Protecting the innocent is even more important than convicting the guilty

It is depressing enough that the Labour Party has established a “Victims Taskforce” intended to “transform the criminal justice system into a criminal justice service geared towards protecting the public and supporting innocent victims of crime in bringing those guilty to book.” All of us have become used to politically inspired empty gestures, especially in the field of criminal justice. The newly knighted former Director of Public Prosecutions, Sir Keir Starmer, has agreed to chair it. We should remain optimistic and assume that the Taskforce is just a pointless gimmick because the alternative that it may succeed is much more worrying.

A criminal justice system should not be “geared” towards “bringing the guilty to book.” On the contrary, if any gearing of the scales of justice is required it should be towards protecting the innocent. The great eighteenth century jurist Blackstone – no bleeding heart liberal – famously declared it better that ten guilty men escape than that one innocent suffer. The principle was taken up enthusiastically in America and eloquently explained by John Adams, second President of the United States:

It is more important that innocence should be protected, than it is, that guilt be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished; for guilt and crimes are so frequent in the world that all of them cannot be punished; and many times they happen in such a manner, that it is of not much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned … the subject will exclaim, ‘it is immaterial to me whether I behave well or ill, for virtue itself is no security.’ And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever.”

It is a principle that should be at the heart of every civilised legal system.

It would be possible, of course, to improve the justice system for everyone without undermining the rights of defendants. Money spent on more courts to hear more cases, for example, would reduce the sclerotic delays that discourage prosecution witnesses and shred the nerves of defendants and witnesses alike. But this does not seem to be the sort of thing that is envisaged. The impact on defendants was not mentioned in the Labour Party press release announcing the establishment of the Taskforce, nor by Sir Keir in the interview he gave to the Today programme on December 28th. Instead there is criticism of the way prosecution witnesses are cross-examined. Reference was made in the Labour Party’s press release to the cross-examination of Millie Dowler’s father and Sir Keir referred to the cross-examination of young victims of sexual offences in recent well-publicised cases. Victims generally, according to Sir Keir, are getting a raw deal from the criminal courts.

He stated the nub of his argument on the Today programme:

Most victims, particularly vulnerable victims, don’t have the confidence to come forward. Most of them have a pretty awful journey through the court process and nearly all of them at the end of it say they’ll never do it again.”

As one would expect from Sir Keir, this is very clear. But it also betrays a whole host of lazy assumptions.

Perhaps it was unreasonable to expect him to justify them in a 4 minute radio interview, although it was a pity that he was not asked to do so. And it is, I suppose, possible that he has access to privileged information that the rest of us, no doubt for good reasons of national security or disproportionate expense, have not been allowed to see. Nevertheless, based upon research that has been published Sir Keir’s assertions appear to be largely tommyrot.

Let’s look at them one by one.

Most victims, particularly vulnerable victims, don’t have the confidence to come forward.”

It is difficult to know that someone is a victim unless they complain to someone, so it is not easy to test the truth of this statement. Nevertheless attempts have been made and they certainly do not support the sweeping assertion that “most victims don’t have the confidence to come forward,” (by which, presumably, Sir Keir means to report the crime to the police).

It is true that a large number of crimes are not reported, but that has little to do with the victims’ fears that they will be badly treated. According to a 2003 survey by Ipsos-Mori conducted on behalf of the Audit Commission, “67% of victims reported the most recent crime that they had been exposed to.” That that left a substantial minority – 33% – of victims who did not. But the reasons for non-reporting had little to do with a lack of confidence amongst the victims. The combined reasons of “too trivial”, “could not be bothered” and “did not want the hassle” accounted for 31% of failures to report. 30% felt “the police would [not] do anything,” which might perhaps equate to a “lack of confidence” although it would also include those who realistically recognised that in some cases there really is nothing that the police can do. Only 7% – a tiny minority out of the minority that did not report – did so because of a belief that they “would not be taken seriously”. The survey also confirmed the fact that the crimes that were least likely to be reported tended to be the least serious ones such as criminal damage and vandalism.

The British Crime Survey statistics for 2009 – 2010 do provide some support for the view that most victims do not report crimes in which they have been involved. Based upon statistics compiled by the BCS it appears that in 2009 – 2010 about 57% of crime experienced by its participants was not reported to the police.

But even a cursory examination of the BCS data, just like that of Ipsos-Mori, shows that this apparently low reporting rate has very little to do with a “lack of confidence” amongst victims. The main reason crimes were not reported was that most of them were not worth reporting: they were seen as too trivial to be worth bothering with, a perfectly rational and not very worrying state of affairs. The report could not be clearer:

As in previous years, the most frequently mentioned reason for not reporting incidents was that victims perceived them to be too trivial, there was no loss, or they believed that the police would or could not do much about them.”

If your windscreen wiper is broken off in an act of pointless vandalism you are a “victim” of crime, but very probably you will simply shrug your shoulders, sigh and get on with your life. It would be absurd to characterise such an attitude, which is probably that of the vast majority, as “a lack of confidence”. What is more, if by an extraordinary chance Sir Keir was able to persuade large numbers of such victims – against their better judgement – to report these minor irritations to the police, and if the police were then expected to try to solve them, the criminal justice system would quickly become overwhelmed by a tsunami of trivia.

 

Most [victims] have a pretty awful journey through the court process …”

 

Obviously some victims do have a bad and even a terrible time giving evidence, and no-one would wish the experience, say, of Millie Dowler’s father on anyone. Cases such as that of the violinist Frances Andrade, who committed suicide shortly after being cross-examined as a witness in the trial of Michael Brewer, the man who sexually abused her many years earlier, make it impossible to be complacent about the damage that cross-examination can do to innocent and sometimes already damaged individuals.

But Sir Keir’s casual assertion that “most have a pretty awful journey through the court process” is nonsense. The Ministry of Justice has commissioned regular surveys of witnesses’ and victims’ experiences (known by the acronym “WAVES”). The surveys are not comprehensive (they do not include responses from the victims of sexual offences, for example) but they are the best we have. In 2009 (early in Sir Keir’s tenure as DPP), of victims and witnesses whose cases went to court (some of which must have ended in acquittals after contested trials) 81% reported that they were either completely (29%), very (25%) or fairly (26%) satisfied with their contact with the criminal justice system.

 

Nearly all of them at the end of it say they’ll never do it again.”

Sir Keir’s statement is simply wrong. In fact, the 2009-10 WAVES survey found that 67% of victims and witnesses who gave evidence said precisely the opposite: that they would be prepared to give evidence again in the future.  That a significant minority say they would not is, of course, worrying but nothing like as worrying as Sir Keir’s wildly exaggerated assertion.

Why does it matter if Sir Keir is a little imprecise with his facts? Surely his heart is in the right place when it comes to improving the criminal justice system? Well perhaps it is, but whipping up an unjustified scare and exaggerating the problems that victims face in court does not seem a very sensible way to start improving it. Apart from anything else, if any nervous victims happened to be listening to Sir Keir on the Today programme he will have made them even more nervous, and for no good reason.

More worryingly, Sir Keir’s apparent willingness to make sweeping assertions unsupported by evidence suggests that in constructing a criminal justice system “geared towards bringing the guilty to book” he may well find himself tempted by dangerously illiberal measures.

He was asked in the same interview about the trial of the Grillo sisters for stealing from the Lawsons and in particular about Miss Lawson’s cross-examination by the defence. It was, he said “very troubling … in any court-room up and down England & Wales you’ll have similar experiences day in day out…..” Indeed so, because robust cross-examination, sometimes leading to acquittals, is absolutely central to our adversarial system. But “very troubling”? Not at all if the Grillos were innocent.

As far as possible witnesses should, of course, be treated with respect and courtesy. But the courts do not exist to provide therapy and healing to witnesses. They exist first to acquit the innocent; secondly to convict the guilty. Rather surprisingly the 2012 Criminal Procedure Rules gets it in the right order:

Dealing with a case justly includes:

(a) acquitting the innocent and convicting the guilty ….

To do that it is very often necessary to uncover lies and strip away deception. Cross-examination is the sometimes painful means by which it is done.

A dangerous momentum is building to restrict the rights of defendants to cross-examine prosecution witnesses effectively. There have been a few genuinely worrying cases, a celebrity chef accused by the defence of lying and now a distinguished legal figure fanning the flames. Sir Keir has pointedly not ruled out a political career after the next election, and if he were to be elected he would be an obvious candidate for high office in a Labour administration. His views are important. Before he gets too carried away on a tide of populist condemnation of a procedure that has protected our liberty for generations he should remember that the real victim is not necessarily the weeping witness in the witness box. Sometimes it is the terrified, inarticulate and innocent defendant in the dock.

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Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

9 thoughts on “Protecting the innocent is even more important than convicting the guilty”

    1. It’s certainly an interesting idea Clare, though not one I support. I think there may be an element of the grass in other jurisdictions always looking a bit greener.

  1. Keir Starmer does seem to have been unwise in his reply to the question about the Saatchi-Lawson-Grillo case. Barrister-blogger and a number of other commentators have stressed that restricting the right to challenge witnesses – had NIgella Lawson not been cross-examined to the extent that she was – could in that case have led to convictions of the Grillo sisters and thus a miscarriage of justice.

    The press coverage of the Grillos’ trial and comment after the verdict has in fact highlighted more interesting aspects – why did the CPS pursue the case; did the barrister instructed for the prosecution warn her client that the case was weak, or even suggest the charge be dropped; did the CPS and the barrister listen to Ms Lawson’s apparent doubts about the case conveyed to the police (we were told) after the divorce and two months before the trial; and of course why the matter was not referred back rather earlier to the complainants (then married) as something for civil litigation, not a criminal charge.

    The principle set out by the US politician and jurist John Adams, quoted above, has some relevance to the Grillos case: the words:
    “….Guilt and crimes are so frequent in the world that all of them cannot be punished; and many times they happen in such a manner, that it is of not much consequence to the public, whether they are punished or not”
    would seem to apply.

    The same principle under another DPP than Keir Starmer could have reasonably been applied to the highly regrettable pursuing of Chris Huhne and Vicky Pryce over taking fixed-penalty points for a motoring offence. The way in which this offence came to light, the role of a Sunday Times journalist and a (currently-suspended) Judge, and the dragging into public view the troubles of a family (to the extent that the couple’s children’s relationship with their parents has been brought into the open, and severly damaged) all suggest that John Adams’s principle should have applied. A better DPP would have decided early on to leave the matter alone.

  2. May I add one fact to the main article above which readxers may find helpful. Barrister-blogger writes “If your windscreen wiper is broken off in an act of pointless vandalism you are a “victim” of crime, but very probably you will simply shrug your shoulders, sigh and get on with your life. ”
    This has happened to me twice – the rear windscreen wiper was once broken off, and a second time unscrewed and stolen. I did not replace it, and was grateful to my local car mechanic who told me that the rear windscreen wiper is not required for a car to pass the MoT test and you do not have to have one. He explained that not every vehicle is designed to allow the driver a view through the rear window using the mirror. Vans have blank rear doors after all. As long as both wing mirrors are effective, the test is passed. He commented that having taken customers’ cars to the local testing station for so long he knew well what is required for an MoT and what is not. Not every garage will be as accurate in their advice I suspect.
    It seems to be the rear window wiper that is easiest to steal… so it may be useful to readers to know that you do not have to have one ….. and can buy another, if you want one, in your own time.

    1. Many thanks for those more than usually helpful comments Mark. I’m not surprised to learn that rear windscreen wipers are an optional extra. I hardly ever use mine. That said I would b annoyed if someone broke it off, just not as annoyed as if it was a front one.

  3. There are other reasons why crime is under-reported.

    Several years ago, a colleague to find his house broken into, trashed, bottles and rubbish all over the place. Some toerags had use his house for a party. So like a dutiful citizen he called the police. Big, big mistake. Unknown to him the toerags had been helping the party along with some drugs. When the police arrived they found the drug related items left behind and promptly arrested him. His (understandable in my opinion) reaction of ‘you have got to be f*****g kidding’ promptly got him threatened with further arrest for using threatening language. He spent the night in jail and missed work the following day.

    His insurance company refused to pay for the cleanup and damage repair because they will not pay out until the Police state that he is not responsible. Trouble is they will only say that there was insufficient evidence that he was involved.

    He lost a days pay, had to pay for the cleanup himself, and now has an arrest on record and his fingerprints in a database. All for being a good citizen. The best outcome for him would have been not to have bothered the police at all.

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