Tuesday, 28 June 2011

What is justice?

A nasty fat scrote was convicted last week of the murder of a thirteen year-old girl by the name of Amanda "Milly" Dowler (here). Her murderer, as he was eventually proved to be, pleaded "not guilty" when put on trial so the forensic process that has developed over centuries was put in train. English law, as it stands at present, requires the prosecution to prove the guilt of an accused person beyond reasonable doubt and has a complex system of procedural rules to try to ensure that no innocent person will be convicted of a crime. Only a fool would suggest that the system is perfect, nonetheless it is as it is as a result of thousands of minor adjustments over hundreds of years. Further adjustments will be made as time passes, I can only hope they all bear in mind the overriding consideration that the innocent should not be convicted.

The procedural rules cover four main areas. First, there are requirements for the police to conduct their investigation subject to certain limits, for example questioning suspects must not involve oppressive actions. Secondly there are limits to what can be put before a jury - this is the law of evidence that, for example, allows hearsay evidence only in certain circumstances. Thirdly there are limits to how a lawyer may put a case in court, these are imposed by the codes of conduct that apply to barristers and solicitors. Breach of the codes of conduct can, in extreme cases, lead to someone being disqualified from practising law and in less extreme instances there can be suspensions of practising certificates or fines. Fourthly, trials are presided over by judges who have a wide discretion to prevent lines of questioning if they consider them insufficiently relevant. It is not without reason that judges can only preside over serious cases if they have earned a "ticket" to do so.

Over the last few days the conduct of the lawyers defending Milly Dowler's murderer has been subject to a great deal of ill-informed criticism. I need not explain the errors of the critics because it has been done already by Ms Wig (here), to which I was alerted by the good Mr Paine. My comment today is not about the details of that case but about something much more troubling, namely a false definition of justice.

One thing we must get clear right at the beginning is that the victim of a crime is the victim - not the victim's family and friends, not the readers of a newspaper, not people with children of the same age or bearing some physical resemblance to the victim, not people of the same racial or social grouping as the victim, but the victim and only the victim. Milly Dowler was the victim and only Milly Dowler was the victim, desperately distressing though her death was to her parents they were not the victim, Milly Dowler was the only victim in the murder of Milly Dowler.

Justice in the case of the murder of Milly Dowler could be delivered only by convicting her murderer of murder and having him sentenced according to current sentencing laws. That is an exercise between the State and the accused. It is absolutely not an exercise between the victim's family and the accused.

Far too often I read or hear references to a criminal trial bringing justice for the victim or the victim's family, that is utter nonsense. It will, no doubt, give them a degree of comfort that someone has been convicted; frankly they would receive the same degree of comfort whether the person convicted was the murderer or someone who was completely innocent. The administration of criminal justice is exercised by the State on behalf of the general populace and is intended to reach a true result whether or not the victim or victim's family is happy with the outcome. I say again, in serious cases the victim and/or victim's family often wants someone convicted, anyone, and they have no interest in whether the convicted person is guilty of the offence. The system of justice is designed, albeit not perfectly, to convict only those proved clearly to be guilty. If that means a family continues to mourn a murdered person and never discovers who committed the heinous crime, so be it.

The system must be unemotional and impersonal. The system must acquit anyone it cannot prove to be guilty. He or she might be guilty in fact but if we, as a general society, are to impose a penalty we would not volunteer for ourselves we must do so for good reason. A crime committed against a famous or popular person deserves no greater investigation and no lower standard of proof than one committed against a homeless crack addict with no family or friends to wail in public. Each requires the over-weaning powers of the State to result in a penalty against an individual only if the State can prove that a penalty is justified.

It is inevitable that some very serious crimes are never solved. No matter how thorough the police investigation, nothing can happen unless it turns-up evidence of sufficient weight to justify prosecuting a suspect. And even when the Crown Prosecution Service believes it has enough to justify a prosecution, that will only be enough to justify a conviction once a trial has been conducted, the defendant's lawyers have challenged the prosecution case as well as they can and a jury has returned a verdict of guilty. Unsolved cases involved victims and family of victims just as much as solved cases.

Criminal justice is about the defendant not the victim or the victim's family. There is no such thing as justice for the victim or the victim's family because, by definition the victim has already undergone his or her trauma, sometimes fatal trauma, and his or her family have suffered their consequential trauma. All that is left is the chance of identifying, convicting and sentencing the perpetrator. The only question is whether there is sufficient evidence to satisfy a jury that they should say "guilty" rather than "not guilty".

Pandering to victims and, in particular, to consequential or vicarious victims is no way to administer justice. If we give them any special protection in court from the questioning that would be relevant of a non-victim / non-victim family member, we risk placing their peace of mind above justice. I know it it will sound harsh to those of a certain mind, but it must be said loud and clear - no victim and no victim's family is entitled to see someone convicted and given a penalty. Whether someone is convicted and given a penalty depends not on the feelings and desires of anyone, it depends on cold, hard proof of guilt to the strict standard that is imposed to ensure (so far as possible) that only the guilty face the serious penalties resulting from conviction for criminal offences.

In this field, as in so many, meaningless feel-good concepts have been developed by psychologists with too little to do. One such concept is that of "closure" ( I occasionally comment on a "bad word", this is one). I watch little television but I do enjoy quasi-documentary programmes about real crimes, especially murders, a lot of which feature on a channel called Crime and Investigation. Time and again there is a police officer spouting words he has learned but never analysed, he says "we are pleased to have given the family closure" or some such twaddle. Anyone with half a brain understands that the death of a loved one is something that lives with you for ever. That someone is convicted of killing the late lamented loved one gives a degree of comfort but the pain continues and will continue until the end of your life. "Closure" is a concept designed to make victims or their families feel good but it has nothing to do with justice.

Criminal justice is not personal, it is not something delivered to victims, it is wholly and utterly about the State imposing a penalty against those proved to have broken laws. It is, so far as the system can ensure, impartial, impersonal, unbiased, unbigoted and aimed at only the defendant. Any attempt to change these principles will result in more innocent people being convicted, that is not something I would welcome.


Anonymous said...

I was with you until here:
"Criminal justice is not personal, it is not something delivered to victims, it is wholly and utterly about the State imposing a penalty against those proved to have broken laws."

It is not the "State" that should impose the penalty - it is up to the Judiciary to impose that penalty. I agree that the State may set the tariff/penalty - but should never interfere in the Judiciary's imposition of those penalties.

TheFatBigot said...

Mr Crun, what is "the Judiciary" if not a branch of "the State"?

I hope I did not suggest that any other branch of the State has, or should have, the power to interfere with sentencing decisions in individual cases, those decisions are in the hands of the judges.

In fact the discretion available to judges is very limited due to both laws and guidelines that are ludicrously prescriptive. Nonetheless,political interference in individual cases is non-existent.

Anonymous said...

This was a murder, so there was obviously a lot at stake, but even being convicted of a relatively trivial crime would be the end of many people's career, good name and reputation, and therefore, in their eyes, their lives.

Logically, does this mean that everyone accused of even a trivial crime should have the right to subject someone who is not the victim (assuming there was actually a victim) hung out to dry in public, inflicting far worse mental wounds on them than the original crime? If not, why not?

I can see it's a difficult balance to strike. The solution, I suggest, would be to filter the public reporting of certain aspects of the case, as it is the public innuendo, shame and humiliation that hurts the innocent most.

Lewis said...

Very well put. I am grateful that someone has had the courage to states these self-evident principles. I would go further - in fact, as far as Justice is concerned, the 'victim' is merely a witness and, in fact, merely one 'piece' of evidence among others. A crime is not a crime against a 'person' but, in fact, against the state, despite the creeping corruption of our legal language - contra Regina. It is the great civilizing virtues of our and others systems that the sting of resentment is taken out of the judicial process. Not only does justice not offer 'closure' (a horrible American neologism, as you say), in many cases, it inadvertently, and as an unfortunate but necessary consequence of due process, debases the so called 'victims'. But, in the best case of best practice, it neutralises, by being impersonal, personal animus and, as it were, anaesthetises the rancour that is naturally there. This is the difference between our civilisation and (a bulwark against) barbarism.
No, rather, what troubles me most about this is the way that the jury might have been prejudiced against an objective examination of the evidence by 1) the new ability of the prosecution to bring up the defendants previous record (he was a murderer therefore he must be a murderer); 2) the use of dubious witnesses; 3) the circumstantiality of much of the evidence ( a lack of an alibi is no proof that an alibi is needed ), the use of coincidence etc; and, finally, the use of what seemed to come close to hearsay and smear. I maybe wrong since I was not am member of that jury. But as for the defence, one fights fire with fire. What must be protected, above all, is the freedom to defend oneself, by all means lawful, against the overweening power of the state. That - or we have barbarism. I fear, of late, our attraction to the latter!