Accusing this judge of “victim blaming” is unfair, wrong and dangerous

On Friday 10 March 2017, HHJ Lindsey Kushner Q.C. drew a 43-year legal career to a close by detaining a rapist for six years. After 14 years on the bench, her final trial at Manchester Crown Court involved a set of facts grimly familiar to criminal practitioners, in which the defendant, Ricardo Rodrigues-Fortes-Gomes (19), led the 18-year old victim, who had been drinking lager and vodka and inhaling amyl nitrate, from a city centre Burger King to a canal bank, where she was raped. Her cries were heard by a witness in a nearby flat, who called the police.

The details are scantly reported, but it appears that there was a co-defendant, and it was said that they took turns to have intercourse with the victim on the canal bank. They each claimed that the sex was consensual. The co-defendant was acquitted while Rodrigues was convicted. (For those immediately curious as to how this might be, it should be emphasised that the burden of proof means that such a verdict is not a finding that the co-defendant was innocent and that the intercourse with him was consensual; all we can divine from the verdict is that the jury could not be sure that there was not consent (or reasonable belief in consent).)

HHJ Kushner Q.C.

Having passed a sentence of six years’ detention in a Young Offender Institution, HHJ Kushner Q.C. took her last ever sentencing remarks as an opportunity to share some wider observations. This is not uncommon; recent years have seen retiring judges use their last hurrah to shoehorn in some long-suppressed views about, for example, the crumbling Crown Prosecution Service. Given the trial over which she had just presided, HHJ Kushner Q.C. chose the topic of sexual offences on which to offer her insight. The remarks bear repetition in full, given the interpretation that has since been attached to them:

“We judges who see one sexual offence trial after another, have often been criticised for suggesting and putting more emphasis on what girls should and shouldn’t do than on the act and the blame to be apportioned to rapists…There is absolutely no excuse and a woman can do with her body what she wants and a man will have to adjust his behaviour accordingly. But as a woman judge I think it would be remiss of me if I didn’t mention one or two things. I don’t think it’s wrong for a judge to beg women to take actions to protect themselves. That must not put responsibility on them rather than the perpetrator. How I see it is burglars are out there and nobody says burglars are OK, but we do say ‘please don’t leave your back door open at night, take steps to protect yourselves’…Girls are perfectly entitled to drink themselves into the ground but should be aware people who are potential defendants to rape, gravitate towards girls who have been drinking.”

The judge also went on to remark that “potential defendants to rape” target girls who have been drinking because they are “more likely to agree as they are more disinhibited, even if they don’t agree they are less likely to fight a man with evil intentions off”. She said a woman would be less likely to report a rape “because she was drunk or cannot remember what happened or feels ashamed to deal with it”.

“Or, if push comes to shove, a girl who has been drunk is less likely to be believed than one who is sober at the time…It should not be like that but it does happen and we see it time and time again. They are entitled to do what they like but please be aware there are men out there who gravitate towards a woman who might be more vulnerable than others. That’s my final line, in my final criminal trial, and my final sentence.”

It did not take long for a flare to be sent up. This, it was swiftly asserted, amounted to classic Victim Blaming. Dame Vera Baird, former solicitor general and Northumbria Police and Crime Commissioner, told BBC Radio 4’s Today programme:

“When somebody is raped they feel guilt and shame and they find it very hard to report it. If a judge has just said to them ‘Well, if you drank you are more likely to get raped, we are not likely to believe you and you have been disinhibited so you’ve rather brought it on yourself’ then that guilt is just going to get worse.”

As reported by the BBC:

“Ms Baird said the judge should have given advice to help women stay safe instead of implying “it’s your fault for having attracted him in the first place”.”

“This looks like victim-blaming and they (organisations such as Rape Crisis) are worried that, yet again, it is going to become harder to get women to make reports. That’s a terrible shame.”

Similar sentiments were echoed by numerous charities and pressure groups. They were ad idem in their condemnation – the judge was blaming victims for the horrors that they suffered at the hands of their attackers. She was “telling women that they wouldn’t be believed” and “deterring victims from coming forward”.

This is the message that has since dominated the reporting of this story. And, with respect, it is wholly and dangerously wrong.

Victim blaming – ascribing moral fault to victims for crimes committed against them – is insidious and wicked for all the reasons correctly identified by Baird and campaigners. It wrongly seeks to diminish the moral culpability of the criminal by apportioning fault to the victim, in a manner unthinkable outside the arena of sexual offences; it increases the suffering of the victim; it deters present and future victims from reporting offences; and its logical conclusion holds that the solution to preventing these offences lies solely with the women who “invite” them, rather than the men who perpetrate them.

But it is not the same thing as seeking objectively to identify factors that increase one’s risk of vulnerability to crime, and urging awareness of those factors.

The sensitivity to perceived victim blaming in the criminal courts is understandable. The law – courts, judges and lawyers – has for centuries indulged in stark and blatant victim blaming. From the historical lack of respect and credibility afforded to “unchaste women”, to 1980s judges suggesting that a victim’s clothing or demeanour meant she was “asking for it”, to the fact that as recently as 1991 a wife could not in law be raped by her husband, the law has rightly been forced to update attitudes rooted in what is at best patriarchy and at worst institutional misogyny. And, while much has improved, it would be naive to assert that such attitudes can be comfortably boxed up as historical remnants.

The Fawcett Society earlier this year published a report suggesting that 38% of men and 34% of women surveyed said that a woman was “totally or partly to blame” if she went out late at night wearing a short skirt, got drunk and was the victim of a sexual assault. A High Court judge last year made comments, similar to those expressed by HHJ Kuschner Q.C., but with the added, ill-advised suggestion that the victim had been “foolish” to have exposed herself to risk. I criticised this on Twitter at the time as deeply unhelpful, representing, while not “victim blaming” as such, nevertheless a moral judgment of victims that we should strive to avoid.

It plainly still needs to be said, and should be said, loudly, clearly and repeatedly: It does not matter what a woman is wearing. Or how much she has drunk. Her body is her own. If you violate her autonomy, the responsibility is entirely yours. No-one else’s. She is not to blame for exercising her freedom. You will not, as happened in one notorious case in 1982 at Ipswich Crown Court, find yourself handed a shorter sentence on the basis that the victim is culpable of “contributory negligence” for putting herself in a position of vulnerability. Your crime is wholly your own.

But, to repeat the point – this should not be conflated with attempts to point out ways in which people can minimise the risk to themselves. The “locking your windows to keep out burglars” analogy often reached for in this debate, and indeed floated by the judge, carries an admitted crassness, comparing as it does a crime against property with an invasive sexual offence; but that does not diminish its inherent truth. Saying that there are common factors which are exploited by criminals is expressing empirical fact. It is not a value judgment on character or behaviour. It no more increases the moral culpability of the victim or decreases the agency of the offender than pointing out that going out without shoes increases your chances of cutting your feet on broken glass. You are not in any way morally to blame for someone else leaving broken glass on the floor, nor for expressing your right to dress as you please; the message is simply: here’s what experience teaches us you can do to minimise this risk.

In the instant case, it is obvious that this was all that the judge was doing. She was talking about a very specific type of offence which, although thankfully rare, crosses the criminal courts far more often than humanity can bear; namely, cases where a highly intoxicated lone young women is targeted by a predatory rapist due to her vulnerability. This is not a myth created by misogynist judges to frighten women into never leaving the house – it is an appalling reality. And what is more, as the judge carefully explained, the specific vulnerability of being blind drunk can be exploited not only in the commission of the offence, but a second time over by the defendant seeking to deny his guilt at trial. In the case that HHJ Kushner Q.C. had just heard, the guilty defendant had alleged consent. I can guarantee you that the defence barrister will have spent significant time in cross-examination tugging away at the minor details of that fateful evening to demonstrate how the alcohol had inhibited the victim’s memory in an effort to undermine the reliability of her evidence.

None of this, as the judge was at pains to say, is to in any way blame the victim for what happened to her. But it would be a nonsense to suggest that, in cases such as these, one’s vulnerability is not heightened by drinking to excess.

It is in many ways bizarre that at a time when there is a belated emerging social consensus that tackling “general” crime requires a multi-faceted approach, looking not only at the individual culpability of the offender but the broader environmental and causative factors that create the conditions for crime to occur, the tune of self-professed progressives is often one-note when it comes to sex offences. In political terms, emphasising that an effective criminal justice policy has to recognise the social and environmental factors that facilitate crime, and that so doing does not excuse the moral culpability of the individual, has been a gruelling campaign of the centre-left. It is usually the gravel-throated wails of the reactionary right that drown out attempts at nuanced assessments of crime that move beyond locating cause (as opposed to moral culpability) solely in the offender. But this is the adopted philosophy of those who shout down HHJ Kushner’s advice with the mantra of, “Rape is only caused by rapists”.

The choices of the offender are the largest part of the problem, of course. But it is blinkered to suggest that the solution to making the public safer lies simply in condemning louder and punishing harsher. Unpleasant as it is to accept, we will never eradicate violent and sexual crime. Never. There will always be people – usually men – who irrespective of the law, will rape. As long as we recognise that truth, it is incumbent upon us to help keep each other safe. This we do by focussing on the offender, and potential offenders, through social, criminal and penal policies combining education, deterrence, rehabilitation and punishment; but also by limiting opportunity for those who are determined to offend. A solution that focusses solely on the offender, asserting that there is nothing that can be done by the public to protect themselves, is no real solution at all. It’s cyclopic, prioritising the purity of The Cause ahead of pragmatic realities.

That, I fear, is what we are witnessing with this latest outburst against the judge.

And, again, in making these observations, I do not question the sincerity of the cause. And I understand why, whatever label one puts on the judge’s comments, it might still be suggested that they were not helpful. There is a justifiable worry that emphasising personal victim safety might deflect attention from the offender’s culpability in a way that is superficially extremely unattractive. One could argue that the prevalence of such remarks reinforce misnomers about sexual offending, and disguise more complex realities, such as the fact that the “stranger rapist in the bushes” is statistically rare, the offender and victim most likely to be known to each other. One might contend that the discussion about what steps it is objectively “reasonable” for a woman to take can easily fissure into normative value judgments about how women should act, or dress, or otherwise restrict their own liberties.

I would argue that none of those arise in this case – the judge’s remarks appear plain, sensitive and carefully targeted – but I can see why those who dedicate their lives to supporting victims may tire of what they perceive as an imbalance in public discourse, and wish that emphasis were placed elsewhere.

Nevertheless, whatever may fairly be tossed into the debate, and whatever deeper, noble motivations may pertain, the claims of “victim blaming” here are entirely unjustified. The ubiquity with which the term “victim blaming” is now thrown around, like “fake news” by a deranged faux-Presidential clown in a wig, risks degrading its meaning to “something we’d rather not hear”. Worse than that, it results in vital, non-judgemental messages about personal safety being lost in the din.

Judges and police trying to press home the message of personal safety find themselves like doctors telling a patient that there are certain environmental factors that increase their risk of vulnerability to a disease, and having their offer of advice angrily rejected as “victim blaming”.

In fact, it is worse than that. To stretch the analogy, Vera Baird’s words are akin to telling people: “If you go to see a doctor, you will suffer victim blaming.” Dame Vera, although I don’t doubt motivated by a genuine desire to improve the lot of victims of sexual offences, is becoming a repeat offender in this area, the first to heighten alarm rather than assuage concerns. The quote to the BBC, in which Ms Baird suggested that the judge had said “you’ve rather brought it on yourself” is, I’m afraid, simply untrue. Either Ms Baird did not read the remarks before commenting, or, worse, she did and has dishonestly misrepresented them to support her point.

It is a genuine shame that the publicity generated by the judge’s comments were not seized upon as a platform for a united message of support for victims, instead of being exploited as an opportunity for division and recrimination. Imagine if, instead of rushing to condemn this judge – who, with respect, will have a far deeper, broader and more objective understanding of the topic than many single issue campaigners – Vera Baird had said something like this:

“As this highly experienced judge rightly recognised, crimes of this type are always the fault of the offender. Furthermore, this type of rape is rare; but there are simple steps that we would urge people to take on nights out to increase their personal safety. Predators often seek out women who are drunk and alone and exploit their vulnerabilities. Of course go out, drink and have fun – but just take care. And, should the worst happen, please do not be deterred by media scare stories from reporting what has happened.”

It has been suggested that such advice is otiose, or patronising. As the Guardian was told by End Violence to Women:

“The group pointed out that women already take steps as a matter of routine. “They leave early, get taxis instead of buses, don’t wear ‘that’ top or ‘that’ skirt and they still get raped.””

And of course, the judge’s advice is not a panacea. It cannot and was not intended to be. But tragically the daily experience of the criminal courts shows that the message about personal safety still bears repetition. It won’t erase the problem, but it may help, in a narrow subset of cases, to save a few potential victims from having to pick up the fragments of their shattered lives off the courtroom floor. And if it does, it is a message which should be cheered by us all, with its judicial messengers celebrated rather than beaten into submission by misplaced accusations of “victim blaming”.

It’s not the police’s job to “believe victims”

I make plain at the outset that I will forever, until the untimely end of my days and beyond, harbour a residual affection for anyone, of any political persuasion, who tells Diane Abbott to fuck off. At any time of day, in any given context, this is surely always the right thing to do.

But today, Jess Phillips MP has made a boo boo from which I sincerely hope she will distance herself.

She was apparently responding to various media outings by Metropolitan Commissioner Sir Bernard Hogan-Howe, who, dodging the shrapnel from the implosion of Operation Midland, has formally announced a volte-face in the way police officers will approach allegations of sexual abuse. No longer, it seems, will we have beaming police officers hosting press conferences where they tell the world’s media that a complainant is “credible and true”. No more will they appeal for prospective complainants to come forward with the cry: You Will Be Believed. No, it appears that the police might give a vague nod towards such old nostalgia hits as the presumption of innocence, and the importance of comprehensive investigations.

Writing in the Guardian, St Bernard said:

We must be clear about the principle of impartiality at the heart of criminal justice. Dame Elish Angiolini, who has reviewed our approach to rape investigations, made a proposal that should be at the core of this debate. She detailed how our policy has moved over the years. In 2002, the Met said officers should “accept allegations made by the victim in the first instance as being truthful”. A report in 2005 called for a “culture of belief, support and respect”. In 2014, Her Majesty’s Inspector of Constabulary said: “The presumption that a victim should always be believed should be institutionalised.” A complaint of sexual abuse must now be recorded immediately as a crime.

Dame Elish questioned whether it is appropriate, or possible, to instruct an officer to believe. Instead, she said: “It is more appropriate for criminal justice practitioners to remain utterly professional at all times and to demonstrate respect, impartiality, empathy and to maintain an open mind … in the first instance, officers should proceed on the basis that the allegation is truthful.”

Now I confess ignorance of the aforementioned 2014 report – I had no idea that the state had formally codified this inversion of the presumption of innocence, although few defence practitioners will be surprised. Nevertheless, this is genuinely shocking. A presumption that a complainant is telling the truth is a presumption that the accused is lying. It is a fundamental reversal of the foundation of British justice.

Nevertheless, in response to Hogan-Howe’s article, Ms Phillips, seemingly determined to prove the maxim of Mr Justice Coulsen, tweeted:

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Right. A brief primer, if we may: The police’s job is not to believe.

The police are not fucking Journey.

Stop Believin'. Seriously.

Stop Believin’. Seriously.

The police are charged as the investigative arm of the state where criminal offences are alleged to have occurred. Their various functions, duties and responsibilities are codified in bodies of statute, statutory instrument, codes of practice and case law. Those functions are many and varied, but include, critically for this purpose, as per the Code of Practice pursuant to section 23(1) of the Criminal Procedure and Investigations Act 1996, the duty to establish whether a crime has even been committed. If the investigation leads them to conclude that a crime has or may have been committed, the police have the duty to investigate all lines of enquiry, including those that point away from the suspect’s guilt.

It doesn’t end there. Once a suspect is charged, the police and the Crown Prosecution Service remain under a continuing duty of disclosure – which means they are required by law to provide to a defendant any material gathered during the course of the investigation which might assist the defence or undermine the prosecution. This vital function in ensuring that justice is done – that the innocent are acquitted and the guilty convicted – is not just compromised but wantonly pissed all over if the police adopt the starting point that they must accept unquestioningly everything a complainant says.

And this attitude is all the more grievous for the fact that it has been reserved, it seems, for the very cases in which the credibility of the complainant is most likely to be the issue at trial for the jury to decide. How on earth can the accused be sure that he has been provided with all the relevant information with which to defend himself – such as (as the courts often encounter in sex cases) previous false allegations by a complainant, or witnesses who may contradict the prosecution case – when the police are encouraged to build up a case to enshrine the complainant’s version of events?

It hurts that I have to make what feel like incredibly simple, facile points, but plainly I do: The starting point for all investigations – sexual and otherwise – has to be neutrality. If a complaint is made, the police must investigate it, and investigate it thoroughly. They should treat complainants with courtesy and respect, but with the same open mind and critical analysis as they should a suspect. This is not “victim blaming” or “calling all victims liars” or any other formulation to which Ms Phillips might wish to pin her badge. It is the police discharging their vital public duties properly and in accordance with the administration of justice.

If they don’t, innocent people end up in prison. Institutionalising “belief” leads to catastrophic miscarriages of justice. The kind where people spend decades, if not lifetimes, festering in a cell for something they did not do.

Netflix’s Making A Murderer stands as a pop culture exemplar of police officers forming a settled view of someone’s guilt, and moulding an investigation in the image of that One True Faith.

If she hasn’t seen it, I’ll happily pay for Jess Phillips’ subscription.

 

So you’ve witnessed a crime…10 things you should know as a witness (but probably won’t be told)

This is a little later than promised. But, following on from the Criminal Justice Alliance report last month, chronicling the collected misery of witnesses in Crown Court trials, herewith a litany of dirty little secrets masquerading as home truths, which I as a witness would want to know in advance. Just to make the heartbreak if not easier to bear, at least less unexpected:

  1. Your witness statement is really rather important

So you’ve given your witness statement? That’s just a document where the police jot down roughly what happened, right? As long as it’s close to the mark, it doesn’t have to contain EVERYTHING. If a couple of details are taken down wrong by the police then it’s not crazy important. You’ve spent two hours giving your account of a harrowing, fast-moving event, it’s late on a school night and you’re content to sign what’s being waved in front of you so that Pc Nosehair will get out of your kitchen and you can just sink your teeth into a Ginster’s and crash out. Any errors or snafus can be straightened out later, yeah? No harm done.

WRONG.

If I am defending at trial, I am going to use that witness statement against you. I am going to exploit every teensy inconsistency between the minutiae of that document and the evidence you give the court from memory 18 months later. I intend to roll it up like a newspaper and biff you metaphorically on the nose with it like the naughty unreliable puppy that I want the jury to see that you are.

Make sure your witness statement is as full and accurate as it can be. Compel the officer to redraft, amend and buff your statement until you are not just satisfied but positively giddy at its craftsmanship.

2. It’s not all about you

Our friends in McFly might say otherwise, but I’m afraid it’s not all about you. You might be the complainant, the case might hinge entirely on your evidence, but you are not a party to proceedings. As such, you have no real say. The state prosecutes. The defendant defends. You are a witness, nothing more. You are not represented. The prosecution barrister is not your barrister. And while we have such lovely-sounding concepts as a Victims Code and a Victims Commissioner and a Victim’s Netflix n Chill (possibly), the CPS have the discretion to drive your case to a disused industrial estate and surreptitiously discharge two bullets into the back of its head if the evidence starts to unravel, or, as is happening increasingly frequently, it all starts to look a bit pricey. A burglary that requires an expensive expert DNA report? Well hello there, Notice of Discontinuance. You do have a right to request a review of a CPS decision when they bin a case – and I would urge you to exercise it if you’re dissatisfied with the cut-and-paste pro forma Word document that will have been posted out in lieu of a meaningful explanation – but just be prepared for the case to collapse at any time up to and including the trial.

Most good advice can be found in McFy songs

Most good advice can be found in McFly songs

3. It’s all about you

Actually, our friends in McFly have it spot on. It is all about you, when it comes to doing the prosecution’s job for them. Sadly, while the Witness Care Unit should keep in regular contact to update you on the progression of the case, remind you of court dates and so forth, “should” is employed in an aspirational rather than imperative sense, because invariably there are breakdowns in communication, or, to be less euphemistic, mega explosions of bottom-shattering incompetence. The trial might be moved. Your evidence might be agreed, meaning you don’t need to attend court. The scuzzbag might plead guilty. And it’s quite possible you won’t be told. So proactively case manage. Chase regularly for updates. If something new occurs to you, ask to give a further witness statement. And for Lordy’s sake let the Witness Care Unit know if there’s a problem with your attendance.

4. Help a brother out

There is a very real chance that the prosecution barrister will have been dumped with this trial the night before. If so, it is guaranteed that they will not have all the papers in the case. Even more dangerously, they may not realise that they don’t have all the papers. The typical prosecution brief arrives from the CPS containing triplicates of empty pro-forma documents and zilch copies of the actual evidence. When the barrister comes to see you in the witness suite on the morning of the trial (and they should – if they haven’t, demand to see them) ask them whether they’ve got all of your statements. If you’ve subsequently told the police something that might be helpful, ask the barrister whether they’re aware of it. The barrister is not allowed to discuss the evidence with you (to avoid suggestions that you’ve tailored your evidence to fit the case), but they will want to know whether an avenue of enquiry remains unchartered. It’s probably too late for them to do much about it if the police/CPS have just sat on the information for months, but the poor sod can at least pull the bag from the river, tip out the stones and attempt to reinflate those tiny kitten lungs.

5. Wait there

Prepare to wait. And wait. And wait. And wait. And go away, and come back, and wait again. Ad infinitum. Participants – both defendants and witnesses – are often dysfunctional and chaotic, as well as reliant on an equally dysfunctional and chaotic public transport system. The myriad heads of the court Hydra are in the gift of provably useless private companies who will faithfully forget to bring prisoners to court or fail to send an interpreter. Trials are inevitably underprepared by an overstretched Crown Prosecution Service, meaning delays as crucial evidence or disclosure is obtained and served on the day of trial. Add to this the fact that courts list up to 9 “floating trials” (trials without an allocated courtroom) in a single day – while courtrooms sit locked and unused on account of “efficiency savings” – meaning your trial probably won’t get called on. And look forward to the probability that, even if you do have a courtroom and a full set of defendants and witnesses, there may not be enough jurors. That’s the genius of the court system.

6. Giving evidence is not going to be pleasant

Giving evidence is going to be fucking horrible. If you’ve been required to attend court, it will usually be because material parts of your witness statement are disputed by the defence, and you will be challenged. Forcefully. At best, it will be suggested that you are mistaken. Quite probably, you will be accused of outright lying. It is not nice, but this is the adversarial system. The quickest and most painless way through is to listen and just answer the questions. Don’t try to be clever and twist the knife into the defendant, because odds are his barrister is just waiting to tick off “vengeful” on her checklist of closing speech pejoratives. Don’t pick a fight with the defence advocate, because that’s often what we want. Don’t change your evidence based on what you think or know someone else has told the court before you. And don’t lie. Not just because serving a prison sentence for perjury is a ball-ache, but because you don’t know what evidence the defence have up their sleeve to demolish that lie and leave your credibility – and the case – in tatters.

7. Stay

It will be the last thing you feel like doing, but, if you can bear to, nip back into court after you’ve finished giving evidence, take a pew in the public gallery and watch the rest of the trial. As long as there’s been no indication that you might be recalled, you’re a fully-accredited member of the public and are entitled to sit and watch the fun unfold. And I would recommend it, because it not only allows you to see your evidence in the context of the trial as a whole, but to identify who or what is to blame if it all goes a bit Donald Trump. While the first sign of insanity is trying to second-guess the inner-workings of the jury room, there tends to be a fairly obvious reason behind most acquittals, and it’s rarely perceptible without hearing all of the evidence. So, for your own peace of mind, stay behind, absorb the rest of the evidence, the legal argument, the speeches and the summing up, and if the worst happens, you might at least understand – even if you violently disagree with – the jury’s verdict.

8. Don’t be afraid to ask questions

If you don’t stay to watch – actually, even if you do – ask for explanations if anything is unclear. While (2) above is the bottom line, the CPS should consult with you over and/or explain any significant developments in the way the case is dealt with – for example where the prosecution accept guilty pleas to some offences in return for not proceeding on others, or where the defendant pleads guilty on a certain factual basis. If a prosecutorial decision appears arbitrary or irrational, ask the barrister at court (or a CPS lawyer in writing) for an explanation. There should be one. Sometimes the dirty little secret that the prosecution will be desperate to keep hidden from you is that their hand was forced by a failure by either the CPS or the police to obtain/serve/disclose vital material. If this is the case, you deserve to know.

9. Keep the faith

In spite of the above, I implore you to stick with it. The system relies enormously on the goodwill of members of the public who are treated abysmally, but without that goodwill, one of two things happens. Either cases collapse, meaning potentially guilty people walking free, or steps are taken to compel your attendance at court. If a witness summons is issued and you fail to attend, the court can issue a warrant for your arrest and hold you in contempt of court, which could result in a prison sentence of up to 2 years. I have lost count of the number of cases where a case against a defendant has collapsed and the only person being punished is the witness for not attending. I think in particular of a vindictive judge in the north who finds sport in locking up battered women who fail to attend to give evidence against their partners.

10. Claim your expenses

You should not be out of pocket for doing your public duty. Claim for your travel, your parking, your meals, your loss of earnings, and stuff your pockets with free Digestives from the witness suite. It’s the least you’re entitled to, in my humble view.

Witnesses in criminal cases deserve to know the truth

The criminal courts are fucking horrible.

That is an inalienable truth. It is also a succinct way of summarising the findings of a report published last week by the Criminal Justice Alliance following a 20-month study of the Crown Courts. The paper – Structured Mayhem: Personal Experiences of the Crown Court – relies on observations of Crown Court proceedings and interviews with defendants, complainants, witnesses, lawyers and judges to reach the surprising conclusion that there may be areas of forestation of scatological interest to bears.

A bear crossing its legs and seeking direction from the CJA

A bear crossing its legs and seeking direction from the CJA

I’d nevertheless recommend having a read, particularly if you’re fortunate enough to have never had to appear in court. While there is little in the report to take lawyers by surprise, there’s a dark pleasure in the public vindication of the complaints that I and many others have been intoning for years. It’s not simply the fat-cat, legal aid-guzzling, bloodsucking, champagne-quaffing, three-piece-suited, self-interested liberal elite friends of the criminals – to borrow from Philip Davies MP – who are saying it.

Ordinary people – defendants, victims and witnesses of crime – know first hand that the system is an utter shambles, increasingly so due to the growing realisation of successive governments that justice, unlike health or education, is something the general public simply aren’t that excited about. Which means it is easy to find “efficiency savings” in court, CPS and legal aid budgets, year on year. In the same way that a madman with a machete gleefully hacking off your limbs one by one is making staged efficiency savings.

However, as cathartic as it is to rage against the government machine, a large part of the distress of attending court as a witness is, regrettably, unavoidable. And what jumps out from the potted anecdotes and vox pops collated in the report is the failure of those witnesses to understand how and why the criminal process operates as it does.

I don’t mean that pejoratively. The fault lies in part with the legal profession, for our chronic inability to communicate to the general public what it is we do and why it matters. Partly with popular culture propagating an Americanised myth of how the courts and justice operate. Partly with the media for grinding between the sheets with governmental phalluses quivering as they ejaculate falsehoods about the legal profession to pursue their own illiberal, anti-human rights, cost-cutting dogma.

What we need, it seems to me, is a proper, helpful, honest guide for witnesses in criminal proceedings. Not coaching, but aimed to prepare them for the grizzly reality of what they, through their public-spirited contribution to the justice system, are letting themselves in for.

Over the next day or two I’ll be having a think about what dirty little institutional secrets I, as a witness, would wish to know, with the aim of cobbling something together over the weekend. Any contributions will, as ever, be welcomed.