Saturday, June 28, 2008

Nothing to say on this one, David?

So far not a word from David 'Freedom Fighter' Davis on the emergency legislation to allow anonymity to witnesses in trials, in response to a Court of Appeal judgement that ruled this practice illegal.
Yet this is as much a fundamental legal principle as habeas corpus - that you have the right to know the identity of people making accusations against you and that, unless you do, you cannot defend yourself adequately.
For a long time we have concealed witnesses' identities in court where necessary and had Witness Protection Schemes in the most severe cases. I have no problem with that. But the current argument is about concealing the identity of a witness from both the defendant and the defendant's counsel, making it impossible for the latter to mount a defence or to properly cross-examine.
This will inevitably lead to miscarriages of justice. Accusations and false statements will be made from malice or, as has often happened in the past, by fellow prisoners doing a deal with the police.
But this policy stems from the 'convictions at any cost' mindset which is now so prevalent and is supported by all political parties.

People get particularly exercised by the low conviction rate in rape cases. Here, by the way, you have the illogicality and unfairness of victims getting anonymity but defendants not.
The problem with rape cases is that, where there is no other evidence, it is one person's word against another's. Inevitably, it is difficult for a jury to make a decision that is 'beyond reasonable doubt'.
But many people are reluctant to accept this intrinsic and insurmountable difficulty and call for more people to be convicted.

Let me put two propositions to you:
a) "We should try to convict more people who have committed rape."
b) "We should try to get more convictions in rape cases."
(a) is a laudable ambition.
(b) is nonsense and also dangerous because it can lead to reducing the burden of proof and thereby lead to the conviction of the innocent.

We have had a similar approach to child abuse cases, with campaigners like Esther Rantzen claiming that children never lie and should therefore be spared rigorous cross-examination. When it's pointed out that nobody lies more than children, they say "ah yes, but they don't lie about sexual abuse." Sadly, they do, sometimes without realising the implications.
I knew a woman who was a court reporter who told me a harrowing tale of a gang of young kids who lied about sexual abuse. By the time they admitted they had lied, the unfortunate man they accused had killed himself following coverage of the case in the local press.
Last week the Court of Appeal heard the extraordinary and shocking case of a 14 year old girl who falsely accused her brother and his friend of indecent assault when she was nine. The two boys were 11 and 12 at the time. Her brother was taken into care and both boys suffered terribly as a result of the false accusation.
Unfortunately, these are by no means rare examples of lives destroyed by false accusations. Making it easier to convict would lead to many more.

Many people seem to take the view that if we can convict more guilty people the conviction of a few innocent ones is a price worth paying.
I take the opposite view. I would rather that some guilty people went free than see innocent people locked up for many years.
And I would say to those who disagree with me: would you offer yourself up as part of 'the price worth paying'?
If you were wrongly convicted because fundamental principles of justice had been weakened and the burden of proof reduced, would you sit in your cell for ten or twenty years saying "Ah well, this is all in a good cause. I was unlucky but a few more guilty men are also behind bars"?

In the meantime, I await a ringing declaration from Mr Davis of the right of an accused to know the identity of his accuser.
I suspect I may have a long wait.


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