What really happens in court

Written by Total Politics has a free weekly Friday email bulletin. Follow this link to register. on 29 June 2011 in Diary
Jerry Hayes on the press chorus around the Milly Dowler trial

As someone whose grandfather was murdered when I was a child, I know more than most of the agonies, the stress and the horror that a criminal trial can bring to a stunned and grieving family.

And as someone who has defended high profile murder cases over the years I also know more than most how important it is that everyone, no matter how awful the accusations, deserves a fair trial. It is a mark of our civilisation, a badge of our Britishness. And it puts us on a moral high ground way above those who wish to destroy our way of life.

Understandably, there has been much comment over the Milly Dowler trial. The family feel defiled by the cross examination of defence counsel. They feel that they were treated unfairly, with contempt and that their reputations were trashed into the gutter.  

But before the debate reaches Richter-scale lunacy by those who want to sell sensational headlines and others who want to grab a few cheap votes, it is important that people understand what really happens in court.

Barristers are forbidden by judges to ask questions of witnesses that are gratuitously offensive and not relevant. They will be stopped mid sentence and given severe warnings. And it is unlikely to even come to that. The defence are obliged to disclose what their defence is before the trial. So what is admissible as a line of questioning will normally be agreed well before a case comes before a jury.

Further, a judge has control over his court. If he feels that either defence or prosecution counsel are behaving unfairly he can put a stop to it. This will be done in the absence of the jury to prevent further unfairness or prejudice.

At all times there has to be a balance struck of being fair to the victim and to the defendant. No doubt there will be talk of reform of the system. But the system doesn’t need to be reformed at all, provided we have free and independent judges and a free and independent Bar.

I must say I was rather shocked at DPP Keir Starmer’s comments that there needed to be a fundamental review. I would expect this sort of verbal incontinence from knuckle dragging parliamentarians and commentators with even a less expansive gene pool than Jon Gaunt. But from the DPP? For heaven’s sake.

So before the rent-a-quotes invade our living rooms with wild and woolly frothings about what goes on in court, let us be clear. The needless and irrelevant trashing of witnesses is not allowed. Nor can a woman accusing a defendant of rape be cross examined about her previous sexual encounters, unless a judge rules that they are relevant, which is rare.

So for any cross examination to be allowed it has to be admissible and relevant to the case.

The next area of concern that is promoted by those with necks redder than Bob Crow’s views is the 'kill a burglar and win a Mondeo' syndrome. They are mistakenly of the view that the law of self defence is inadequate and needs to be beefed up.

The truth is that the law of self defence is remarkably sane, clear and fair. You can use force, even strike the first blow, if you honestly believe that you or others are about to be attacked. But the force must be reasonable. If a man burgles your house and you catch him in the act, you are entitled to protect yourself and your family. But you cannot retaliate. In other words, you cannot chase him down the road, beat him up or kill him. However, if in the course of defending yourself and your family, you use reasonable force and he dies, no jury is going to convict you.

And the definition of reasonable? There can’t be one as each case has its own unique facts. It will be for a jury to decide using their common sense.

So who would you trust to define reasonableness? Politicians on the make? Or 12 randomly selected members of the public exercising their collective judgement?

Oh, and I wonder how long before some parliamentary loon demands a debate of the return of the death penalty ( apart from Roger Helmer who represents Bedlam West in Europe).

I really don’t think this one will fly. If that master bandwagon hopper, Nigel Farage thinks it’s a turkey, then it’s as good as stuffed.

Thank you. I feel better now.

Tags: Fair trial, Justice, Kier Starmer, Milly Dowler, Roger Helmer

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