Stop all the clocks, cut off the telephone,
Prevent the dog from barking with a juicy bone,
Silence the pianos and with muffled drum
Bring out the coffin, let the mourners come.
- W. H. Auden
This week, Levi Bellfield received a whole life sentence for the murder of Milly Dowler. Milly was abducted on 21 March 2002; her remains found on 18 September 2002.
As is normal in any inquiry featuring a young missing person, several lines of enquiry had to be followed by the police, including ascertaining whether there was any reason she may have run away and/or self harmed, or if, in the event that something nefarious had happened, whether someone known to her, including her parents, could be responsible (child victims of homicide being more likely to die at the hands of a parent than a stranger).
As is usual, statements were taken from Milly’s parents and sister, initially as to her movements on the day in question, and about her general character and demeanour, in order to assist the police in making appropriate enquiries.
Those statements are evidence. Any statement taken by the police has to be given to the defence. The defence then decides if they want to question the witness, or agree the statement, in which case it is then read out in court. In every case, it is a judgement call as to who is called to give live evidence, and who is not. The balance that has to be struck is whether a witness will further the case you are putting, or whether they will actually damage it.
Often, the last people a defence barrister will want the jury to see is the parents of the murdered schoolgirl. It brings out normal human emotions, and does not do a defendant any favours. Why then, in this case, were the parents in the witness box?
Before I go on, let me make this very clear. I am terribly sorry for the Dowler’s loss. I cannot imagine the pain and heartache that attaches to the murder of a child, especially a teenager who at the time of her death, didn’t have, on the evidence presented to the court, the best of relationships with her parents, as is so often the case with teenage girls.
However, what we cannot afford to do, in our desire to demonstrate compassion and empathy to the parents, is sanctify them to the extent that the trial process is compromised, and to that end, I make no apology for what I am about to say.
Going back to why they were in the witness box, well, Dad didn’t help himself. Bob Dowler lied to the police about his own whereabouts on the day of Milly’s disappearance, initially not telling them that during his journey home, he pulled off into a motorway services where he spent some time looking at porn.
Those initial lies were coupled with the fact it was he who received the call from Milly to say she would be late, and he who then later left a message on her phone saying “Where the fuck is Amanda”.
The police asked to search the family home, as is perfectly normal and routine in the circumstances. When informed of this, Dad had to warn police that they would find bondage material and fetish porn during their search, and indeed told them where it was.
Police also found notes written by Milly about the ‘dad issue’, which where later explained as referring to the fact she had found a bondage porn magazine in her father’s room.
Culuminatively, all of that turned the police spotlight onto Dad, and he was questioned as a suspect.
When a suspect is questioned, the evidence is recorded, and then transcribed. That too will have been presented to the defence.
As will the contents of any search, which is the ‘physical’ evidence. This will have included items the police ‘seized’ during any search – in this case, the sexual items, the porn, and Milly’s own notes.
Milly’s notes included a letter to her parents. That letter said:
“Dear daddy and my beautiful mummy, by the time you find this letter I will be gone, up there or down below you.
“I have always been that way – below other people.
“I am sorry, you deserve a better daughter so I have left.
“If anything, you should be happy and you can concentrate on lovely Gemsy, without me getting in the way.
“You should have had an abortion or at least had me adopted, then at least I wouldn’t have made your life hell as well.
“I think it would be best if you try and forget me. It’s nothing you have done. I just feel I had to go. Please don’t let any harm get to any of you.
“Mum and dad, please look after Gemma. I am sorry but goodbye.”
Put yourself in the shoes of the defence barrister. Your client is telling you he isn’t guilty. He has read, and seen, all the evidence against him. He asks you to look at the following:
That Dad lied about his whereabouts;
That Dad had bondage and other fetish items in the house, along with fairly hard core porn;
That it was Dad who took the phone call from Milly, no other member of the family having spoken to her since she left for school;
That there were letters found in her writing, referring to the ‘Dad issue’;
That there was a goodbye note written by Milly;
That the two post-mortem examinations were inconclusive as to cause of death;
That there was no forensic evidence linking your client to Milly;
That there were no eye-witness accounts or CCTV showing the two together;
That some of the witnesses were inconsistent about what they considered Milly’s movements to be that afternoon;
That your client is already serving a whole life sentence and will never be released regardless of whether he is convicted of this crime.
Now add to that the Bar Code of Conduct, in particular Rule 708 (g), which states a barrister:
must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person;
And Rule 303 (a), that a barrister:
must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person;
Finally, remind yourself that this murder trial was presided over by a High Court judge. A senior judge who had seen the evidence, has read it, and who had undoubtedly, whilst able to keep his mind open, formed a view of the case. A senior judge who was able, at any point in the questioning of any witness, to stop the barrister and tell them they were out of order.
Hopefully, you will begin to understand why Jeffrey Samuels QC, who represented Bellfield, ran the case in the way he did. His client asserted his innocence and wanted his case ran on the basis that Milly ran away and was later murdered by an unknown other. There was evidence to suggest she could have run away; there was evidence that she was distressed by her father’s porn magazine; there was evidence to suggest her relationship with her parents was not as good as it could be. There was suspicion around the father. There was no direct evidence coupling Bellfield and Milly. There was no forensic evidence at all.
Hopefully, you will also be able to see why the judge deemed the line of questioning to be relevant to the case in question, and why he didn’t stop the barrister pursuing the line of questioning.
I am terribly sorry that the Dowler family were not prepared for trial by Victim Support. I am very sorry that they were not prepared for trial by the police, and I am very sorry they were not prepared for trial by the Crown Prosecutor, who, while not able to coach his witnesses will have been absolutely and completely aware of the line the defence was likely to take.
What I am not sorry for is the line of questioning they faced. That very line of questioning demonstrates that our justice system works. That a defendant will receive a robust, thorough and proper defence on the evidence available to his representative, no matter how distressing, or distasteful, or painful to the witnesses that may be, makes me proud of our justice system.
The press would have you believe that the Dowler family did not receive justice, because they were distressed by the case presented by Bellfield. I say they absolutely received justice. That evidence was forthrightly and strenuously tested so that they can be sure who killed their child.
The press want the trial system changed. The Victims’ Commissioner wants to look at making changes, and the Director of Public Prosecutions has come out saying he wants to ensure that the same does not happen again.
We are running the risk of being governed by knee-jerk tabloid reaction. Imagine you were accused of a crime. Wouldn’t you want a proper defence, a thorough defence, a fearless defence? Or would you want a barrister who visits you in your cell and says ‘I’m sorry, I can’t ask that question. Someone might get upset’.
By all means, put reporting restrictions on trial. Put the press on trial; but don’t put justice on trial. Those details could have stayed inside that court room, where, it could be said, they belonged. But the very press who are calling for the barrister’s head on a platter and a noose around the justice system’s neck, are the very press who disseminated that information in all its gory detail for public consumption. There is such a thing as restraint. But restraint should never be forced on the team responsible for ensuring a proper, robust defence is run. Justice demands that.
Milly Dowler is dead, the third victim of a man who should never walk the streets again. Don’t let justice be his fourth victim.
(a huge ‘Thank You’ to @seeyouatthebar who filled in some of the criminal procedure points)
*Roy Greenslade wrote a piece on this post in the Guardian here.