Thursday, 6 June 2013

Victim - Driven Prosecutions: A Dangerous Path

OK, a controversial view of mine. As a former prosecutor I've dealt with hundreds of victims of crime over the years. Some of their stories were truly tragic, ranging from battered spouses to old ladies who had their life savings stolen by their drug-abusing grandsons. It happens, folks.

But the decision on whether or not to proceed with a case was always taken coldly, assessing the evidence and, in accordance with the CPS mandate, whether a conviction was a reasonable prospect based on the evidence. Emotion never came into it. Then came directives from on high that victims should be consulted when cases were dropped. This often meant that when something changed on the day of trial (another witness who refused to attend on the day for example) the prosecutor would have to 'negotiate' with a victim on dropping the case. This was always a difficult process.

My decision would always be based on the fact that in my assessment it was actually highly unlikely we'd secure a conviction based on the new situation. However I've lost count of the number of times I was 'forced on' at trial by a victim (or more accurately an alleged victim) that refused to budge and wanted his/ her day in court. As a result, court time was wasted, as was the cost to the public purse. In one case we had a three day trial that went ahead at the alleged victim's insistence only for the case to inevitably be lost. It was just too weak - and always was.

So it was with some alarm that I read recently the DPP, Keir Starmer proposes victims be allowed to actually challenge the decision not to prosecute. This is either an admission that prosecutors often get it wrong or political posturing - being seen to make the right noises on victims of crime with an election looming on the horizon. Possibly both.

In my experience, there are already checks and balances within the CPS to ensure that the decisions taken are the correct ones. The prosecution of serious cases tend to be decided by high-ranking, very qualified and able prosecutors. The decision not to prosecute is never taken lightly and I have never once encountered a case that should have proceeded to trial but was binned unjustifiably, even though I accept that on rare occasions this does happen. It's hard on true victims of crime but the CPS has a duty, not just to victims, but to the whole criminal justice system, and that includes defendants and the courts in which they are tried.

I saw a case recently in which a defendant's case didn't proceed to trial because he was certified by a number of independent expert witnesses to be suffering frm brain damage as a result of an unrelated assault. The alleged victims and the media were in uproar and the local MP was clamouring for a change in the law - presumably to allow defendants with mental impairment to be put on trial.

I'm all for alleged victims having input into cases - in particular when they can actually be deemed to be victims after a guilty plea or verdict when their impact statement is taken into account, but in my view alleged victims already have more than enough say in prosecutions, and the CPS should remember that it's their responsibility to decide on the merits of a case by assessing the evidence dispassionately. That's the only way true justice for victims can be achieved.


I spotted a recent case from Canada recently in which the Ontario Court of Appeal gave a lower court judge a sever reprimand for interfering during a trial. Apparently, this meddlesome judge made 'improper and umwarranted interjections' that actually led to a miscarriage of justice.

Now I can't claim to have ever been involved in a case in which judge interference has led to such a result but I've certainly had my fair share of busybody judges who actually don't have a clue about their actual role. They see themselves as inquisitors, diving right into the arena, regardless of what the advocates in the well of the court are trying to achieve.

Almost always, it's frustrating at least and disastrous at worse.

Of course, part of a judge's role is to inquire into the case and ask questions when necessary - and there are times when counsel's performance is under par. But it's a fine balancing act that many can't get to grips with at all. As former lawyers themselves they just can't help but become embroiled in the cut and thrust of proceedings.

So a word to anyone who sits as a judge of any kind - rise above it all. Don't enter the arena and when you have competent counsel in your court let them do their job. You'll find it easier to do yours.

Tuesday, 19 March 2013

After 50 Years, Gideon v Wainwright Hasn't Delivered

It was a case that promised so much but in reality has delivered so little. In 1961, Clarence Gideon was charged with burglary of a Florida pool bar. Unable to afford counsel at his trial he was unrepresented and ultimately found guilty. Sentenced to five years' imprisonment he appealed the decision to the Supreme Court of the United States on the ground that the Florida law denying him counsel was unconstitutional.

The Justices agreed, Gideon was retried and acquitted.

But in reality the funding simply hasn't materialized to allow poorer defendants representation in some criminal cases. Of course, it's not a political priority and the public at large have little sympathy for those charged with committing criminal offenses.

But the case was a landmark and should be celebrated as such. Allowing an accused person access to an attorney regardless of their means is a fundamental principle in a civilized society. There's an excellent video here from CBS in which Professor Norman Dawson is interviewed.

Thursday, 7 March 2013

Yeee-Hah! I'm Texan For A Day

I often marvel at some of the crazy laws that get passed by state legislatures in the South. From restricting the teaching of evolution in schools to liberal gun laws, Texas is probably the biggest culprit.

But now it seems the good 'ol boys have actually got something right for once with their proposed new law banning the buying and selling of shark fins.

This rotten  trade is stimulated by an obscene demand from Asians for a soup that doesn't even taste that good. Sharks in their millions - yes, millions - are being fished live, their fins hacked off and their bodies kicked back into the water. No wonder world shark populations are falling dramatically, with many species at serious risk.

So Yeeee-Ha!! I'm a Texan for today. The full story is here:

Wednesday, 6 March 2013

Elder Abuse - We Should All Be Annoyed

Picked up on this story recently:

Lawyer asks jury for millions in elder neglect case:

 ...and it got to me. As someone whose parent died recently from Alzheimer's it struck a chord. OK, the Plaintiff's lawyer was over-playing on the emotions of the jury just a little but I have to say I'd take his figure...

...and double it.

How To Prosecute A Dead Person...

Not hard if you're in Russia. What a story.....and these guys think they're a modern democracy?

Echoes of Stalin as dead lawyer goes on trial in Russia. Yes, really:

Thursday, 11 October 2012

CA Prop 36: A Change is Long Overdue

Californians will get the chance to revise the well-publicized 'Three Strikes Law' that was passed by their legislature 18 years ago. This video accurately sets out the issues (sorry about the 15 second ad that precedes it). Depending on your browser the play button may not work - just click on the pic:

Surely this change is for the better. Mike Reynolds's story is a tragic one but his reasoning that we as a society should lock people up almost indefinitely 'just in case' they commit offences is obviousy flawed.

Surely the whole tenet of the original legislation was to keep repeat violent / sexual offenders away from the public and Prop 36 won't change that. By depriving someone of their liberty for virtually the rest of their natural lives for minor offences is almost a 'two-and-a- bit-strikes' law and cannot be what legislators or the public intended.

Let's hope that justice is done.
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