There’s no denying that the court process can be gruelling for the families of murder victims. They are plunged into a world over which they have no control, a world ruled by men in wigs who appear to have little consideration for their feelings. Their role is to sit quietly at the back of court and try to show as little emotion as possible so as not to disrupt proceedings.
What’s more, they may be called to give evidence in the full glare of the public and answer difficult questions about their loved ones. Previous convictions, drug use, bad behaviour – all could be raked up in what appears to be a cheap attempt to conceal the truth about who committed the crime. The families may even be accused of the crime themselves. It all seems deeply unfair.
But it was still a little surprising when the father of Milly Dowler suggested that his family had paid ‘too high a price’ for the conviction of Levi Bellfield, almost as if it wasn’t worth pursuing the court case at all. He added: ‘We do not see this as true justice for Milly, merely a criminal conviction.’
Bob Dowler said Bellfield ‘was able to decline to give evidence and chose instead to hide behind his defence QC, to challenge the testimony of EVERY witness – WHERE IS THE FAIRNESS IN A SYSTEM WHICH ALLOWS SUCH BEHAVIOUR.’
Their complaint was understandable in hindsight. The man who killed their daughter and was already serving a life sentence for killing two other women had been allowed to humiliate them in court. Bellfield knew he would never get out of jail. He had nothing to lose.
The problem is that Bellfield’s conviction wasn’t assured. The prosecution case in a nutshell was that he lived close to where Milly Dowling was last seen and went on to murder two other women. Now imagine that the jury hadn’t been told he had previous convictions for murder.
Most defendants would not have pursued the tasteless questions about Bob Dowler’s lifestyle and Milly Dowler’s lack of self esteem for fear it would turn the jury against them. But the point is that there is a principle of neutral justice at stake. Justice is blind, not because it doesn’t care what it sees, but because it is even-handed and fair in its attempt to get at the truth.
One recent example from the Old Bailey: Jacqueline Barrett, a 34 year-old mother-of-three was strangled and battered to death by her boyfriend Houssam Djemaa during a ‘domestic’ row. Djemaa admitted killing her but claimed that she provoked him by racially abusing him and threatening him with a knife. This would reduce the offence from murder to manslaughter and effectively cut any prison sentence in half.
To run this defence his barrister questioned the victim’s mother Angela about her daughter’s past as a drug addict and previous convictions for violence. There was even a hint that the parents were partially to blame.
“She could become racially abusive when she was angry,” Paul Mendelle QC told the court. “She claimed that she had inherited her racial abuse from her parents.”
Obviously this compounded the family’s grief. As her mother Angela said after the guilty verdict: “He tried to paint Jacqueline in the worst possible light at court rather than admit what he had done, but didn’t once mention his controlling behaviour or trying to push Jacqueline and her family apart.”
Yes, the defendant was allowed to put forward a defence based on lies about his victim, but this is the whole point of the trial – to get at the truth. Until the jury returned their verdict he was innocent of the crime, and entitled to fight his case. This explains why Bellfield was allowed to suggest Milly had run away because of problems at home and been snatched from somewhere other than his doorstep.
Sometimes this results in added trauma for those involved in the trial. Watch any murder case at the Old Bailey and you will see witnesses challenged, accused of dishonesty or blamed for crimes they did not commit. The idea is that the truth will shine through and that juries will convict only when they are sure of guilt, not because they sympathise with the victim or the victim’s family. You only have to imagine yourself in the dock to understand why the defendant should be allowed to challenge prosecution witnesses.
Another reason why the Dowler family were so traumatised was that the court case was reported in excruciating detail by the media. They had already suffered nine years of press intrusion (and potentially having their phones hacked by the News of the World) before a suspect was finally put on trial. During the trial they complained about having to sit in court next to a great legion of TV and newspaper journalists tweeting away on their phones whenever anything ‘interesting’ happened.
Sadly this is another example of a family finding itself on the rough end of a principle, this time the principle of open justice. Murder trials should be reported. The question is, how much?
In reality most cases only feature in the papers two or three times – the prosecution opening, the defence case and the verdict. Sometimes the defence case is skipped entirely. Details that cast the victim in a poor light are glossed over in an attempt to make the story more newsworthy. Graphic details of rape and murder cases are not reported, on the basis that nobody would want to read about it.
Anyone seeing these reports might think the defendant was guilty already, not innocent until proven guilty. Perhaps this is one reason why people are so shocked by what really happens in court.
Unfortunately for the Dowlers, Milly’s murder became one of those cases, like Soham, Ben Kinsella and Damilola Taylor, that gained massive media attention because of the issues raised. How did a 13 year-old girl disappear in broad daylight? Why was Bellfield not caught until after he killed again?
But now the furore about callous defence barristers and a carnivorous press has died down (ok, maybe not the last one), someone can work out how best to prepare victims’ families for the justice system without compromising either a fair trial or open justice.
Louise Casey, the Victims’ Commissioner, revealed that a survey found that ‘families that had had no involvement with the police and courts actually coped better with their bereavement.’
She argues that a ‘victims’ law’ should be passed to protect families from the harshness of the system. As reported in the Guardian, this would include:
- a criminal practice direction to ensure families were treated with dignity and respect during court cases
- judges should clear the court when particularly distressing evidence is about to be heard or at least the families given due warning
- the right to information from the crown prosecution service, including meeting the prosecuting lawyer
- the right to sentencing remarks from the judge in writing and trial transcripts
- release of the body back to the family within 28 days
- courts to have a family meeting to ensure that their needs during the trial are met
From my experience, prosecutors do chat to families, there is a dedicated witness service in court and relatives are warned when disturbing evidence is likely to emerge, although it’s up to the professionals to make sure it happens. Sometimes things go wrong, so if it really needs legislation to make it happen, then so be it. The court process is never going to be easy, but it could be made a little easier.
There is another theory – victims are traumatised by the system because they are over-protected by the state and feel shut out of the whole process.
The criminologist Nils Christie, in a 1977 article ‘Conflicts as Property’, argued that we should restore the victim to the centre of court cases.
Highly industrialised societies do not have too much internal conflict, they have too little. We have to organise social systems so that conflicts are both nurtured and made visible and also see to it that professionals do not monopolise the handling of them. Victims of crime have in particular lost their rights to participate. A court procedure that restores the participants’ rights to their own conflicts is outlined.
It seems you need a subscription to read the full article but, according to this piece by an American attorney ‘Genuine Justice’, it argues that as a result of the state attempting to protect the victim from conflict, we are less able to cope when conflict occurs.
Giving the victim direct involvement ‘creates the opportunity to get at the root of the conflict, heal the wounds it has caused and at last have a real path to peace. As the parties come to understand one another, they are far more likely to assume responsibility for what they have done.’