criminal Justice Act 2003, ss 43–50. Separate legislation was required to bring these provisions into force. In order to secure House of Lords agreement, the government undertook that it would not be implemented without further consultation. The House of Lords blocked the Fraud Trials (Without a Jury) Bill 2006.

131 Criminal Justice Act 2003, s 44.

132 Twomey, Blake, Cameron and Hibberd[2009] EWCA Crim 1035; [2010] Crim LR 82, overruling Calvert-Smith J, who had thought a moderately-priced package of protective measures would neutralise the risk to the jury.

133 A Fresco and F Gibb ‘Lawyers fear more trials without jury after guilty verdict in robbery’The Times 1 April 2010. Although the Lord Chief Justice declared that the prosecution must prove the need to protect the jury, here the prosecution burden appeared to be satisfied simply by a claim that protection would be very expensive: Twomey, Blake, Cameron and Hibberd, above n 132.

134 J, S and M[2010] EWCA 1755.

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136 T Green Verdict According to Conscience (Chicago IL: Chicago University Press, 1988) p 149.

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140 F Gibb ‘Will Clarke's cuts threaten the way local justice works?’The Times 1 July 2010; T Whitehead ‘Senior judge warns dozens of courts should not be closed’Daily Telegraph 21 October 2010.

141 10% in 2009: Lord Judge CJ, above n 11. Workload predicted to rise until 2011: National Audit Office Administration of the Crown Court (London: TSO, 2009)Google Scholar.

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143 L Bridges, above n 14.

144 Conditional cautions for adults under Criminal Justice Act 2003, ss 22–27 were extended to young offenders by Criminal Justice and Immigration Act 2008, s 48. The variety of conditions was extended by the Criminal Justice Act 2003 (Conditional Cautions: Financial Penalties) Order 2009, SI 2009/2773. An offender may now be fined and cautioned simultaneously. The use of cautions for ‘standard list’ offences for young males increased from 6% in 1971 to 20% in 2006: Statistics Division, Ministry of Justice Conviction Histories of Offenders Between the Ages of 10 and 52, England and Wales (London: Ministry of Justice, 2010)Google Scholar available at http://www.justice.gov.uk/criminal-histories-bulletin.pdf pp 4 and 5.

145 Penalty Notices for Disorder (FPNs) introduced for traffic offences from 1988 then for antisocial behaviour, Criminal Justice and Police Act 2001, s 1. Theft and criminal damage were added to the list: Criminal Justice and Police Act 2001 (Amendment) and Police Reform Act 2002 (Modification) Order 2004, SI 2004/2540.

146 F Gibb ‘Caution for assault “will one day be followed by murder”’The Times 9 November 2009; A Travis ‘Jack Straw orders review of police cautions for violent offences’The Guardian 9 November 2009.

147 Criminal Justice and Police Act 2001 (Amendment) and Police Reform Act 2002 (Modification) Order 2004, SI 2004 no 2540. See Edwards, A ‘Do the defence matter?’ (2010) 14 E & P 119 Google Scholar.

148 Edwards, ibid.

149 Cindy Barnet, Chairman Magistrates' Association, Letter, The Times 8 November 2005; F Gibb ‘Do not widen out-of-court penalties, magistrates tell Jack Straw’The Times 5 May 2005; Home Office Penalty Notices for Disorder Statistics 2004 RDS Findings no 257 (London: Home Office, 2004); A Ashworth and L Zedner ‘Defending the criminal law: reflections on the changing character of crime, procedure and sanctions’ (2008) Crim Law and Philos 21; Edwards, above n 147; Magistrates' Association Evidence to the House of Commons Justice Committee' Ninth Report: The Crown Prosecution Sevice – Gatekeeper of the Criminal Justice System (London: House of Commons, 2009) at [50]; H Siddique ‘Magistrates warn police could misuse new driving fines’The Guardian 18 August 2009; Morgan, above n 139.

150 Edwards, above n 147; G Halligan-Davies and K Spicer Piloting ‘On the Spot’ Penalties for Disorder: Final Results from a One Year Pilot Home Office Findings no 257 (London: Home Office, 2004).

151 Jones v Whalley[2007] 1 AC 63.

152 Gore and Maher[2009] EWCA Crim 1424; R (on the application of Guest) v DPP[2009] Crim LR 730. The reasoning was that the prosecutions were not for the identical offence, although for the same event, for which the fines or cautions had been administered.

153 Police and Criminal Evidence Act 1984, s 30A.

154 Police and Justice Act 2006 s 10, Sch 6.

155 Noted in the civil sphere by Genn, above n 49.

156 House of Commons Committee of Public Accounts Crown Prosecution Service: Effective Use of Magistrates' Courts Hearings HC 982 (London: TSO, 2006) p 12.

157 Surrey Criminal Justice Board Current Initiatives, available at http://lcjb.cjsonline.gov.uk/Surrey/641.html. See A Mackie, J Burrows and R Tarling ‘Preparing the prosecution case’[1999] Crim LR 460–469.

158 First issued in 2007, available at http://www.cps.gov.uk/publications/directors_guidance/streamlined_process.html.

159 HMCPSI Review of the Performance of CPS London 2009–10: Pub no CP001.971 (London: HMCPSI, 2010) at 6.61.

160 Ibid, 2.14.

161 Ibid, 3.26.

162 Freibert, A ‘Managerialism in Australian criminal justice: Rip for Kpis?’ (2005) 31 Monash L Rev 12 Google Scholar at 18.

163 ‘The criminal justice system must do all it can to encourage those who are guilty to plead at the earliest opportunity’: Lord Judge CJ, above n 11, at [2.8]; Sir Robin Auld favoured judges being able to give an advance indication of sentence should the defendant change his plea, Auld, above n. 46, at 442; Now allowed, in Goodyear[2005] EWCA Crim 888; but only if the defence asks for such an indication, The court retains an unfettered discretion to refuse to give it or to postpone giving it; but once given, it is binding on any judge who tries the case.

164 Available at http://www.justice.gov.uk/criminal/procrules_fin/contents/practice_direction/forms_anx_e%20pdf/annex-e-pcmh-april-2010.pdf.

165 Criminal Justice Act 2003, s144 states that in determining sentence a court shall take account of at what stage of the proceedings the defendant indicated his intention to plead guilty, and the circumstances in which this indication was given.

166 C Corre The Administration of Justice (University of Sheffield: Unpublished PhD thesis, 2002) describing old-style Plea and Directions Hearings.

167 F Gibb ‘Pleading guilty to the police should be rewarded with a lighter sentence’The Times 3 June 2010, quoting Leveson LJ.

168 S Coates and R Ford ‘Time off for early guilty pleas’The Times 24 April 2010.

169 Jörg, Field and Brants, above n 28, Kaufman v Belgium (1986) 50 DR 98 at 115; Foucher v France (1998) 25 EHRR 234 at [34].

170 Teixeira de Castro v Portugal (1998) 28 EHHR 101.

171 Jespers v Belgium (1981) 27 DR 61; Salduz v Turkey[2008] ECHR 1542, endorsed by Supreme Court in Cadder v HMA[2010] UKSC 43.

172 Edwards, above n 147; Jackson, J ‘Silence and proof: extending the boundaries of criminal proceedings in the United Kingdom’ (2001) 5 E & P 145 Google Scholar.

173 Rt Hon Sir Ian Glidewell Review of the Crown Prosecution Service Cm 3972, 1998 at 9.34.

174 O'Neill above n 18.

175 Change effected by the Legal Services Commission Defence Solicitors Call Centre: Questions and Answers LSC, January 2008, in order to, inter alia, ‘give us better information about police station work’ available at http://www.legalservices.gov.uk/criminal/defence_solicitor_call_centre.asp#changes. See L Bridges and E Cape CDS Direct: Flying in the Face of the Evidence (London: Centre for Crime and Criminal Justice Studies, 2008).

176 Non-imprisonable and drink/driving offences, unless the police carry out an interview or identification parade: Unified Contract (Crime), replacing the revised General Criminal Contract. See Bridges and Cape, above n 175. Telephone advice found to be of limited value: Sanders et.al , A 24 Hour Duty Solicitors Scheme (London: Lord Chancellor's Department, 1989)Google Scholar.

177 Pattenden and Skinns, above n 103.

178 Edwards, above n 147.

179 Judge LJ Evidence to the Select Committee on Constitutional Affairs 22 June 2004.

180 Richards J Evidence to the Select Committee on Constitutional Affairs 22 June 2004.

181 Ministry of Justice, Legal Services Commission Crown Court Means Testing CP 27/08 (London: Ministry of Justice, 2008) at [34]–[35].

182 United States v Ruiz (2002) 536 US 622 although evidence concerning informants was treated differently.

183 Attorney-General's Guidelines on Plea Discussion in Cases of Serious or Complex Fraud (2009) available at http://www.attorneygeneral.gov.uk/Publications/Documents/AG%27s%20Guidelines%20on%20Plea%20Discussions%20in%20Cases%20of%20Serious%20or%20Complex%20Fraud.pdf[B.4]; [C.1] Any bargain comprising an agreed sentence is contrary to principle: R v Dougall 1 June 2010, The Times.

184 Searle et.al, above n 97, at [256].

185 Means testing was reintroduced for magistrates' courts in 2006 by the Criminal Defence Service Act 2006 which also enabled means testing for defendants in Crown Courts. The scheme for trials on indictment was piloted and then implemented nationally during 2010, https://survey.legalservices.gov.uk/consult.ti/CrownCourtMeansTestingSurvey/consultationHome. However, regulations restricting an acquitted defendant?s recoverable costs to legal aid paymentrates were held to be ultra vires the enabling statute: Queen on application on behalf of Law Society of England and Wales v Lord Chancellor[2010] EWHC 1406.

186 In 2006, about 2800 lawyers: Evidence of Richard Foster, Chief Executive CPS, to House of Commons Committee of Public Accounts; Crown Prosecution Service: Effective Use of Magistrates' Courts Hearings HC 982 Q 21 (London: TSO, 2006). By 2010 numbers dropped to around 24,340, Crown Prosecution Service website http://www.cps.gov.uk/about.facts.html.

187 HMCPSI, above n 159.

188 Director of Public Prosecutors Guidance to Police Officers and Crown Prosecutors (London: Crown Prosecution Service, 2007)Google Scholar: in accordance with the Glidewell Report recommendations, above n 175. Now see O'Neill, above n 18.

189 HMCPSI, above n 159, at 12.3; As at September 2008 the 977.6 (FTE) CPS Higher Court Advocates had presented just under 80,000 Crown Court hearings: House of Commons Justice Committee, Ninth Report: The Crown Prosecution Sevice – Gatekeeper of the Criminal Justice System (London: House of Commons, 2009) at [71].

190 P Plowden ‘Case management and the criminal procedure rules’[2005] NLJ 416; R Ede and E Shepherd Active Defence (London: Law Society, 2nd edn, 2000); HMCPSI, Thematic Review of the Duties of Disclosure of Unused Material Undertaken by the CPS 2008; HMPSI Disclosure: Report of the Follow-Up Review of the Duties of Disclosure of Unused Material Undertaken by the Crown Prosecution Service 2009; HMCPSI Abandoned Prosecutions: an Audit of CPS Performance Relating to the Handling of Discharged Committals (London: HMCPSI, 2010)Google Scholar.

191 House of Commons Justice Committee, above n 189, at [45].

192 Case management is being introduced in various common law jurisditions, eg Australian Government, Australian Institute of Criminology, Criminal Trial Delays in Australia: Trial Listing Outcomes Research and Public Policy Series no 74 (Canberra: Australian Institute of Criminology, 2007); W Soden ‘Perspectives on the changing role of the judiciary in coordinating criminal justice’ in D Biles and S McKillop (eds) Co-Ordination: Proceedings of a Conference held 19–21 April 1993, Conference Proceedings no 24 (Canberra: Australian Institute of Criminology, 1994); Y Danandurand Addressing Inefficiencie in the CriminalJustice Process International Centre for Criminal Law Reform and Criminal Justice Policy, (British Columbia Justice Efficiencies Project, 2009); Searle et.al, above n 97.

193 F Elliott ‘It's your country, we'll put you in charge of your own destiny, Cameron declares’The Times 14 April 2010; see Kirby , J The Reality Gap: an Analysis of the Failure of Big Government (London: Centre for Policy Studies, 2009)Google Scholar.

194 Clarke, above n 13.

195 Langer, above n 74.

196 Brownlee, above n 14.

197 McLaughlin and Muncie, above n 18; Cape, above n 18; Home Office Departmental Report 2008 CCM 7396, 2008. The new Home Secretary has promised to scrap police targets, O'Neill, above n 188.

198 HMCPSI, above n 159, at 3.22.

199 National Audit Office, above n 141; and across the common law world: Mahoney , B Changing Times in Trial Courts (Williamsburg VA: National Centre for State Courts, 1988)Google Scholar; Sackville, R ‘from access to justice to managing justice: the transformation of the judicial role’ (2002) 12 Journal of Judicial Administration 5–24 Google Scholar.

200 Field and Thomas, above n 26, at 14.

201 H Arendt On Violence (New York: Harcourt, Brace and World, 1970) p 81.

202 Langbein , Jl The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003)Google Scholar; but see review by D Dwyer (2003) 66 MLR 940.

203 Courts and Legal Services Act 1990, s 27; rights of audience if qualify as Solicitor Advocate.

204 House of Commons Justice Committee, above n 189, at [61].

205 Under Legal Services Act 2007.

206 J Ames ‘Is “Tesco law” heading for the long grass?’The Times 3 June 2010.

207 Mainly a consequence of the number of initiatives. HMCPSI, above n 159.

208 House of Commons Committee of Public Accounts; Crown Prosecution Service: Effective Use of Magistrates' Courts Hearings HC 982 Q 21 (London: TSO, 2006) Evidence of Richard Foster, Chief Executive CPS, Q14.

209 T Weigend ‘Why have a trial when you can have a bargain?’ in A Duff et.al Trial on Trial vol 2 (Hart Publishing, 2006) pp 207 and 219.

210 Lacey, above n 3, quoting Winston Churchill HC 25 July 1920: ‘The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country’.