A New Vision for Victims, But Are Defendants Being Left Out in the Cold?
New article published by leading criminal defence solicitor Jim Meyer entitled “A New Vision for Victims, But Are Defendants Being Left Out in the Cold?”:-
UK Criminal Justice System Increasingly Victim-Centric
The criminal justice system in the UK is increasingly victim-centric, aptly demonstrated by Justice Secretary Grayling’s new proposals to provide greater protection and support to victims of crime. The reasons for the focus on victims are many: to make the criminal justice system more user-friendly; to better protect genuine victims and vulnerable witnesses during criminal proceedings; pressure from the media and public; perceived failings in the system that result in high attrition rates, particularly in serious sexual offence cases.
Erosion of Rights of Defendants?
Whether such an approach is justified goes to the heart of the purpose of the criminal law – is to deter behaviour in the interests of the society as a whole, or to exact retribution in individual cases, or both? Regardless of the underlying justifications, recent changes to the criminal justice system creates a more real and present danger – the erosion of the rights of defendants, particularly the right to a fair trial.
‘…fairness means fairness to both sides, not just one…’
The voice of the defendant is increasingly being drowned out by public opinion and knee-jerk governmental action that seek to ‘empower’ victims, which combine to show an apparent disregard for the sound administration of justice. That the term victim is regularly used, which is only appropriate if a trial results in conviction, underscores the inherent bias.
Grayling’s latest raft of proposals is a recent example of some ill-thought out changes. While some of the proposals are commendable, such as establishing a nationwide Victims’ Information Service, others relate to changes in procedure that may undermine the substantive rights of defendants. For instance, rolling-out a scheme for the pre-trial cross-examination of child victims raises serious practical difficulties for effectively challenging the credibility of evidence. There is also a proposal to introduce a requirement for publicly-funded advocates to undertake specialist training in order to represent defendants in serious sexual offence cases, potentially weakening the right to choose legal representation.
Yet it is arguable that the damage has already been done. Defendant rights are constantly sidelined in an attempt to appease the media and public who believe that the criminal justice system fails to address serious criminal cases and the needs of complainants. It is obviously essential that those involved in criminal cases be sensitive to the needs of the parties, but easing the trauma of the criminal court process through special procedural rights must not threaten substantive rights and the overarching fairness of the proceedings.
Loaded Dice – The Problems with Special Measures
The right to a fair trial encompasses a number of principles aimed at ensuring that the prosecution be given a fair opportunity to prove their case and that the defendant be given a fair opportunity to rebut it. The privileged position of the Crown means defendants are afforded particular protections: the presumption of innocence until proven guilty, the right to defend oneself and legal representation, and the right to examine and test evidence.
Perhaps one of the most recent controversial developments in criminal procedure has been the introduction of special measures that allow the court to adapt its procedure to better accommodate vulnerable witnesses. Under the Youth Justice and Criminal Evidence 1999 and other primary legislation, witnesses may give evidence from behind a screen or by live television link, or a video recording of an interview may be admitted as the witness’s evidence-in-chief.
Importantly, the court can only make a special measures direction if it won’t inhibit the effective testing of evidence and thereby cause prejudice to the defendant. Although this may seem like an adequate protection to the right to fair trial, many practical problems arise, particularly in regard to section 28.
Not yet in force, but currently being piloted in the Crown Courts, section 28 allows a complainant to be cross-examined away from the court setting altogether, perhaps even on different days from when the trial is being held. Although the pilot itself is controversial, Grayling’s recent proposals go even further, with a commitment to roll-out pre-trial cross-examination by 2017.
The problem is that pre-trial cross-examination doesn’t allow for the fact that sometimes third party evidence comes into being that would mean further and necessary cross-examination. Indeed, in some cases, cross-examination of a complainant is so weak (because the judge will not allow any kind of aggression towards a complainant) that it is almost useless.
All these issues are further compounded when applied to allegations of historic abuse. Not only are issues of delay and prejudice particularly acute, but there is unlikely to be any scientific evidence such as DNA. The whole case will often, therefore, rest upon witness evidence. The right to a fair trial is particularly curtailed if such evidence is given using special measures – no effective cross-examination of the prosecution’s principal evidence can occur and the defendant is unable to rebut the prosecution’s case against them.
Protecting Defendants’ Rights in the UK
The current focus on victims’ rights and the procedural barriers being put in place in their name is a serious cause for concern. The criminal justice system should not be used as a political battle ground for winning public support, and all changes proposed by the government must be given scrupulous attention to ensure the substantive rights of defendants are protected.
For more information, please e-mail meyerj@tuckerssolicitors.com or contact Jim Meyer on 0797 322 6586.