The Criminal Justice & Victims Act 2015

Posted: 03/02/2014 in Barrister, Human Rights, Pupil barrister
Tags: , , , , ,

Excuse the geek factor for a moment, but when Keir Starmer was appointed DPP I was excited. Excited as I thought it meant a complete change in the country’s prosecution policy. Less resources would be wasted on hopeless trials, there’d be less criminalisation of protesters, there’d be more prosecutions around misfeasance and there would be less of a pursuit of ancillary orders like ASBOs, restraining orders, control orders etc…

What a huge disappointment.

I’m not sure what disappointed me more, his initial decision and subsequent weak looking flip-flop on the prosecution of PC Simon Harwood, or the painful waste of money that was the ‘Twitter Joke Trial’ and the three appeals thereafter…

Now, out of office, all we hear, is his name and then the word closely there associated is, ‘victim’. And, the second word closely associated to him is, ‘Labour’. And in this strange dance out of DPP’s offices and back to private practice, the message (being pumped by someone, I presume in One Brewer’s Green) is that Keir Starmer will be standing for election, as a Labour candidate and he is going to be a champion of victim’s rights.

On the face of it, the cynics will grin a bit, and mentally note how terribly populist it all seems. As someone with a, ‘rights’ based practice, I thought I’d read what appeared to be the flag ship document from Starmer on the subject, in the Guardian, in ‘Comment is Free’.

http://www.theguardian.com/commentisfree/2014/feb/03/britain-criminal-justice-system-victims-law-public-prosecutions

There’s the link…

… and read it a couple of times. I actually read it three times. And I genuinely wonder if he has written it. Not because of the contents but the lack thereof. The essential point you’ll have all gathered from it is, ‘we need a victim’s law’ – but then there is absolutely nothing in the article that says what should be in it, the comments below say it all:

“So – are you proposing the most major shift ever in UK law to move away from the adversarial system (in all types of cases, not just cases where sex and abuse is involved)?”

“What system would you suggest?

One without lawyers? Just draw straws – short and your guilty.”

“Having taken the trouble to set out what you see as major flaws in the handling of cases of alleged abuse, all you are able to suggest by way of remedy is a “Victims’ Law” the contents of which you make no attempt to describe and a rebranding of the criminal justice system to incorporate the already discredited bureaucratic platitude “service”.

These are serious issues. Can I suggest you come back when you have given the matter more thought.”

And it goes on… and on….

The whole article is two dimensional. It’s meaningless.

Once you get over the fact that he hasn’t suggested what will be in his ‘victim’s law’, you then move to his justification of it. Most of it seems to be based on the fact that a number of victims told the CPS to quite literally, ‘fuck off’ – Starmer does not blame this on the CPS or the police, instead he blames it on our judicial system, and in particular the adversarial system.

The truth about the adversarial system

It’s easy to blame the adversarial system. It’s easy because it’s the dramatic bit, it’s the bit, where somebody stands up and suggests to the witness they’re mistaken, or they’re telling lies. But very rare is it dramatic like it is on TV, quite often in fact, when we call stand up and call someone a liar, we do so, because we know so. How do we know, generally, a piece of physical evidence, CCTV, a neutral witness and so forth.

It’s not nice being called a liar.

It’s certainly not being nice being caught as a liar.

The reason the CPS were told to fuck off…

May well be because a particular witness was caught in a lie. Every criminal barrister can tell you at least 3 or 4 stories, where the CCTV of an incident (which of course the CPS have!) has completely gone against a witness and their version of events.

Of course, there are other times where witnesses and victims don’t want to give evidence. There’s nothing quite as horrible as seeing a woman being frog marched into Court by coppers to simply cry in the witness box for 20 minutes. That woman (or indeed man) may well have written three or four witness statements, they might all be different, a couple of them may even say they don’t support the proceedings.

It is so horribly nannying, to say we’re going to put victims at the centre of criminal justice but at the same time say they don’t have any right to choose. It irks me so. You either have an impersonal system where by the state is treated almost like the victim, or you have a personal system where it is almost as if the victim directs the prosecution. But if you have the latter you have to let the victim choose, not just presume it’s right for them and sally forth on a prosecution against their will.

Oh, and if you do decide you’re going to prosecute someone against a victim’s will, then at least have the dignity and respect to prosecute the right offence. Strangulation of a woman, throwing a woman down the stairs, breaking her bones, breaking the skin, making her bleed, is not a battery, it’s an offence triable on indictment with a commensurate sentence.

And when you prosecute an offence, could you have the decency to do as follows:

– Send a lawyer with an up to date practitioners’ text. The law has changed since 2009.

– Send a lawyer who has had the papers for more than 30 minutes before the trial starts.

– Send a lawyer who has a level of advocacy whereby at the very least they can compete with a second six pupil*

– It it’s in the Crown Court, pick a barrister and stick with them

– Don’t reduce them to a X or tick system

– Be certain to follow the barrister’s advice on charge and on evidence.

– Be courteous and actually reply to the police officer in charge’s emails

– Don’t lose evidence

– Don’t lose witnesses

– Don’t lose simple cases

(Can I return to the ‘*’ point for a minute. One of the big things to improve CPS advocacy was to send round lecterns for CPS advocates in all Magistrates’ Courts. Fundamentally that makes no difference. Can I say why the standard of a second six pupil is the minimum (( and it’s not solicitor v barrister)) – it’s this: a second six pupil has had the following training: a year in a classroom learning about and doing advocacy exercises, 6 months following around and watch a senior barrister and their advocacy, has completed a course run by senior barristers and Judges as to their advocacy. CPS lose cases because a lot of their lawyers are not advocates.).

Don’t take an obvious point

Labour are taking the obvious point that it’s tough for victims of violent and sexual crime to give evidence. I quite agree. But, a 2D, half arsed, ‘victim’s law’ is not the answer.

And it’s horribly transparent, and disappointing, that you’d use an ex DPP ‘from the other side’ to try and push the point. It looks desperate.

The Criminal Justice Act 2003, did all sorts of damage to the English justice system, it was not properly drafted and has taken 10 years to be litigated and re-litigated. Please do not vote for a ‘Victim’s Law’ – it’s hollow and crass. Vote for a political party that will take the CPS, and take them to task rather than blaming a perfectly good, world replicated, safety conscious adversarial system.

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Comments
  1. peter says:

    Can I add another one for your list.

    Don’t prosecute unwinnable cases because it is Politically Correct (or because you are scared of the resulting publicity).

    I was a MOP at a case where a wife alledged assault on the husband. The husband claimed she assaulted him and he was acting in self defence.
    The wife’s witness statement admitted she assaulted him, other witness statements were totally contradicary, she was not injured, hurt or even marked by the assault she alleged. (In fact the only injuries were sustained by the husband, and the pattern of injury backed up his claim of being victim of assault). He was the one arrested and prosecuted.

    So why did the CPS continue the prosecution? Who knows and I suspect the truth is buried under layers of ‘public interest’ statements, but I suspect it had little to do with a realistic hard appraisal of the case, and a lot to do with publicly surrounding the police and CPS failing to protect ‘victims’ and society’s perception that only a woman could be a victim.

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