I heard some trials today; as so often these days they were mostly Domestic Violence related. This kind of work forms a large part of our caseload, partly because DV is recognised as a great social evil that needs to be brought under control, and partly because political targets demand that the CPS gives these cases priority. The unfortunate side effect of this policy is that the CPS will rarely drop even the flimsiest case for fear of being unable to tick the right boxes.
In any context other than DV two out of three of today's cases would never have got near a courtroom.
And so many of them grind to a halt because the complainant (please NEVER use the word victim which carries a presumption of guilt) does not show. Don't admit her statement unless there is evidence of fear, and don't treat her absence as evidence of fear - that is circular reasoning. If her statement includes the words "I am willing to attend court and give evidence": - ask whether it does - then the evidence is that she was not in fear when she made it. Insist on evidence of change before you admit her statement.
ReplyDeleteIn short - no railroading.
Is there a broader agenda to consider too - the deterrent effect. I speed occasionally in the belief that (i) I am unlikley to be caught at all and (ii) even if I am the inconvenience or penalty is trivial in the scheme of things. If I had to have a day in court to deal within (whatever my plea) then this would be a deterrent.
ReplyDeleteAndrewofgg : Not sure I agree with the use/non-use of the Victim word. Often, for cases we se in court, it is clear that there is a victim. The alleged perpetrator, the defendant, may, or may not be responsible. No assumption of guilt. However I do recognise the "two men on a desert island and only one knife" syndrome.
ReplyDeleteIn d.v. (and rape) the question is not Who did it but Was there a crime - and the use of the V-word presumes that there was - and therefore that the defendant is guilty. Stick with Complainant which is neutral and accurate.
ReplyDeleteI am Andrewofgg now using anonymous because I can't be arsed with Livejournal.
ReplyDeleteIn d.v. (and rape) the question is usually not Did the Defendant did it but Was there a crime - and using the word Victim implies that there was and that the Defendant is guilty. Stick with Complainant - neutral, fair, and unprejudicial.
As a defence lawyer I object every time the prosecution use the word victim before conviction. I might as well not bother. An associate prosecutor told me last week that they are instructed to call the complainant a victim. Hey ho. Well not hey ho. It is completely wrong and if they do that in the CC then as they know they get their arses kicked big time but in the Mags it's all ok. Why cannot mags on their own motion pick up on this sort of thing? You do not need a defence lawyer to tell you this but when it is raised in court everyone looks at the defence as if they have got two heads. Just saying.
ReplyDeleteAlleged is a very useful word.......
ReplyDeleteThere are cases, however, when there clearly is a victim, but it's not yet decided whether the accused is the perpetrator. Burglary, for example. You'd be hard pushed to prove in court (in most cases) that there hadn't been a burglary in the first place, therefore the victim is clearly the victim. Do we need to have pre-trial hearings to decide whether the complainant qualifies as a 'victim' or is that perhaps taking things a tad too far?
ReplyDeleteWhen I take the Chair, last-but-two, I always pick up on the misuse of the V-word and if the prosecutor does it again s/he gets a bollocking. To be sure in many cases it is accurate - such as burglary - but if it is never used then they can't go wrong. My usual words to the prosecutor (in d.v.) are "There is a presumption of innocence here, Ms/Mr X; the word victim presumes guilt so please do not use it". And "alleged" does not really help.
ReplyDeleteAgree with andrewofgg on this one. I chaired a DV verdict last week and in the reasoning to the decision crossed out victim and inserted complainant to ensure that there could be no accusation of bias.
ReplyDelete