THIS IS HOW it works. Someone has an idea. It sounds good, ?on the side of ordinary people?, and tough on crime to boot. So it finds its way into the Labour manifesto, and here we are a year later about to see it tried out in court. Tried out, that is, without the faintest idea how it will work, and in the face of almost universal protest from the entire legal profession and the judiciary.
Welcome to the uncharted territory of the victim?s advocate. From next Monday courts in Birmingham, Cardiff, Manchester, Winchester and the Old Bailey will be piloting a scheme to ?give the relatives of the victims of murder and manslaughter a genuine voice in the criminal justice process?. A sad parade of the bereaved will find themselves part of a grand experiment in emotional theatre. What they will put themselves through will add nothing to the case, nothing to the sentence, take nothing from the crime. But it will directly expose already vulnerable people to the harshness and uncertainty inherent in an adversarial court system.
Part of the Government?s aim is better to help victims? relatives through the court process, so that they understand what is happening and why. Nobody could reasonably object to that. But the pilot scheme takes an important step beyond that: it introduces a system whereby the relatives of victims of murder or manslaughter will be able to make oral statements in court about the impact of the crime on them.
Listen to the Government?s own summary of responses to its consultation paper last year, before I tell you why this is so wrong: ?Most victims groups and individual relatives welcomed the proposals. As Support After Manslaughter and Murder (SAMM) puts it: ?Nearly every person who contacts us expresses concern that they were not allowed to address the court at trial.? The most common arguments in support of the proposals were that oral statements could give relatives the voice in the criminal trial process that they deserve, that they could assist the relatives in coming to terms with the trauma of bereavement and that the proceedings are currently skewed in favour of the defendant rather than the victim.?
What couldn?t sound less objectionable is in fact unnecessary, manipulative and cruel.
First, victims? relatives already can address the court at trial, only they do it through the judge. Prosecuting authorities can offer to a relative the opportunity to make a ?victim impact statement? that the judge may read out after conviction and before sentencing and it can affect how long a sentence he hands down. That some police forces do not tell the relatives about this is no reason to introduce a direct oral system instead.
Professional victims? groups suggest that the new scheme could assist relatives in coming to terms with their bereavement. But the Old Bailey is no place for trauma counselling; these are courts, they are not branches of Victim Support. And being courts, they can be pretty harsh. They could make things a lot worse.
Imagine that you are the mother of Mike, who has been killed. In the course of the trial the defence team has painted Mike as a nasty piece of work ? violent, disliked locally, couple of convictions for mugging ? in order to try to introduce a partial defence of provocation for Jason, Mike?s killer, or at least win some sympathy from the jury. The defence has failed but Mike stands, in your eyes, traduced. You are his mother; you have always thought him misunderstood.
So you tell the court that. What has the court gained from hearing that Mike was always lovely to his mum and she really misses him?
And then Mike?s mum adds that it was Jason who was always the bad sort and he should be locked up for life . . . Now imagine you are Jason?s mum and you know that Jason was a good boy until he got caught up in this fight, whereas Mike was a little sod who had spent years trying to get Jason involved in all sorts of trouble ? can you, Jason?s mum, or your defence team, cross-examine Mike?s mum? If her evidence is to affect sentencing, then you should be able to.
The Government itself admitted this problem when it published the responses to its consultation: ?If relatives do not receive appropriate advice about what they can say, then relatives could leave themselves open to cross-examination, an upsetting process that could appear to put the relative on trial.?
I don?t think it?s fair, when a mother has just gone through the trauma of a five-week trial, listening to all the grim details of her son?s death and having to look at his killer sauntering into court every day and finally hearing him convicted; I don?t think it?s fair to expect her to temper her language, restrain her feelings and remember the rules of evidence. Not with all that emotion, when you have given her a court to speak to, and the first opportunity to confront the man who murdered her son.
So this isn?t in the relatives? interests. It really serves only the interests of the politician who wants to parade his ?Something Being Done?. It is a vast experiment in the most delicately sensitive of areas. First, someone has to decide who is the relevant relative or friend of the deceased. Is it his mother, his wife, his mistress, his sister, his best mate? Who gets to speak? Who decides? What if the wife is delighted, secretly or otherwise, that Mike is dead, but the mistress and the mother are devastated? Can they make a statement instead of the wife? Or do they all do it, an advocate each?
And what if Aunt Mary is particularly upset because she was very close to Mike when he was little, helped to deliver him no less, and she wants her say? And she wants to say it herself, thank you, no advocate needed. In the US, whence this idea hails, families often make passionate eulogies, accompanied by photographs. They even suggest sentences. Will families here be encouraged to believe that they can set the tariff? This all sounds mad, because it is mad; even judges, who will have to run the system, do not know how it is going to work.
What of the cases, for instance, where a murderer has multiple victims? Would each of Harold Shipman?s victims have had a relative to speak? And each relative an advocate? Or if one of Shipman?s victims had no one close enough or willing to speak out in court, no one left who cared enough about her, does that implicitly lessen the crime against that person?
This experiment is going to be some spectacle: tragic and tragic-comic, fine fodder for the media ? a great parade of misery, anger and confusion. What it will not be is justice; not for the guilty, nor for their victims and not for their relatives.