Tuesday, July 5, 2011

Scales of Justice

A recent murder trial raised the issue of whether victims should be forced to have their evidence tested via cross-examination by the defence.

Such an experience is inevitably going to be emotionally painful for witnesses and, equally inevitably, out of compassion we would want to reduce the suffering of people who have already endured terrible experiences.

And yet...with liberty at stake, to be swayed by compassion in the adversarial process would undermine justice. Evidence must be tested, harshly, before people are convicted and thrown in prison.

Of course victims deserve compassion, but never to the extent that this undermines the rights of the defendant.  We must never forget that while the process may be difficult for witnesses, the potential consequences for those on trial are even worse.

Whether you are seeking a criminal justice degree, on trial yourself, or are involved with the criminal justice system in any way, you know that this torment is inevitable in the criminal justice process.  Its purpose is to attribute responsibility and punishment.

If we, as a society, want a process that aims to reduce additional harm, we really must seriously consider the benefits of restorative justice.


  1. Restorative justice sounds good, but being that if it exists already, it is rare, I would be very interested to hear how you imagine it Ben. Having a vision for future is important, so if you could, or anyone else could expand on the notion and ideas around restorative justice; it would be very interesting to read about.

    Would it for example encompass 'convict television' outlined in your last post for example? I do believe that public forums should be used for good purposes like hearing a convicted persons story because we might all be able to learn and progress as a consequence.

  2. The press seem determined to paint the courts in a negative light at the moment, no matter what the courts decide. In this case, a High Court Judge (which means one of the most senior 150 judges in England and Wales) and a QC prosecutor did not object to the line of questioning. That suggests that the questions were valid and related to the defense.

    However, it should be noted that whilst it was completely right that he had the ability to ask those questions, Mr Bellifield was extremely cruel to do so.

  3. Sophie, in Northern Ireland, restorative justice is the norm. It has a victim satisfaction rate of over 80% and has been shown to reduce reoffending. It puts the victim at the heart of the process and asks 'who has been harmed'; and 'what can be done to try to repair that harm'.


  4. 'However, it should be noted that whilst it was completely right that he had the ability to ask those questions, Mr Bellifield was extremely cruel to do so.'

    It would have been even worse for the family had the judge not permitted the line of questionning and he was able to appeal the conviction on the grounds that not all evidence was presented to the court.

    The defence lawyer asked nothing that the police did not themselves ask the family and nothing that was not part of the original investigation.

  5. Mmmmm a convicted murder on the side of those standing trial for murder and rape, your complete lack of compassion for victims makes me salute the legal system for keeping you in prison.

  6. @Anon 9:12pm

    Do you believe in the presumption of innocence? Innocent until proven guilty? The right to have your case heard before an impartial arbiter?

    Or do you believe in imprisoning the innocent? Do you believe that those accused have no right to challenge the accusation? Have no right for their case to be heard?

    That is the issue at hand. The most basic principle of justice is at stake, the right to a fair trial, the right to have your case heard.

    How does standing up for that principle show that you are lacking in compassion? Is the emotional hardship of being cross examined really so devastating to society that we should abandon fair trials?

  7. @ Anon 9:12

    I don't think a complete lack of compassion is necessarily implied in demanding that witnesses in criminal trials not be allowed to duck out of cross-examination. Yes, testifying is hard on the victim of a crime, and certainly cross examination does not make that any easier, but to argue that convictions should be handed out on the victim's (or alleged victim's) bare say so, without any scrutiny of their testimony, shows a blatant disregard for justice.

  8. In my opinion, the cross-examination of these witnesses by the defence council was as necessary (in the terms of justice) as the tough days of hostile questioning the Father of the victim was forced to endure over a period of days (following her disappearance) as the prime suspect in (what the police must have thought) his own daughters vanishing/suspected murder.

    Not nice but necessary!

  9. No person likes to have their life opened and displayed to the gaze of public from a witness box. I feel for the family and friends dearly but we must remember the defence has the duty to act within the existing law and contribute to the whole picture of the crime and thus establish a just outcome. All facts must be visited in evidence to achieve this no matter how painfull.