Cherry picking

Does anyone else feel like King Canute, or is it just me? Standing on the sea shore, ordering the waves to turn back, turn back... while the encroaching tide of illiberalism washes away much of what we have held dear. Canute may have been demonstrating the limits of monarchic power and not mere idiocy, but the analogy holds good either way: all old fashioned civil libertarians can do at the moment is get their feet wet.

The document published on 3 November by the commissioner for victims and witnesses, Louise Casey, is another ripple in the waves. That, presumably, was its intention, and it certainly garnered tabloid appreciation of its two main recommendations: 'Stopping defendants delaying their guilty pleas to the last minute, and restricting the right to jury trial in some cases' (sic). The commissioner's big idea is that jury trial (referred to as 'a sacred cow') should be abolished for offences of 'petty' theft, and that the money thus saved should be spent on victims' services.

No winners

Casey, ex Asbo czar, has the same role within the criminal justice system as a piece of grit inserted commercially into an oyster '“ to irritate the host in the hope that it will respond by forming a pearl of great price. She was admired by Tony Blair for the very qualities which appear to have upset everyone else '“ best described here as robust and confident. And yes, the CJS can be complacent, insensitive and in need of a good kicking from time to time, and it is true that 'victims and witnesses' have not always been well served by the system. Shockingly served in some cases '“ their complaints ridiculed or sneered at by police officers, their cases dropped without explanation, generally misinformed and ignored.

But no one is particularly well served by the system: there is no category of CJS customer for whom life is a bowl of cherries. That aside, there have been radical improvements in the treatment of witnesses because of both statutory and practice changes, and we operate now in a very different seascape from the past. There is room for improvement, but the core of being a witness is what happens in court and that, in an adversarial system, cannot be done away with. Witnesses are called to give evidence '“ they must give it, and then they must be challenged. On occasions '“ or, rather, in 62 per cent of the 30,000 contested trials in 2009 '“ the defendant will even be acquitted.

Despite the headline grabbing catchiness of the slogan, victims are not 'at the heart of justice'. Justice is at the heart of justice, and justice is ill served by forgetting what the criminal trial is actually about '“ proof of guilt. Proof: not assertion. Of course those who assert that the defendant has committed a criminal act against them must be treated with respect, properly informed and consulted where necessary, and made as comfortable as possible in a difficult environment. If they have special needs or vulnerabilities, then the statutory measures must be properly employed to help them give their evidence as accurately and reliably as possible. But the fact that a person makes assertions must not be confused with victimhood, nor must victimhood be given an inviolate status which overrides fair trial rights.

The reality

Who is, after all, a victim? Someone to whom a wrong has undoubtedly been done, or someone who asserts this and has yet to be believed? No one, however evilly defence-minded they may be, disputes that serious cases produce serious wrongs '“ the obvious examples are the bereaved family in murder cases and injured children. As such they deserve compassion as well as civilised treatment in and out of court, victims from the start where the only issue for trial is who caused the harm '“ but those cases are a minority of the 1.79 million cases the CJS dealt with in 2009.

The majority of cases involve complainants, whose victim status has yet to be determined by a jury or a judge. Complainants, like defendants, come in all manner of guises: completely honest or mainly honest, a little bit dishonest, almost completely dishonest '“ quite apart from being just plain wrong or mistaken. And there is some posh backing for this revolutionary view of life in court: no less an authority than Lord Rodgers said, in Re D [2005] UKHL 4, where the issue was whether special measures were available for young defendants as well as crown witnesses:

'In an ideal world only honest and reliable witnesses would be called to give evidence in court. Relatively few crimes are committed, however, in front of disinterested, sober, upright members of the public. Therefore, in many trials, especially for crimes of violence, both the prosecution and the defence have to rely on witnesses who are anything but honest and reliable.

'For example, where the case arises out of a fight between rival gangs of 16-year-old youths, the prosecution witnesses will tend to be members of the defeated gang and their equally young supporters. Very often, whether out of misplaced loyalty or as a result of threats, some, at least, of these witnesses will give deliberately false evidence that is designed to conceal the actual course of events in order to throw the blame on to their opponents, the defendants. The defence witnesses will come from the victorious side and will often have precisely the opposite agenda.'

That is reality. What is also reality is that defendants can be victims too: what does the commissioner say about a defendant who spends nine months in custody before a swift acquittal by a jury who thought he was innocent, with no malarkey about reasonable doubt?