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.
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