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Law & Practice

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Hannah Harrison (LLB Law, Newcastle University) h.e.harrison@newcastle.ac.uk

Since his tenure as Director of Public Prosecutions ended on 1st November 2013, Keir Starmer has been leading an enquiry for the Labour Party about transforming victims’ rights in the criminal justice system. In a recent article for the Guardian, Starmer called for a Victims’ Law to protect vulnerable victims of sexual abuse and to support them through the invasive, distressing trial process. Although witness services exist to comfort victims throughout their time in court, Starmer suggests that change is needed to ensure victims feel safer and have more confidence in the criminal justice system.

Starmer evidences the need for change by highlighting the inability victims often feel to even report a crime in the first place. All of the ‘214 victims of recordable offences’ in Operation Yewtree, known as the Jimmy Saville case, reported the incidents following his death and when asked why there was a delay in making a statement ‘many cited a fear of not being believed or a feeling that the criminal justice system would be ineffective in prosecuting the offender’. Starmer states that the ‘crude’ police tests into checking witness credibility often discourage victims from making a statement. Even if a victim does have the courage to step forward, the focus by police and prosecutors, on whether the ‘victim was able to give a coherent and full account first time, whether the victim had returned to the perpetrator, and whether the victim had been affected by drink or drugs’ disheartens many who feel they are not being taken seriously. As Starmer indicates, ‘if the criteria for testing their credibility match the characteristics that make them vulnerable in the first place’ surely this is a fundamental flaw in the approach of criminal justice? We should be identifying victims’ vulnerabilities and supporting them and not discriminating them because of these things.

Furthermore, the adversarial system in court lacks support for victims, especially those of sexual abuse. The battle between prosecution and defence to extract all of the intimate and humiliating details from a witness is traumatising to them. Having to retell the worst event of their lives in excruciating detail to a room full of strangers, whilst facing the perpetrator, is highly distressing. Very recently, Tracy Shelvey fell to her death after being told that the man she accused of rape was acquitted. Officers reported that she was ‘angry and upset’ and was even visited at home, before her death, by ambulance and police staff after she called them in a highly distressed state. The Greater Manchester Police and Crime Commissioner, Tony Lloyd expressed a need ‘to learn from this tragedy and others that have come before’ as it ‘is abundantly clear is that victims and witnesses are not where they should be – at the heart of the criminal justice system’. He further highlighted that the issue of victim support was of grave concern and that it is crucial to constantly support victims from the initial reporting of the crime until after the trial has concluded. Starmer and Lloyd both agreed that a more radical review and an upheaval of the current system are needed.

Sadly, this is not the first case where a victim has been so deeply affected by a trial. The family of Francis Andrade are adamant that she was driven to suicide after she accused her former teacher of rape. Mrs Andrade took her own life whilst the trial was ongoing, mere days after she was cross-examined on events that had occurred when she was a teenager. Her son Oliver stated that being branded a liar and a fantasist during the trial seriously compromised her personal integrity, ‘more than she could bear’. It was reported that the judge had to ask Mr Brewer to avert his gaze from her after she felt too under pressure from his stares whilst in the witness box. Mrs Andrade’s husband told the court that she had become deeply depressed following her initial police interview and the fact that she died before a verdict was reached illustrates the intense pressure victims are under in the witness box. Tragically, another woman took her own life two years after alleging she had been raped by two soldiers. The inquest was told that Corporal Anne-Marie Ellement, a royal military police officer who was found hanging in her barracks, was left absolutely devastated by the decision not to prosecute the two soldiers she claimed had raped her while she was stationed in Germany.

A code of practice for victims was released in October 2013 but the death of Miss Shelvey since then, confirms that more must be done to help those in need. Although the code of practice is detailed and comprehensive in how victims can obtain support, it does little to address the need for mental health support, which often troubles victims of sexual abuse.

Starmer’s investigation is still ongoing and he is yet to release any details on his proposals for reform. Following the death of Miss Shelvey, the Ministry of Justice admitted that ‘more could be done’ to help vulnerable witnesses. It added that they are currently trialing a new way of ‘sparing vulnerable witnesses the trauma of appearing in court’ through pre-trial cross examination. Despite this, Tony Lloyd announced that he would be writing to the Home Secretary and the Justice Secretary to demand a review of the current support system for witnesses and alleged victims.

Giving evidence is a harrowing often brutal ordeal, especially for victims of violence or sexual abuse so what is needed is a focus on those deeply affected by crime. As Starmer identified, ‘this is a golden opportunity to recast the criminal justice system as a criminal justice service fit for victims’.

legalaidcuts

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– Michael Keightley (LLB Law, Newcastle University) m.keightley@hotmail.co.uk

Substantial cuts made to the welfare system in April 2013 have been met with public outrage. In order to save an approximate £350m per-year, legal aid has been scrapped entirely for cases of divorce, welfare benefit disputes, child contact, clinical negligence and employment.

Further changes are restrictions in housing law, with legal aid only being allowed in extreme circumstances. Not to mention the ethically questionable decision that, in order to receive legal aid in cases of domestic violence, the victim is required to provide medical evidence. Alongside all of these changes, employment tribunals will now cost a minimum of £160 before you even attend the hearing and could result in a total cost of £1,200 for ‘complex’ cases, based around issues such as unfair dismissal or discrimination.

Consider the amount of people using the legal aid system in 2009/2010 (an approximate 2,965,000) and compare that to the Government’s aim to save £350m. From this we can see that the Government would save a mere £118.04 per-head – leaving almost 3million people without proper access to justice for a relatively low reward.

Are we not living in a society of equal treatment? Not to say the legal system has been altered. The intentions of the legal system, as a whole, remain to be fair and indiscriminative. The issue is the accessibility of a fair system. It becomes difficult to profess that a system is fair if all cannot properly access it. Attorney General Dominic Grieve argues that “everyone has a reasoned plan for why expenditure should not be cut from their area”, but this does not concern the legal system as a single area, it concerns the constitutional right of every individual’s access to justice.

These changes adversely affect those on low-incomes by not allowing help with the legal support that can ensure they treated rightfully. Take, for example, if someone on a low income were unfairly dismissed for their race or belief; they would be left with no income and no means to follow the issue up in an employment tribunal. This loss of income could branch out into issues with rent, claiming Jobseekers or obtaining future employment.

This need for assistance will then shift to private charities, such as The Citizen’s Advice Bureau, and people will be forced to face their issues with the limited assistance of these charities, or their own knowledge of the system. An even worse possibility is that they may feel forced into finding funding for legal representation elsewhere, which could be bank loans or high-interest payday loans.

But this extends beyond financial issues. When domestic violence victims are doubted through the need to submit medical evidence of their victimisation, it becomes an ethical issue. Breaking ethical boundaries like this could create a rift of mistrust between the people and the system they rely on to deliver justice.

For the legal system itself, lawyers could lose a significant amount of clients. With the area of criminal law having 1,358,000 acts of assistance funded by legal aid, criminal lawyers are also bound to suffer. Grieve also commented upon this issue, giving his sympathy for the lawyers that were to be affected, stating, “for self-employed people it is death by a thousand cuts and it’s an extremely painful process”. It is this issue of ‘self-employment’ that seems to be receiving such little consideration – it would seem nonsensical to stop people entering a local shop and buying groceries due to a choice based on their financial income, so it should be regarded as equally unfair that the government are forcing a restriction to the business of many self-employed lawyers.

It is difficult to draw a positive from these cuts. With adverse effects to the idea of ‘justice’ and people’s belief in the system under which they are ruled, it would be more relevant to refer to a Marxist approach, where the classes are being treated differently based on their income. Such a huge change that was rallied against by 96,000 people through an e-petition; the conclusion left to draw is that such budget cuts have shackled the concept of justice and limited people’s utilization of their rights.