Monday, June 27, 2011
Justice: RIP? | Beneath The Wig.
In the wake of Levi Bellfield's conviction for the murder of Amanda ("Millie") Dowler, I have been conducting an unpopular defence of our adversarial system of criminal trials over at the excellent blog of Inspector Gadget. It's an important issue. Our rights to be presumed innocent if accused of a crime and to have our arguments put vigorously in open court to an independent judge and a jury of our peers are more important than our right to vote. Before anyone indignantly tells me that we owe those rights to politicians, please remember they predate democracy in England by centuries. The right to choose our masters is less valuable than the restraints on their power. Democracy itself has, after all, proved to be no restraint, as politicians bribe election-swinging minorities of voters with cash extorted violently from others.
The debate at Gadget's gaff has been depressing. If some of his readers are representative of Britain's police, our ancient rights are neither understood nor valued by a constabulary that would give us up to Continental style inquisitors in a heartbeat. The Bill, it seems, regards defence lawyers as the enemy; stereotyping them coarsely as mercenaries who profit from keeping offenders at large. That part, at least, is sadly not surprising to me. Burglars stole all our wedding presents in the weeks after our marriage. At the time I was practising (as I did for one year after qualifying) as a criminal lawyer. Mrs P. and I have a sad, humiliating memory of our tiny flat full of amused police officers (including an inspector). They showed up to gloat when they learned over their radios both that a criminal defence lawyer had been burgled and that he was living (we are self-made and were just starting out) in entertaining poverty. There was scarcely room for the scene of crime officer to dust the place for prints.
Even more depressingly, the influential Conservative blogger Ellie Seymour has failed to live up to her surname and joined the blindly sentimental tabloid frenzy claiming that the treatment of the Dowler family by Levi Bellfield's defence team amounted to a "travesty of justice". In particular she calls for defendants to be forced (at gunpoint, Ellie?) to testify. If neither our Conservatives nor our policemen understand or value the presumption of innocence and our open, adversarial system of justice, what hope is there for Liberty?
I was girding up my loins to write a piece here summarising my comments elswhere, when I read the linked post. It makes further effort on my part redundant and I hope as many people as possible read it. It is an important antidote to the sickly, cloying, Oprah Winfrey-style, sentimentalism of the media coverage of the Dowler family's ordeal. Hypocritical coverage given that the media's sickening pandering to the prurience of the British public made it an ordeal. Not to mention of course the prurience of the investigating police officers which had them taking their eye off the ball (the metaphorical ball, not the one in the father's gag).
I can't help but feel that the hue and cry for Bellfield's legal team is a cynical attempt to distract attention from the failings of others. The cosseted, self-esteem-laden products of our "all must have prizes" education system and our "no-one must be offended" victim culture may whinge and moan about the rigours of a trial their yeoman ancestors would have handled with courage. Our political class may curry favour with the ignorant by betraying the rights that made us free. Our journalists may sell papers with prurience and hypocrisy. Our constabulary may seize the chance of using a hard case to demand bad laws to make their lives easier (and ours more dangerous). But justice has, for now, been served. I am not optimistic, given all I have read, that it will always be so in this country.
I agree with you. The Dowlers had a horrible time in court to cap a horrible decade, but when a man's liberty is at stake, a harsh cross examination must be expected.
Posted by: Single Acts of Tyranny | Tuesday, June 28, 2011 at 08:46 PM
The debate at Gadget's gaff has been depressing.
If some of his readers are representative of Britain's police, our ancient rights are neither understood nor valued by a constabulary that would give us up to Continental style inquisitors in a heartbeat.
Spot on. The attitudes there are of officers who sincerely believe that they are better than all of us "MOPs", that we are indeed fortunate to be blessed with their beneficent oversight of all that we do.
The suggestion that they may have erred, or that we may have free will, is not one wisely made. If they are representative of our Police, then reform is long overdue.
Posted by: patently | Tuesday, June 28, 2011 at 12:59 PM
Both is best, clearly.
Posted by: Tom | Monday, June 27, 2011 at 11:58 PM
Thanks Tom, I'd been thinking the same.
Nice to know I was not alone.
Posted by: Andrew Duffin | Monday, June 27, 2011 at 09:02 PM
"A few months ago I interviewed a burglar (8 previous convictions) "
Stop right there! That's the problem. Lock these fuckers up and keep them locked up. Every time I see a crime story, I want to know what else he's convicted of and when did he get out.
Posted by: Trooper Thompson | Monday, June 27, 2011 at 08:19 PM
The right to choose our masters is less valuable than the restraints on their power.
Yes, that seems about right in my book but why not have both?
Posted by: jameshigham | Monday, June 27, 2011 at 07:37 PM
I can picture the fuss from the press even now, bearing in mind their stern defence of their unfettered right to titillate during the Ryan Giggs fiasco. Personally, I would be open to giving the judge even more discretion than that, thus limiting the ability of the appeal court to overturn the verdict and direct a re-trial. Where trial judges err in giving defence counsel too much leeway, it's because they don't want to give any excuse for an appeal.
Posted by: Tom | Monday, June 27, 2011 at 04:09 PM
Thanks for that encouraging comment. I can understand the cynicism of serving police officers. Dealing with the worst of humanity daily is bound to darken your world view. I can understand the mistrust of defence lawyers too, but as I have been trying to bear witness here and there, I don't think it's usually justified.
There's a big difference between not believing a client and knowing his story is a lie. A year of criminal defence work was a good liberal education for me. Sometimes I learned in court - telling a story I had disbelieved - that the client was telling the truth.
The adversarial process can end up looking like a game to onlookers but it's a tried and tested way of uncovering truth. Every human society has been wrestling with this issue for millennia. I still believe our system (while as imperfect as all human endeavours) is the best devised so far.
Posted by: Tom | Monday, June 27, 2011 at 03:39 PM
Gadget's blog is depressing, or rather many of the comments in it are. Sadly all too often a display of the arrogant knuckle-draggers who clog the writing rooms in too many police stations. (I say this as a serving frontline uniformed response officer by the way).
Some of the types of officers who can't write proper sentences or use paragraphs in their evidence but who apparently know more than everyone else in the CPS, courts, management, supervision, media, and the legal system put together.
Too many police are ignorant of the important details of the law and PACE, let alone the key principles behind the British justice system. I think if you asked most of them what the difference between an inquisitorial and an adversarial system is they would just look at you like you'd farted.
That said, when police officers see criminals and their victims first hand in all their violence and depravity it grates somewhat to see someone paid good money to stand up in court and stick up for them and try to defend what is often morally indefensible. When you hear a brief defending someone after their 30th conviction for the same crime with the same old sob story it does not inspire confidence, but contempt.
A few months ago I interviewed a burglar (8 previous convictions) whose fingerprints were found inside a burgled house. He came out with an elaborate story about starting a window-cleaning business which worked well until it was revealed his prints were found inside the window pane and not outside. After the interview his brief remarked "well that's the biggest burglary jackanory story I've ever heard", but she was still there in court maintaining his innocence a few weeks later. It's things like that which inspire mistrust and resentment towards defence lawyers.
The alternatives however are too bleak to contemplate, since as you rightly point out the cost of any alternative would be to dispense with innocence until guilt proven. No easy solutions.
Posted by: PCT | Monday, June 27, 2011 at 02:59 PM
Tom I have always been the first to knock your profession when it comes to drafting legislation by our government to curtail our freedoms. I have only been in court twice as a witness where the wrong decision was given on both occasions.
When a case of murder is involved all evidence must be on the table. I would suggest that when embarrassing but legal activities arrive concerning a witness, the judge should have the authority to embargo its publication if it has no bearing or relevance to the conviction of the accused. A fair and just trial should be the goal of civilized society.
Posted by: Peter Whale | Monday, June 27, 2011 at 11:23 AM