Do we need a Victims Commissioner?

On hearing the words “Dame Vera” most people will think fondly of the 102 year old golden-voiced Forces’ sweetheart. Those in the legal world, however, are more likely to conjure up a picture of the 69 year old flame-haired Fabian firebrand Dame Vera Baird QC, formerly a barrister in the chambers of radical lawyer Michael Mansfield QC, then a Labour MP and Solicitor General, then the Police and Crime Commissioner for Northumbria and now The Victims Commissioner for England and Wales.

In her early career Dame Vera usually defended those accused of serious crimes, but in more recent times she has used her various offices to campaign vigorously for changes in the law that make it easier to convict and imprison them. The former poacher has metamorphosed into a ferocious gamekeeper; it is not hard to imagine her prowling round the estate, setting man-traps, loading the spring-guns and inspecting the rotting cadavers of corvids gibbeted on the boundary fence.

For those who are not familiar with the office of Victims Commissioner, it is a statutory appointment of a person charged with the duty of “promoting the interests of victims and witnesses” and taking “such steps as she considers appropriate with a view to encouraging good practice in the treatment of victims and witnesses.”

In recent days Dame Vera has considered it appropriate to take up the suggestion of a lawyer called Dino Nocivelli. Mr Nocivelli is a solicitor whose firm’s website gives a few clues to where he is coming from. “Dino,” it says, specialises in civil actions relating to:

* Abuse in football and a number of other sports

* Abuse within religious institutions, especially the Catholic Church and the Church of England

* Abuse in the Scouts

* Abuse in the military

* Abuse in schools

* Abuse in youth clubs

* Abuse abroad

* Abuse in the family

It is, of course very much easier for Mr Nocivelli to obtain compensation from all these organisations – alright “abroad” isn’t an organisation – if criminal convictions have been obtained first. As Clare Jervis has pointed out in a comment below the original blog, this was the approach followed, for example, by one of Mr Nocivelli’s former clients Danny Day, who first accused a retired fire officer, David Bryant, of sexually assaulting him, gave evidence against him at a criminal trial at which he was convicted, and then attempted to sue the Dorset Fire Service for up to £100,000.  The strategy fell apart on that occasion because Mr Day turned out to be (in the words of Mr Justice Singh) “a chronic liar” and Mr Bryant turned out to be innocent.

I’m certainly not suggesting that Mr Nocivelli or Dame Vera is doing anything in any way improper, but I wonder whether it is altogether wise for the Victims Commissioner to be quite so involved with a claimants’ solicitor; after all it is not only claimants who can be victims, defendants can be as well.

Mr Nocivelli is currently representing 6 men who are very likely to have been victims of the sexual predations of Southampton football coach Bob Higgins. The 6 gave evidence against him at a criminal trial in 1990, but Mr Higgins was acquitted. However, earlier this year 24 different victims gave evidence at a separate trial at Winchester Crown Court, and this time Mr Higgins was convicted. He was gaoled for 24 years, so he is unlikely to be released before he is 78.  Mr Nocivelli wants him to be retried for abusing the original 6:

“We don’t want abusers on the street because of a legal technicality,” he is reported as saying. “A change would allow these victims’ cases to be reopened and they could get justice and closure for the offences that happened to them.”

Sympathetic though one may be to the six, because it certainly doesn’t look as though they obtained justice in the 1990 trial, I don’t find his argument altogether convincing. The fact is that Mr Higgins is not “on the street because of a legal technicality,” indeed he is not on the street at all, and if he ever is it may well be just to hobble a few yards behind a zimmer frame. It is probably more likely that he will die in prison.

Dame Vera wants to make it possible to retry people who have been acquitted of offences committed as part of what she calls the “typical activity of the child abuser.”

Her letter to the Justice Minister singles out “Sections 7,8,9 and 10 of the Criminal Justice Act 2003,” which do not in fact “cover sexual offences against children,” as she says, but relate to the law on holding people in police custody and obtaining “non-intimate samples” without consent. Somewhat awkwardly she has muddled up the Criminal Justice Act with the Sexual Offences Act passed in the same year, but, to be fair, we’ve all done things like that and her drift is clear enough.

The rule against double jeopardy – which Mr Nocivelli calls a “legal technicality” – is in fact a rule of law going back at least to Ancient Greece and Rome, and recognised in most jurisdictions in some form, other than those of despotic regimes like the People’s Republic of China. Put simply, you cannot – absent special circumstances such as corruption of the trial judge or jury – be tried twice for the same offence, even if new evidence turns up after your acquittal. It is spelt out in the Fifth Amendment to the US Constitution:

“[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb…”

and it appears in a much watered down form in Article 4 of the European Convention on Human Rights.

The crispest modern explanation for the rule was that of the US Supreme Court Justice Black in 1957:

“… the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty.”

There is very little in life that compares to the stress and misery of fighting a serious criminal case. Here is Harold Greenwood, a solicitor tried (and acquitted) for poisoning his wife in 1920:

“It is an ordeal that can never be realized except by those who have been through it. After being worn out with some days of unparalleled strain in the earlier stages of the trial, the prisoner ‘goes into the box’. The eyes of the crowd watch every motion, the twitch of his face, and the fluttering of his hands. He knows that he will be exposed to a pitiless hail of questions from an expert in the art of interrogation. If he answers too fully he will be admonished to be more ‘direct’; if he answers briefly, a raised eyebrow or the inflection of a voice, the darting of a meaning look by counsel at the jury may influence their minds.”

Admittedly Greenwood faced hanging if things had gone wrong, but one would imagine that it’s still pretty unpleasant to stand trial when “all” that can happen is total ruination and many years in prison. It was the view of Lord Loreburn LC¹ that “it approaches the confines of torture to put a man on trial twice for the same offence.”

In 2003 the absolute rule against the double jeopardy rule in England and Wales was abolished for a small number of extremely serious offences, principally homicides, rape (including “statutory” rape of young children), and a few others all carrying a potential a life sentence. If “compelling” new evidence comes to light after an acquittal, the Court of Appeal can now quash the acquittal and order a retrial. It does not happen often (apparently only around 16 times since 2003), and when it does it is usually because new DNA evidence has been found.

If Dame Vera and Mr Nocivelli’s proposal is accepted, then at a stroke, the double jeopardy rules will be very dramatically relaxed. Potentially many more historic sex cases will be brought to court, against those already acquitted, or indeed against those, like Mr Higgins, already convicted. The “compelling” new evidence won’t be DNA evidence (because there virtually never is any in historic sex cases); it will be further complainants who did not give evidence at the original trial. That may be good for the accusers – who will not necessarily be victims – and good for the business of abuse lawyers like Mr Nocivelli, but it would make Britain’s double jeopardy rules amongst the weakest in the civilised world. From a complete ban on double jeopardy prosecutions we will have slipped towards their normalisation. Yet another safeguard against oppressive prosecution will have been allowed to fall away.

Demands for the tougher treatment of “criminals” are easy to make, and almost always popular to implement. Resisting them requires political courage. Anticipating an imminent election, Boris Johnson has called for longer sentences, implying that only “left-wing criminologists” could possibly object. I am not sure that he is right about that: calls for the tougher treatment of those accused or convicted of sexual crime are amongst the few things that unite the traditional Conservative “law’n’order” right and the “woke” left.

Even after the Carl Beech trial there are few votes to be gained by standing up for the rights of those accused – or still less convicted – of serious crimes.

Yet there is in fact a heavy price to pay. Many proposals which seem innocuous or even sensible considered in isolation, are part of a process by which the right to a fair trial – what Americans call “due process” – has been, and continues to be, eroded.

Over the last 35 years there has been a gradual revolution in criminal evidence and procedure. Almost all the innumerable changes have favoured the prosecution, or those who might loosely be called “victims” (although of course not every accuser is a victim), and disadvantaged the defence. The one obvious exception – the Human Rights Act of 1998 – has had some modest effect, but overall it has done little to slow down the ratcheting away of the rights of suspects, defendants and prisoners.

To give just some examples: the right to silence in police interviews without risking subsequent adverse comment has been abolished, defendants are required to reveal the detail of their defence months in advance of trial, the prosecution are no longer required to disclose relevant unused material if they judge that it does not undermine their case or assist the defence, the discretion of a trial judge to declare a prosecution an “abuse of process” because of the passage of time has almost entirely disappeared, the right to challenge jurors without cause has gone entirely, the mandatory judicial instruction to look for corroboration in sexual cases has been abolished while the scope of cross-examination of complainants in such cases has been severely restricted, evidence of a defendant’s bad character is now commonly allowed, the admissibility of “similar fact” evidence has become easier, hearsay evidence is now permitted much more readily.

Other changes to criminal procedure have taken place without any debate or even changes in the law, not least the steady – and now almost universal – introduction of bullet-proof glass cages in which defendants are required to sit during their trials. Visitors from the United States, where “docks” of any kind are considered unconstitutional, are horrified to see defendants (who should be treated as innocent) humiliated, cut off from their lawyers, sometimes unable to hear the evidence clearly, and displayed to the jury as though they were dangerous wild animals.

At the same time huge efforts have been made to make giving evidence for the prosecution easier: witnesses (although not the defendant) are routinely allowed to give evidence from outside the courtroom via video link and (in part) by pre-recorded “ABE” interviews conducted in an atmosphere far removed from the solemn formality of a trial. In some rare cases defence advocates are now even required to submit their proposed questions to “vulnerable” witnesses in advance for the judge’s approval; now that this principle is accepted it would not surprise me in the least if Dame Vera, or some future Victims Commissioner, came up with the idea that more cross-examination should be pre-approved in this way in order to avoid “unnecessary trauma to victims.”

Financial restrictions have bitten on the ability of the police to investigate, which damages innocent suspects at least as much as genuinely aggrieved victims, and relentless cuts to criminal legal aid mean that defence solicitors have a financial incentive to process cases as quickly as possible without carrying out the time-consuming and meticulous preparation that a proper defence requires. Criminal legal aid is no longer even available at all if your annual “disposable” household income (which includes that of your partner) exceeds £37,500; whilst another iniquitous rule ensures that those forced to pay for their own defence are virtually certain to be left hugely out of pocket even if they are acquitted.

And if they are not acquitted, either because they are guilty or because they were wrongly convicted, defendants will receive much longer sentences, even before Mr Johnson’s review of sentencing takes effect. A “sentencing council” has been created to ensure “consistency” in sentences: in this it has been largely successful and sentences have become consistently more severe. The introduction of a prosecution right to appeal against unduly lenient sentences has had the same effect (Dame Vera, incidentally, wants to extend that right still further). Prison terms for almost all offences have increased: the average sentence in 2018 was 57.1 months, not far off twice as long as it was just ten years earlier. As a result, the prison population has risen steadily from about 45,000 in the mid 1990s to over 83,000 today. As is often pointed out, and just as often dismissed with a shrug, England and Wales now has the highest number of prisoners per capita in Western Europe.

Over recent years the increase in the numbers of prisoners has been accompanied by a reduction in spending on prisons, with the result that some of our gaols have become so disgusting, dangerous and degrading that a court in Holland recently refused to extradite a suspected drug smuggler back to this country. Mr Johnson’s government intends to increase spending to make space for another 10,000 prisoners.

Finally, if you are innocent and trapped in our nightmare prison system, the last hope of getting your conviction over-turned is the now woefully neglected, under-funded and under-staffed Criminal Cases Review Commission. It receives around 1400 referrals every year. As recently as 2013 it had the equivalent of 8.6 full time commissioners: now it has just one. In 2018-19 it referred just 13 cases (0.9% of the total it received) to the Court of Appeal, the second lowest number ever (the lowest being 12 in 2017). It has been reduced to virtual irrelevance. Who knows how many innocent victims of wrongful convictions there are in prison? However many there are, there is not the slightest indication that the Victims Commissioner cares about that sort of victim.

We do not need a Commissioner to demand more convictions and longer sentences. What is needed is someone charged with the duty of speaking out for the causes where there are no votes to be won: the fair treatment of suspects, fair trials, decent prisons, the plight of those falsely accused and wrongly convicted, and an effective system of appealing and reviewing convictions.

A shorter version of this article appeared in The Spectator, 16th August 2019