Cross-examination on trial and the murder of Milly Dowler
What can be done to protect the dignity and privacy of witnesses?
Levi Bellfield was yesterday convicted at the Old Bailey of the murder of Milly Dowler. Much of the press attention has focused on the cross-examination of the victim's parents. For example, in the Guardian:
Milly's father and then her mother broke down in the dock as they gave evidence during Levi Bellfield's trial.
[The father] was forced to admit he had been an early police suspect. He was stripped of his paternal dignity as details of his sexual proclivities were extracted.
The wail of [the mother] as she finished her evidence and collapsed into her husband's arms, haunted a stunned court long after she was helped from the room.
Waiting outside for her turn as a witness, [her sister], broke down on seeing her mother shaking and overwrought. Court officials and family liaison officers flustered round helplessly as she too convulsed in sobs.
"Harrowing" was how someone described the scene as a first-aider was summoned. No one disagreed. In the end [the sister] was spared when lawyers consented to her statement being read to the court.
The barrister responsible for the cross-examination was Jeffrey Samuels QC, who trumpets his involvement in this case on his work profile:
The Leader of the Criminal Group in Chambers, and more recently as leading counsel for the defence of Levi Bellfield accused of the abduction and murder of Milly Dowler (click here for the BBC coverage related to this case), Jeffrey has over the years proved to be a "very useful operator" (Legal 500), exercising his "very fine judgment" (Chambers & Partners, 2009).
Can a barrister be fairly blamed for such a cross-examination? Surely a victim's family have suffered enough without being put through this sort of ordeal? And what about the privacy rights of the witnesses? As @ashroplad pointed out today on Twitter, the courts on one hand grant injunctions to protect the privacy rights of celebrities and on the other hand readily allow the invasion of the privacy rights of witnesses.
Unless one is in court, it is difficult to evaluate the conduct of any advocate. It is, as the profile of Samuels indicates, a question of "very fine judgment". And it is actually not open to barristers to ask any question they want. Under the Barristers' Code of Conduct there are limits to what a barrister can and cannot ask in court:
Conduct in Court
708. A barrister when conducting proceedings in Court:
(a) is personally responsible for the conduct and presentation of his case and must exercise personal judgement upon the substance and purpose of statements made and questions asked;
(g) must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person;
(i) must not by assertion in a speech impugn a witness whom he has had an opportunity to cross-examine unless in cross-examination he has given the witness an opportunity to answer the allegation;
(j) must not suggest that a victim, witness or other person is guilty of crime, fraud or misconduct or make any defamatory aspersion on the conduct of any other person or attribute to another person the crime or conduct of which his lay client is accused unless such allegations go to a matter in issue (including the credibility of the witness) which is material to the lay client's case and appear to him to be supported by reasonable grounds.
The barrister must thereby have a good basis for the question to be asked of any witness. If there is no good basis, the barrister can face both a complaint (which can be made by any person) to the Bar Council and professional sanctions, including being disbarred from practice. This is in addition to the judge in the case being able to intervene and prevent any inappropriate questioning at the time.
As regards the privacy rights of witnesses, the assumption behind the Code of Conduct appears to be that if there is a good basis for the question, then any interference with personal privacy would be legitimate and proportional in the interests of ensuring that there is a fair trial.
All that said, however, the experience of many witnesses of the criminal court system is often unpleasant.
It is all very well ensuring that the defendant has a fair trial, and is able to put their case to witnesses and to the judge and jury; but does that really mean witnesses should have no rights at all?
Here, it is interesting to note that the government have appointed a "Commissioner for Victims and Witnesses". The Commissioner appears not to have any formal powers, other than to warn, counsel, and advise. But it is interesting to see the Commissioner's response to the news coverage of the Bellfield conviction. Her statement, of which only the first sentence was quoted by most news outlets, reads in full:
The experience that that Dowler family have endured through this legal process has been quite appalling.
Sadly it's not an isolated case. I have met many families of murdered loved ones who have told me that the process has been almost as traumatic as the death itself. Victims and witnesses have few rights, no real route of complaint, they are often given little information and sometimes treated as if they were an inconvenience in some legal game being played out in the court room.
We can't let this continue. People must feel able come forward to report crime or give evidence in court because if they don't then we'll have rapists and murderers walking the streets. We have a system which says victims must not take the law into their own hands but step aside and allow the crown to punish criminals fairly on their behalf for the benefit of everyone.
The other side of that deal is that victims and witnesses should be treated with dignity and respect.
This doesn't mean taking away rights from defendants, but levelling up a system that currently treats victims and witnesses as a poor relation.
Many people who have dealt with the criminal justice system will endorse the sentiments of the final two sentences. The problem is in converting such sentiments into concrete policy.
In particular, in what circumstances should a barrister not follow a line of questioning which otherwise would be allowed under the Code of Conduct and be permitted by the trial judge? This is an extremely difficult question to answer.
Outside of the witness box there is support and practical assistance which can be provided for witnesses. One hopes the Commissioner can ensure such support and assistance can be improved upon. As she says, witnesses are certainly not and should not be treated as "an inconvenience in some legal game being played out in the court room".
But in the witness box, it is hard to see how witnesses can be treated differently, if there are questions which would otherwise be permitted by the Code of Conduct and the trial judge. If this is so, then there may be a problem here without any easy solution.
David Allen Green is legal correspondent of the New Statesman