ANOTHER VIEW Martin Wright In defence of victim's rights

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The Independent Online
Should criminal trials be a gladiatorial battle of wits or a search for truth? Should the prosecution and defence have to let each other know their information, or keep it up their sleeves to outwit the other side? The question is usually considered from the defendant's point of view. He has the right to know the case against him in advance, and to know his accuser but, as a result, if the police do not want to reveal and perhaps endanger their informant, they have been known to drop a case, even if the accused is clearly guilty.

The accused also has the right to information collected but not used by the prosecution. The importance of this was shown by the case of Judith Ward, convicted of the M62 coach bombing; the prosecution proceeded although the police had evidence of her innocence.

Yesterday the Home Secretary said the law favoured defendants, and he intended to force the defence to disclose their case to the prosecution. This was immediately attacked as an affront to civil liberties.

All this leaves out an important person: the victim, or the victim's relatives, in a case of murder. From their point of view, a miscarriage of justice is just as bad whether it is a wrongful acquittal or a wrongful conviction: both leave the perpetrator at large. If the mistake comes to light later, they must relive the trauma.

Since the Ward case, the prosecution has to disclose all the paperwork. Is this fair, when the defence has to disclose nothing? In one rape case, the prosecutor heard at the last minute that the defence intended to produce a witness who would say that the victim had been promiscuous. Feeling that the shock of this would be too traumatic for the victim, he dropped the case; had the information been available from the start, she could have been prepared to face the allegation.

Now it is dangerous to argue from one case, especially one of rape. The logic suggests that the defence should be disclosed to the prosecution early, so that such evidence can be properly handled.

Victim Support uses a different logic: the victim should be able to make a full statement to the Crown Prosecution Service at the outset. The prosecutor would know when to oppose unconditional bail; how much compensation to ask for; and how to handle pleas in mitigation by the defence, in which unpleasant things are often said about the victim. The Victim's Charter says that the prosecution should "correct" them, but it cannot do so without knowing the facts. And some of them may be true; it is simplistic nonsense to divide the world into guilty villains and innocent victims. Why shouldn't the mitigation be disclosed?

A final thought for the Home Secretary: the way to reduce wrongful acquittals is not to increase the penalties. It has always been found that the heavier the penalty, the more reluctant juries are to convict.

Martin Wright is Visiting Scholar at the Centre for Criminological and Legal Research, University of Sheffield, and was formerly policy officer for Victim Support.

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