Alive and well

Now in the news we have the contro-versial trial of two boys for attempted rape. Much has been made of the wisdom of prosecuting children so young for such a serious offence. Many say that in some circumstances it is not possible to draw a clear line between horseplay '“ 'doctors and nurses' in this case '“ and criminal activity. Such then are the criticisms that the law should not be involved and this could all be sorted out by a stern 'fireside chat' and a strict warning to keep their little hands to themselves. But, as usual, everybody commenting does not know the facts. Highly experienced prosecuting counsel, and a very senior and experienced CPS team, no doubt thought long and hard before bringing the case and '“ let us not forget '“ securing convictions.

Let us also not forget that the criminal law requires a guilty mind as well as the act, and so the jury must have been sure that the defendants knew what they were doing was wrong but went on to do it anyway. What happens next is a tricky sentencing issue '“ but again we have a very experienced judge who will be greatly assisted by the relevant agencies.

Everyone's an expert

What is it about the law that provokes such wise second-guessing? I do not drive over Waterloo Bridge and spend the journey across worrying whether the civil engineers have sunk the piles properly or got the stress loads right for the concrete. I rather assume that they knew what they were doing; the same applies for tall buildings, the dentist, lunch in a restaurant and so on. However, when it comes to the law, everybody is an expert.

The fact that many childhoods involved furtive games of 'doctors and nurses', I doubt that many involved attempted rape. Some young people do cross the line of criminal conduct. And most do not. When it does happen we need to deal with it properly '“ and that could well mean a sympathetic disposal to do justice to the situation. Saying that in the old days a case would not have been brought is not an answer. In any event we now have the ability to call and test evidence from vulnerable witnesses. Vulnerable witnesses can be extremely good witnesses, in the same way that defendants can be very bad witnesses when they are exposed to cross-examination and the boot is on the other foot.

Placing trust in the the trial

We really do need to trust the trial process more. We need to trust the judgements of those who make difficult decisions and we need to trust juries. Juries acquit far more than they convict, and of course they have got some cases badly wrong '“ although how much of that is the fault of the participants in presenting the evidence is another matter.

We do have a good system, particularly when you look at many other jurisdictions. We are not terribly slow and we are certainly not corrupt.

If we do want to worry about our system at all then it is more in the realms of funding '“ in the climate to come of swingeing cuts we must make sure that the integrity and safety of our system is not compromised. I am not talking about fees here, but just the way things are done.

Robust and reasonable decisions

We need to maintain the separation of functions between police, prosecutor and advocate. A three-way decision-making matrix means robust and reasonable decisions are made; the victim and the witnesses are well represented by the police, as are the practical problems; the CPS have the public interest; and the advocate has the evidential sense and the sensitivity to the trial process and the jury.

Defending, it is important to work as a team and the solicitor should remain engaged when it comes to tricky decisions, as well as the client. Anything which waters down these relationships does a disservice to the safety of the system.

If it comes to us dispensing with juries or changing the rules to make things cheaper in some way then we will have something to worry about and profoundly so.

Our system is not perfect and we should not be complacent about it. But at the moment our system is alive and well, and the recent convictions demonstrate that '“ not undermine it.

Copyright & permissions