‘Victims’ justice’ is no justice at all

In my previous piece about Sir Keir Starmer, who stepped down as head of the Crown Prosecution Service last year, I suggested he would probably return to life as a leading barrister, able to enjoy a life away from public policy. How wrong I was. Not only has Starmer been appointed to Labour’s new Victims’ Taskforce to draft proposals for a ‘victim’s law’, but rumour has it that he is considering standing for election as a Labour MP.

We should really have seen this coming. Starmer spent his time as director of public prosecutions (DPP) advancing a model of ‘victim-centred justice’, which has been championed by Labour since the 1990s. While Starmer may like to take some credit for a justice system which is more ‘focused on the victim than ever before’, it was Jack Straw, the then home secretary, who in 1999 said that he was ‘determined to put victims at the centre of the criminal-justice system’. Straw claimed the system had become dominated by the ‘defendants’ rights lobby’.

It was Straw’s Labour government that set about repealing many traditional defendants’ rights in the name of protecting the rights of the victim. Perhaps the most significant of these changes was the abolition of the rule on double jeopardy in 2005, which had prevented defendants being tried for the same crime twice. It is no coincidence that another member of the new taskforce is Doreen Lawrence, mother of the murdered teenager Stephen Lawrence, who fronted the campaign to repeal the ancient rule on double jeopardy. Labour also changed the rules to allow witnesses to give evidence anonymously and behind screens.

Starmer’s period as DPP confirmed that ‘victim-centred justice’ is a euphemism for repealing the traditional rights of defendants. And once you get into the detail of Starmer’s latest proposal, it is clear that his particular brand of reform has the potential to undermine the basis of our justice system.

Writing in the Guardian, Starmer said that the idea of a victim’s law would be to completely change the adversarial nature of our justice system: ‘The idea that if the prosecution and defence attack each other as fiercely as possible the truth will somehow pop out has its attractions, but for particularly young and vulnerable witnesses there are obvious downsides.’ He goes on to suggest a ‘blend’ of ‘adversarial and inquisitorial systems’ before floating the idea that ‘judges should be given the task of questioning young and vulnerable witnesses’. Elsewhere, he reiterated his commitment to making it compulsory for ‘professionals’ to report child abuse and suggested that the initial reporting of sex cases could take place outside of the police station.

Even by the standards of his authoritarian New Labour predecessors, Starmer’s ideas are loopy. He must know that judges questioning witnesses, or any mixture of adversarial and inquisitorial procedures, would be both unworkable and wrong. In England and Wales, the judge is supposed to be an impartial arbiter of adversarial proceedings. There are two elements to the examination of witnesses. Firstly, the lawyers test the evidence of the witnesses through questioning. Secondly, the defence lawyer puts the case for the defendant. This is why in courtroom dramas you will often hear the defence lawyer saying things like ‘you’re lying, aren’t you, Mr Jones?’. It’s not because they think they might get the answer they want, it’s because they are obliged to put their client’s case to the witness.

How would this process interact with a judge-led inquisition of prosecution witnesses? Is Starmer suggesting that a judge would take instructions from a defendant before questioning a witness on his or her behalf? How could the judge effectively question on behalf of a defendant and maintain his purported impartiality? The reality is that this ‘blend’ of adversarial and inquisitorial proceedings would amount to the defendant being further excluded from the proceedings, with the judge asking anodyne questions with no regard for the defendant’s case. It would be an egregious overriding of the defendant’s right to be heard.

If Starmer ever obtains any serious say over criminal-justice policy, it could spell disaster for defendants in criminal cases. He is so wedded to the idea that the perceptions and feelings of victims should be central to the administration of justice that he is content to bring an end to legal rights and protections for defendants that have taken centuries to win. The point of a criminal trial is not to bring closure to the victim. No legal process can do that. The central purpose of a criminal trial is to ensure that the guilty are convicted and the innocent are acquitted. But in the context of the Labour Party, which has sought to undermine this fundamental purpose of trials for over two decades, Starmer’s candidacy would be grimly apposite.

Luke Gittos is law editor at spiked, a solicitor practicing criminal law and convenor of the London Legal Salon.