Sir Keir Starmer, the leading light in the Labour Party’s “Victims Taskforce” has suggested that in sexual and violent cases trial judges, instead of defence advocates, should question “young and vulnerable witnesses.” It is a revolutionary proposal and like most revolutionary proposals, profoundly dangerous.
In this country, as in all common law jurisdictions, the prosecution presents evidence to a jury, the defence tests it and an impartial judge oversees the process trying to ensure fairness to both sides.
Starmer’s proposal would shatter that system, hobbling the ability of the defence to defend and turning the judge from an impartial umpire into something approaching a continental juge d’instruction.
Nobody suggests that complainants in sexual cases have an easy ride under the current system but in many ways the stakes are loaded heavily against the defendant. Unlike prosecution witnesses, for example, the defendant, who may in some cases be far more “vulnerable” than his accusers, is denied both anonymity and the panoply of “special measures” available to prosecution witnesses: screens, video links and so on.
The trial is his one opportunity to show that he might be innocent. His best hope is to have an advocate who can show by cross-examination that the prosecution witnesses are either untrustworthy or mistaken.
He will give instructions to his lawyers, who must then decide what questions to ask, and how to ask them. In some cases, and especially where young children are concerned, a gentle probing with little overt challenge is called for. In others a brutal attack on the character of the witness is justifiable if lies are to be exposed. Of course the system is far from perfect and honest witnesses are sometimes traduced and dishonest ones sometimes believed.
But Starmer’s proposal would remove that critical right from the defendant and place his fate in the hands of the trial judge, presumably in the expectation that judicial questioning would be kinder.
It would place judges in an impossible position. Their impartiality would be the first casualty. If they asked gentle, easy questions designed not to upset the witnesses – which is what Starmer seems to favour – that would skew the trial grotesquely in favour of the prosecution. He is not suggesting the friendly uncle approach when it is the defendant’s turn in the witness box.
Even if judges tried to challenge and cross-examine they could hardly do so effectively without being privy to all the information that a defence legal team has. So would defendants be required to hand over their instructions to allow the judge to decide the questions to be asked?
The fundamental problem withSir Keir’s “Victims Taskforce” is the implicit assumption that complainants are “victims”. Once that assumption is made then any trial which might lead to an acquittal is an unsatisfactory inconvenience, and almost any reform that increases the conviction rate is to be supported.
But not all complainants are victims, and not all defendants are criminals. If we are to have a justice system that properly distinguishes between the guilty and the innocent then we should have no truck with this doubtless well-intentioned but nevertheless truly alarming proposal.
This post first appeared in The Times 10th April 2014