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All too often, justice itself can be the indirect victim of a ghastly crime. Court cases which shock the public and establishment can sometimes lead to demands for bad laws. The murders of Holly and Jessica started a process which culminated in the draconian Vetting and Barring Scheme. And after the recent conviction of Levi Bellfield for murdering Milly Dowler, influential figures are calling for greater limits to the right to cross examine witnesses.
By all accounts, the family of Milly Dowler had an awful time in the witness box. In pursuing the possibility that Dowler had run away from home because she was unhappy, Bellfield’s solicitor intruded deeply into the personal lives of her family. The chief constable who lead the investigation has said that he is “upset and embarassed” by the way in which the courts treated Dowler’s family and called for reform. Meanwhile Keir Starmer – head of the Crown Prosecution Service – has said that “tghis trial has raised some fundamental questions about the treatment of victims and witnesses in the court process.” Furthermore, the Victims and Witnesses Commissioner Louise Casey has made her displeasure known.
None of these figures, of course, are neutral. The police are hardly renowned for their interest in the welfare of defendants. Meanwhile, as the man employed by the crown to secure convictions, it is perhaps not Keir Starmer’s prerogative to opine on how suspects ought to defend themselves.
As David Allen Green points ought there are already substantial safeguards in place to prevent unnecessarily harmful lines of questioning. In the interests of justice, we must, in my opinion, be very cautious before we further limit the right to cross examine.
If we are to treat people as innocent until they are proven guilty, a fundamental tenet of this is that people are given all reasonable means to challenge the case against them. Especially when people are staring at the possibility of a substantial prison sentence, this surely must take precedence over the feelings of witnesses.
Too often, questions of how courts operate are discussed in terms of defendants or “criminals” versus victims. To do so, ignores a hugely important third party: namely the state. The state has enormous resources – the police and the CPS – with which it can build a case against a citizen, and has 80,000 prison cells at its disposal. Against this, the right to cross examine those called by the crown, represents a crucial check on its power to punish and coerce.
The proposals being discussed now are rather different from the previous legislation passed under Tony Blair which limited the ability of rape defendents to question the sexual history and wider sexual behaviour of their accusers. This legislation was passed not to protect the feelings of alleged victims – as is being suggested in the aftermath of the Milly Dowler case – but to ensure that jury’s reached their decisions properly – that their judgement as insulated from prejudices against “loose women”. Nonetheless the inflexible nature of the law has created problems. Recently a defendant was prevented from communicating that his accuser was a prostitute (rather than just “a woman he had met) and that he had declined to pay, causing her to threaten to accuse him of rape – a threat which she had carried out – since explaining this would involve referring to her sexual history.
Imposing new limits on the right to cross-examine, especially on the back of a painful and awful murder case, is surely a surely a dangerous step for those who find themselves innocently accused, and for civil rights in general.
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