Monday Message 14.11.16
Enemies of the People
After a disaster, come the rescuers. The offensive and inflammatory coverage of the High Court’s Brexit decision (Miller) has prompted powerful ripostes from four former Lord Chancellors (Lords Mackay, Irvine, Falconer, and Michael Gove), one former Lord Chief Justice (Lord Judge), and one former senior Lord Justice (Sir Christopher Rose). Many others in the legal community and some politicians have publicly affirmed the importance of our independent judiciary and criticised the ignorant and irresponsible reporting. This not a question of press freedom: no one suggests curtailing what Mr Gove calls our ‘raucous’ press. It’s more a matter of education: for our leaders who appear to know less about the constitution than they should, and for the public, who should not be misled into doubting the ability of the Judges to do justice impartially and according to law.
If there’s a connection to the Miller story it’s forgetfulness of the basics. The police adopted a policy of automatically believing people who told fantastical tales about sexual abuse by prominent people, which led to pointless, expensive, distressing, bungled inquiries into blameless individuals. The investigators forgot that their duties include impartiality and fairness. They were instructed to believe what they were told. Sir Richard Henriques is unsparing in his report. Please read it as it exposes institutional failings in the investigation of historic sex offences that are relevant to our work as advocates.
It was necessary for Sir Richard to restate this simple truth
All ‘complainants’ are not ‘victims’. Some complaints are false and thus those ‘complainants’ are not ‘victims’. Throughout the judicial process the word ‘complainant’ is deployed up to the moment of conviction where after a ‘complainant’ is properly referred to as a ‘victim’. Since the entire judicial process, up to that point, is engaged in determining whether or not a ‘complainant’ is indeed a ‘victim’, such an approach cannot be questioned.
Neither belief nor disbelief should be automatic: better, to approach a complaint neutrally without feeling the need to believe or disbelieve, but to assess it objectively, weigh it up in the light of what else is known, measure the strengths and weaknesses of the account. Believing or disbelieving is a judgment; judgments are for judges ND juries. If investigators or advocates form a belief about their cases, better to keep it private, as it is likely to get in the way of their work.
Vulnerable Witness Training
The Bar Council today announces the launch of the training programme for advocates’ questioning of vulnerable witnesses, which will be rolled out over the next two years. In most respects, the training is a refresher course in how to ask questions properly, without prolixity and comment, but with clarity and focus on what the witness can understand. It’s a discipline that should improve the quality of advocacy in vulnerable witness cases and in general. It should make cross-examination more effective, not less, while reducing the ordeal for the vulnerable witness.
The Government has indicated that it broadly agrees with the Justice Committee’s recommendations about increasing the use of restorative justice. Details here.
The Government intends to raise the age limit for jurors from 70 to 75. The wisdom and experience of older jurors should help them to make wise decisions, with insights into life that younger jurors may lack. There is every reason for our ageing population to continue to fulfil its civic duties. Those who are infirm can be excused. Jurors should come from all sectors of society, because the jury represents society in all its diversity. Judges have to retire at 70, but like almost everybody else they will still be eligible to serve on juries.
Kerim Fuad QC
Congratulations to Kerim on his election as leader of the Southeastern Circuit. He has been a brilliant and devoted CBA executive member and we wish him every success in his new role.