The Truth About IPP Sentences

Milly Dowler case must not be allowed to weaken defence options


Defendants must not be disadvantage

The conviction of Levi Bellfield for the murder of Milly Dowler was a gift to the media and a threat to the stability of the principal that any defendant in a criminal case has the right to the best and most forceful defence of possible. believes that no one, politicians or anyone else for that matter, has the right to weaken the defence options of anyone accused of a criminal offence.

The conclusion of the case has supposedly ‘raised issues’ over over how victims and witnesses are treated in the criminal justice system, particularly in emotive cases such as that surrounding the murder of Milly Dowler.

What none of the sycophantic, populist reporters or editors of newspapers are prepared to say however, is that it is the adversarial nature of Britain’s criminal justice system that is the problem, not the perceived unfairness to alleged victims or those who give evidence in a criminal trial.

Indeed, there are many who believe that the protection of witnesses at the expense of defendants has already gone too far. Over the last 15 years there have been more and more restrictions placed on defence lawyers with provision made for hiding witnesses behind screens, changing their voices and using pre-recorded testimony, thus limiting the possibility of a worthwhile cross-examination.

Quite clearly, every murder in a tragic occurrence, particularly where the victim is a child. Nevertheless, the vitriolic outbursts by members of Milly Dowler’s family which followed the trial had the effect of reducing their credibility to the extent of lowering themselves to the same moral thinking as Bellfield himself.

The statements the family made outside the Old Bailey were nothing more than a vindictive rant against the fact that they had been robustly cross-examined in an open court of law. They fail to understand that justice as practised in Britain and most of the civilised world is not about revenge; it is about the law and, to a greater or lesser extent, about the truth.

Whilst one does of course feel sympathetic towards aggrieved relatives who have lost a loved one, their ignorance of the way in which the law and the courts work is no excuse for the appalling display of what can only be described as primitive reasoning practised by Milly Dowler’s family.

They fail to understand that such hatred directed towards another individual will have no affect on that individual whatsoever. Instead, they themselves will be affected by their own hatred and lack of understanding of justice and the law. Courts are not concerned with emotions nor should they be.

Although politicians and indeed many lawyers with vested interests support the adversarial system of justice, it is in fact fatally flawed. It puts two parties that are diametrically opposed to each other in a public arena to slog it out to the death. The adversarial system often fails miserably to discover the truth and is instead concerned purely with one side winning and the other losing.

On the other hand, the inquisitorial system, as practised in most of the rest of Europe, is concerned not with open warfare in court but rather enquiring after the truth and by doing so, determine whether the defendant is innocent or guilty of the charge. There is no fight to speak of but instead, every shred of evidence is tested with nothing being held back.

In the British adversarial system, evidence frequently remains untested and even undisclosed if the prosecution believes that such evidence could prove that the defendant may be innocent. One must never forget that the job of a prosecutor in Britain is solely to secure a conviction.

The barrister who is prosecuting today could well be defending a case tomorrow and, like the judge has absolutely no interest whatsoever in whether the defendant is truly innocent or guilty, only in doing the job for which they are getting paid.

In a similar manner, defence counsel is also disinterested in the innocence or guilt of his client and will concentrate solely on giving the best possible defence to the accused.

In contentious cases involving sexual offences or murder, any defence counsel will tell you that the only way to win a case is to prove that the testimony of prosecution witnesses cannot be relied upon.

Under the adversarial system this means effectively destroying the credibility of the prosecution witness and to do that often requires an extremely robust approach to cross-examination. To limit defence counsel by putting restrictions on the manner in which they may question witnesses is to destroy any hope of justice within such a flawed judicial system. It is totally wrong to further interfere with the balance between defence and prosecution in an already damaged adversarial system.

Milly Dowler’s father claimed that the family had paid “too high a price” for Bellfield’s conviction. Mr. Dowler stated that in his view the law was biased and biased heavily in favour of the defendant.

If however one calmly examines the actual workings of the courts and the prosecution and defence processes, it very quickly becomes clear that Mr. Dowler is talking absolute nonsense, although given the tragic circumstances of the case, it is perhaps understandable as to why he should feel the way that he does.

It is this ignorance of the workings of the law that is responsible for so much upset amongst non-legal members of the public. It is their lack of understanding of the processes that are involved in both making and executing our laws that causes them to feel angry when they are involved in or read about a case that, to them at least, has the wrong outcome.

It is precisely for this reason that we have impartial judges whose concern is with the law and not with emotion.

It is also true that throughout history, when the British public have been going through hard times as they are at present, they always try and take it out on those who are convicted of crimes, serious or otherwise. It is human nature that when people are dissatisfied with their own lives, they see no reason why everybody else should not be dissatisfied with their own.

As for the police, who have rather predictably tried to cover up their own failings by calling for a change in the way that witnesses are treated in court, they are being dishonest with the public and trying to manipulate public thinking in the same way that criminals tend to manipulate their victims. A mixture of fear, indignation and guilt is usually sufficient if one’s aim is to try and sway opinion towards a particular argument or point of view.

Regrettably, the police often seem to have only two objectives in life. The first objective is to arrest people and the second objective is to bring them to court. In the inquisitorial system however, a judge oversees the whole investigation and exercises much needed control over the police and prosecuting authorities.

As with the lawyers involved in the criminal justice system, the police don’t really care whether or not someone is innocent or guilty. Their main concern is to arrest and bring to court an individual who has been tagged as committing a particular crime. The police have “clear up” targets to meet and will do anything that is necessary in order to reach those targets. firmly believes that it would be totally and utterly wrong to further erode and to further limit the capabilities of a defence lawyer assigned to defend an accused person. We agree that the system is biased but contrary to popular belief, it is biased towards the prosecution, not the defence.

In the case of women who have been raped or children who have allegedly been assaulted for example, the prosecution and the Crown Prosecution Service can call upon a whole panoply of measures to “protect” the witness in court. From giving evidence behind a screen to using written evidence or statements transmitted from another part of the building and which can be viewed and heard solely on TV screens across the court, there are numerous advantages for the prosecution.

In a classic case a few years ago a 14-year-old girl who had allegedly been raped by a 46-year-old man having been picked up from a nightclub (into which she should not have been allowed anyway), the accused had stated that he believed the girl to be “at least 18 and possibly older.”

When the case came to court and the girl was required to give evidence by means of a video link in order to “protect” her, she was dressed in a school uniform, had ribbons in her hair and was carrying a teddy bear.

When defence counsel tried to question her directly as to her presence in the nightclub and the reasons for going away with the defendant, the prosecution immediately objected and claimed that the defence was ‘harassing’ the alleged victim.

Nevertheless, the defence barrister continued with his questioning and became more and more robust in his cross-examination of the girl, who in the end broke down and admitted that she had not been raped by the defendant at all and had only made the accusation because the innocent man had refused to go to bed with her.

It is because of the need for a robust defence in cases such as that outlined above that maintains its view that no further restrictions should ever be imposed upon defence lawyers when conducting a criminal trial.

Whether one likes it or not, it is true that because of the adversarial system as it currently exists, the outcome of criminal trials is not always correct. If the results of those trials were correct, the Court of Appeal would be unnecessary. Instead, the higher courts have a backlog of thousands of cases requiring re-examination because of the flaws in the adversarial system.

Furthermore, to those people who believe that many Dowler’s family is right to criticise the way in which they were treated in court, says this:

If it were you or someone that you love were standing in the dock and facing a possible life sentence, wouldn’t you want your defence counsel to give you the best possible defence and to be allowed to use every asset at his disposal in order to do so?

If you were a totally innocent man accused of rape or sexual assault, would you not think it unfair that the alleged victim could stand behind a screen or hide away in a different room, safe in the knowledge that he or she would not be asked certain questions upon which your own freedom and life may depend?

The howls of criticism and the demands for change to the way the courts operate are not necessarily wrong but they are directed at the wrong problem.

If you really want to improve justice, get rid of the adversarial system. The opposition to change is very strong though.

Lawyers love the adversarial system because they get paid a fortune to sustain it; politicians love it because it is excessively easy to manipulate it; judges love it because they can blame the jury for any mistakes and not themselves; policeman, probation officers and prison governors love it because it exonerates them of any guilt for getting things wrong.

However, if you want fairness and true justice, scrap the adversarial system altogether, follow almost every other European country and switch to an inquisitorial system which, instead of pitting one side against the other will instead genuinely seek the truth, the whole truth and nothing but the truth.

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4 Responses to Milly Dowler case must not be allowed to weaken defence options

  1. June 27, 2011 at 2:39 pm

    How many defendants, during the Levi Bellfield (wrongly referred to as the Milly Dowler trial) were cross examined, their witnesses cross examined and then acquitted?

    It is unfortunate that anyone should feel they have been victimised. In this case the QC for Bellfield will have weighed up the advantages to his client and the disadvantages of attacking Milly Dowler’s Father and Mother in the way he did. It is never a good idea to attack witnesses as it usually backfires as far as the jury is concerned when considering guilt and as far as the Judge is concerned when sentencing.

    If I was representing a client and one or two of the prosecution witnesses had been Police suspects I would be negligent if I did not consider reopening the Police’s initial concerns as a cross examination tool. I may decide not to if the affect on my client’s case would be to cause more harm than good.

    In such cases it may well be that a Judge should consider allowing this form of cross examination in camera ie in the absence of the press and the public. Then it could not be reported.

    What is strange is that the same newspapers now shouting out for Milly’s parents were the same ones who reported the initial Police suspicions and enquiries and the cross examination in Court with such relish.

    Its not so much the questioning that is abhorrent but the dual standards of the press.

    • Raymond Peytors -
      June 27, 2011 at 3:00 pm

      I would just mention that the title of the article was deliberately chosen to easily identify the case in question. Many of the public are not familiar with the name of the defendant in the case. As for the dual standards of the press, I think most people would agree with the comments you make.

  2. June 26, 2011 at 9:24 pm

    Thank you Dr Peytors for being the voice of balance, clear thinking and reasoning in the feeding frenzy of revenge that is gripping a proportion of the public.

    I am in total agreement with your comments that the Dowler family have reduced themselves to the level of Bellfield in their vitriolic and hysterical spleen against the manner in which they were cross examined.

    I am at a loss as to why they needed to be witnesses as they did not witness their daughter’s death.
    The only thing I can conclude is that the prosecution used the Dowler family to shore up a case based very much on circumstantial evidence in order to secure a conviction.

    In the case of Bellfield it doesn’t make much difference as Bellfield is already serving a whole life tariff.
    One can only be grateful that the police, CPS and the Crown did not target an innocent man in this case as has been the case with men such as Simon Hall.
    (Have a look at his case, I think you would be appalled).

    Those accused of an alleged crime of a sexual nature have in the words of the solicitor who represented my husband at the preliminary hearing; ‘NO RIGHTS, NO RIGHTS’.

    As a point of interest and this example illustrates all too clearly how weighted in favour of the alleged ‘victim’ the judicial system is:
    My husband was put on trial for an alleged sexual crime the police, CPS and the Crown knew never occurred and had no basis in fact or reality and that the false accuser had been proven by incontrovertible evidence pre-trial to have made false allegations.
    On the unsubstantiated, uncorroborated, proven to be false word of the false accuser in combination with the deliberate suppression by the police, CPS and the Crown my husband spent ten days in a dock with his life in the hands of twelve jury members.
    The weight of evidence I gathered and adduced by defence counsel proved beyond doubt my husband’s innocence and the lies of his false accuser.
    My husband was found not guilty on 9 July 2010.

    That is not the end of matters however.
    The first anniversary of the trial is just days away.
    My husband has been in tears for four hours today. I have had to sedate him with diazepam such is the level of his distress.

    This Kafkaesque nightmare has had disastrous effects on both out mental and physical health.

    What was the objective of the false accuser and his mother, who concocted the allegations in the first place??

    Money, compensation, revenge, vindictiveness and to stop my husband from being able to see his other children.

    The justice system has impugned itself by putting a man known to be innocent on trial for a crime the authorities involved know never occurred and by that has proven, to use the words of Lord Denning…”to have innocent men remain in prison than to have the integrity of the justice system impugned”…..

    • Raymond Peytors -
      June 26, 2011 at 9:50 pm

      Thank you for your kind comments. Your own situation demonstrates only too clearly the flaws in an adversarial system which by its very nature puts pressure on everyone, including the authorities as they seek desperately to justify their existence. As for the quote from Denning in the case of the Birmingham Six, I regret that although he himself may be dead, his ghost seems only too alive and well.

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