Why ‘victim’s rights’ are bad for justice
Why is the state keen to stand up for victims in the justice system? Because it wants to boost prosecution rates.
‘Victims and witnesses are not at the heart of the [justice] system – if anything they are the poor relation.’
So said Louise Casey, Tony Blair’s former ASBO tsar, and since March 2010 the UK’s Victims’ Commissioner. Speaking in July last year, Casey was just about to start work on a report into the treatment of those bereaved by murder, manslaughter and culpable road death, which aimed to rectify victims’ and witnesses’ poor-relation status. Her solutions were manifold: no longer would the bereaved lack official support in court; no more would complex sentencing perplex the victims of crime; and no longer would ‘specialist trauma counselling’ be difficult to obtain. Moreover, legal participants in the trial itself must learn to pay due respect to victims and witnesses. The manner and nature of questioning must not be excessively intrusive. It must not humiliate.
Few if any of the Victims’ Commissioner’s objectives have changed following the report’s publication yesterday. To her year-old assertions, Casey has merely added putative empirical evidence. There can be no doubt, she is saying, that the bereaved, the victims, the witnesses, are suffering as a result of the current justice system. The stats stack up. One in five of the victims’ families ended up with a family member becoming an alcoholic. Four in five families suffered trauma-related symptoms. And three in five families ended up in financial difficulty. And the reason for this insult heaped upon often tragic injury: the justice system just doesn’t care a hoot for victims and witnesses.
Casey’s case against the apparently problematic treatment of victims within the justice system was helped by the recent trial of Levi Bellfield for the murder of MillyDowler in 2002. During questioning of Milly’s father, Bob, Bellfield’s defence lawyer refused to spare the sensitivities of the Dowler family. Instead, focusing on Milly’s discovery of one of her father’s porno mags, the barrister suggested that Milly was a ‘dark, unhappy and troubled person’ and that her family life was not as happy as it seemed.
Scandalised, Casey seized upon the treatment of Bob Dowler as being indicative of the justice system’s ill-treatment of victims’ families. ‘Here is someone’, she said, ‘who doesn’t want celebrity, whose daughter has been killed, but is being vilified and humiliated. It is completely incongruous and unnecessary.’ She continued: ‘We need to find a different way into the system that looks at, with equal vigour: how can we care for the victims and witnesses in these cases, while testing the evidence, and how do we protect privacy as well?’
The answer, it seems, is to be a bit less harsh on victims’ families during the trial itself. Witnesses are people, too. ‘I’m not saying, “Never go personal”’, said Casey, ‘but if you do go personal, then, for goodness sake, think about the dignity of the people involved’.
The Crown Prosecution Service seemed happy with Casey’s report and her accompanying comments about the treatment of Bob Dowler. Which is hardly surprising. The changes to the adversarial process would surely help to get their prosecution rates up. Nodding in agreement, the director of public prosecutions, Keir Starmer QC, said: ‘I already require prosecutors to treat victims and witnesses respectfully and to ask the court to stop inappropriate questioning of prosecution witnesses. But I now want the CPS to go further and enhance the service offered to bereaved families.’
There is no doubt that certain lines of questioning during a trial are upsetting for the bereaved. There is no doubt that at points certain revelations teased out by a determined defence lawyer might be humiliating for still-grieving family members. Such revelations might even constitute a violation of someone’s privacy, as Casey claimed of the Bob Dowler questioning during the Levi Bellfield trial. But – and here we approach the nub of the matter – it is better to have a violation of privacy, no matter how embarrassing it is, than for an innocent man to lose his liberty. And that goes for any possible humiliation, or hurt, or upset that the bereaved might suffer during a trial. For what is important is that the defendant gets every chance to force the state to prove his or herguilt beyond reasonable doubt.
This might involve pressuring prosecution witnesses. This might even involve asking difficult questions of the victims’ family members. But given the massive array of state forces already lined up against the individual defendant, from the police to the Crown Prosecution Service, it is crucial that the scales of justice are not weighted even further against that individual defendant. Because that is the danger of forcing the defence to take into account victims’ sensitivities when questioning and interrogating witnesses. The focus of a trial shifts from the state proving guilt beyond reasonable doubt to both sides having to ensure that the victim’s family is spared any more hurt.
Of course, no one can dismiss the suffering of those who have lost a husband or a mother or a daughter. And no doubt such a loss can wreak havoc on a family years after a trial is done and dusted. Although whether trauma specialists and in-house counsellors will help rather than reinforce a sense of suffering is open to question. Still one thing is certain: the justice system is not to blame for the suffering of the bereaved. Bereavement is.
Tim Black is senior writer at spiked.