Justice: RIP?

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.

Until her remains were found, police categorised Milly as a missing person. The Crimewatch programme which featured news of her disappearance included a direct appeal to her.

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.

 

146 thoughts on “Justice: RIP?

  1. unfortunately however spot on your article the press would have it differently after all sales of papers is far more important than justice in the same way that why should we have laws, rules, regulations after all cant the press decide our laws by putting pressure on weak ministers to create knee jerk laws.

    the barrister did his job and to the best of his ability and it is not unfair that the family was cross examined with vigour after all the father was a suspect, and despite Bellfield being a distasteful character he is still entitled to a fair and thorough trial with fair and unbiased representation.

    • Absolutely he is. In a case where the evidence was circumstantial at best, the evidence was properly tested to ensure a safe conviction. It is that which gives me renewed faith in the justice system.

  2. “Put the press on trial”

    It’s the press that turned a painful, but necessary, experience into a public ordeal.

    They’re the problem.

    • I agree. There was no need for the details the press are now yelling about to be in the public domain – they elected to report it. Amusingly, they try to draw the analogy of footballers being granted privacy injunctions. Without them salivating over private lives, they wouldn’t be necessary.

      • There may well be no need for the press to report the details but any attempt to stop them doing so is the thin end of a very dangerous wedge.

  3. . There must be some cases where defendants shouldn’t be allowed to gratuitiously question victims’ relatives, surely. The judge clearly decided this wasn’t such a case. But are there really no cases where this shouldn’t be allowed? Such as the case of an already convicted murderer who is not himself giving evidence?

    • There are absolutely those cases, but this wasn’t one. I myself have been on the receiving end of many a judicial slap, telling me I was about to overstep the mark.

      The fact the defendant elected to not give evidence is irrelevant. It is for the Crown to prove the case against him, not for him to prove his innocence or otherwise.

      • Quite. It is for the crown to prove his guilt. Not for the defendant’s lawyer to suggest the victim’s father is guilty.

        • But he didn’t suggest Milly’s father was guilty. Rather, he suggested that there was at least some evidence (including the father’s admitted behaviour) to support the view that Milly may have run away rather than been abducted.

          Yes, it’s for the prosecution to prove its case. But are you seriously suggesting that the defence should not be allowed to show weaknesses in that defence, or to advance a credible alternative explanation? If not, the jury is just being told one side of the story.

          • Well, a court has tested the evidence available to it, and a jury decided that guilt lay with Bellfield. For now (I understand he is likely to appeal) that is simply that.

          • Oh no, that’s not what I mean. I’m arguing against a general principle of forbidding defendants from suggesting the victim’s father is guilty.

  4. agree with your post! we can’t rule out the whole family in every case or that someone’s private life which has something to do with the case should be kept quiet. The police need to investigate every avenue! It’s true that the probability is that it is someone known to the missing person.

    I do have issues with the media though. When someone is charged they are supposed to back away and not discuss and print rumours about the case. When someone is charged they have to report the facts of the case only and not discuss it. This year the UK newspapers have been dreadful at discussing active cases! Compare discussing active cases between TV which is very careful and newspapers which just don’t stop now! they discussed Millie’s Father over and over and Bellfield with all the sensational press that has been printed. Discussing how many people he could have killed before the verdict was plain stupid. Two newspapers at least did that! Because they did it before the case is over, a part of the case has now fallen through! We can’t have new laws which make the police more sympathetic to the family. They need to be treated respectfully (like anyone before being found guilty) but not above suspicion and they need to take legal action against media who break the rules! I am convinced that the press brought out all the juicy parts of their story, not the police or courts! :(

  5. I’m grateful to David Allen Green for giving this exceptionally well considered and thoughtfully written blog a recommendation. Hard cases make for bad law. This has clearly been a very difficult case. The sanctimonious pontificating of the very same press that sought to sell papers on the back of needless details from the court proceedings has been distasteful to say the least. At a time when the barrister in question is, effectively, restricted from explaining his reasons for his approach to cross examination, this sort of careful analysis of the issues involved is invaluable.

    • Thank you.

      What I find most odious of all about the press furore is that in their desire to start the vilification of the trial process they forgot that there was another case for the jury to decide, that of Rachel Cowles, who apparently sobbed as the judge had to explain to her that he had no option but to discharge the jury due to adverse press. I’d rather the DPP spent his time focusing on the issue of contempt for her, rather than giving the press self satisfying, hand wringing sound bites.

      • “I’d rather the DPP spent his time focusing on the issue of contempt for her, rather than giving the press self satisfying, hand wringing sound bites.”

        Spot on there, as with your post in general!

  6. What amazes me is that Surrey police were slated for putting Mr Dowler under surveillance. Just supposing he had murdered his daughter? If the investigation hadn’t focussed on him in the early days, the police would have been severely criticised. Seems like they couldn’t win either way.

    As for the trial, you’ve said everything that I wanted to say but wasn’t brave enough to do.

    • Thank you. It is becoming all too common that the press, who are not allowed to put the defendant on trial (although they try, and some newspapers have received hefty fines this year) are now focusing on prosecuting bit players, the victim of which is justice as a whole.

  7. Blast you, wiggy, for such a brilliantly researched, analytical and persuasive blog which has made it almost impossible for me to think of anything else to say!
    You are particularly right to focus on the odious press’s desire to drag up aunt sallys in their desire to cast a fog over their reprehensible behaviour in making it impossible for another victim to receive justice. I, for one, am hoping against hope that the Attorney prosecutes the editors for contempt and asks for prison sentences.
    Yours,
    A beaten to it blogger.

  8. As you know I can be a bit sarccy with you at times…but as my dd said today, ‘people don’t say enough nice things to other people.”

    I am not a lawyer…hey you know that ;) but I do love your posts.

    I like the way they get to the heart of the matter in a way that non-lawyers like me can…you know…understand important stuff.

    Sit down a moment Moo and take a compliment. Ya not just a good law blogger. You are a good blogger period.

    The other interesting thing, bit of a sideshow really (but as you know it’s an area that fascinates me), is linked in to that ‘other’ debate, lawyers and blogs…ahem.

    What we are seeing with posts like this is not just the old cream rising to the top argument but also the usurping of traditional media for communicating content and commentary. You know, what me and Cushman keep banging on about, niche by niche change, little powerful communities united, sharing, refining, changing stuff cos we all want to…woo woo!!!

    Consider yourself RSS’d Missy ;)

    Jon

  9. I agree very much with this piece – which might surprise some. However, without going too far down the road of ‘but for’ causation, we should remember that the defence team would not have been put in the position had Bellfield told the truth and admitted what he’d done. Given that irrespective of the outcome of this trial he was going to remain in prison for life, what point was there to his not guilty plea? I guess bloody mindedness, feeding his publicity-hungry ego and getting out of Wakefield for a few weeks was reason enough for him. Blame not the system nor the practitioners, it is all down to Bellifeld. Again.

  10. This account and analysis has opened my eyes. I had very little knowledge of the case prior to reading this. Had I not read it I may have well have gone along with the populist press hysteria about “victims being on trial while criminals go free” blah blah blah.

    Thanks for creating an island of sense and truth in an increasingly ignorant environment.

  11. Brilliant piece where it highlights most lawyers are in general heartless bastards who don’t give a fuck about the victims of crime.

    I understand fully the process and it’s explained perfectly here for non-practicing people to understand, I cannot fault it’s writing but in the end an innocent family have lost a child and had their reputation dragged through the mud. They will never recover from that and all anyone brings up is the dad like fetish porn. So do the majority of judges I stand before daily.

    Maybe I’m losing my heart for practicing law as I see the pain it causes the people it’s meant to protect Sometimes I wish practitioners (myself included) could remember the human element of these cases, rather than hide behind cold legislation and case notes.

    • Really? It was certainly always my position that I had one eye on the wider consequences of what I was doing in court, and certainly in my sphere it is more common than not that those who are still practising do.

  12. Great piece and I completely agree with you.

    I haven’t practiced criminal law for about 15 years or so but when I last did, around the time that the “right to silence” was significantly restricted, there was much media hysteria that lawyers were allowing criminals to “get away with murder” (sometimes literally) without the recognition that every Defendant deserves a fair trial. After all, every one of us might be a defendant one day and I wouldn’t want my advocate prevented from pursuing a line of defence.

    As you and other say above, it is self-serving media hype. If they want a sensible debate on criminal law reform, perhaps they should ask whether an adversarial system is better than an inquisitorial court process. I’m not convinced but plenty of countries do it that way.

    Michael

    • I wonder if the modern press ever really want a proper debate on anything? There is little out there in the MSM that is actually researched and informed at the moment, which is hugely sad.

    • The unrestricted right to silence (that is, no conclusions to be drawn from silence) is part of the presumption of innocence. It was an offense against justice to abolish it, because losing the presumption does not give you an inquisitorial system as in France, it gives you China.

  13. Couldn’t agree more with this piece. Spot on.

    I am curious as to the police force’s failings in this too. The CC making those very unhelpful comments has added fuel to the fire and, according to the brief mention of it on the BBC, his force were criticised quite openly for poor investigation.

    Is there something of a distraction going on here?

    Moreover, this seems to be a part of a media/government PR battle against the defence side of the criminal justice system. This case, the Salford burglar stabbing, the £10.5 million prisoner compensation. Maybe the action taken by the NI Bar has caused fears of a strike in the England and Wales legal profession. It sure feels as though the time has come.

    I wonder whether I might have your permission to reference your article in my legal podcast this week? I will, of course, attribute appropriately.

    Ben

    • I was astounded at the audacity of the CC given the ineptitude shown by his force, rivalled only by South Yorkshire in the matter of Peter Sutcliffe.

      I also do wonder when the Bar will say ‘enough’.

      Yes, regarding your podcast, please help yourself.

  14. As a lay person I’ve found this blog post a most informative read. Food for thought, but I agree with your perspective that it’s not a #fail for the justice system, but rather our national press.

  15. Excellent article. The last time there was a hacks’ feeding frenzy like this about the ‘unfair and bullying’ trial process was in 2002 over Courtney Griffiths’ cross-examination of Witness B in the (first) Damilola Taylor trial. We all know, now, that his line of questioning was not only proper but also entirely accurate.

    The sort of rule changes that the Chief Constable of Surrey would like to see would quite probably have seen a murderer escape justice and two innocent teenagers convicted, if applied to that case.

    Some similar idiocy written after that case below:

    http://www.independent.co.uk/opinion/commentators/deborah-orr/bullying-witnesses-is-no-way-to-find-the-truth-589305.html

    • Of course the CC has his own agenda here, and would be very keen to keep the press gaze away from the conduct of his force in this investigation. I note there was little outcry about the apology he had to give to all the families of Bellfield’s victims.

  16. I am surprised by those facts about Mr Dowler (had heard about the suicide). I don’t doubt Bellfield has a case to answer (he is clearly a risk, and incarceration is the only safe step) – but he is surely going to appeal?

    On the basis of this blog I’d be into reasonable doubt territory (not quite 12 angry men level proselytising).

    Increasing though, people see justice as a concrete deliverable – not a process to partake in. So really, it’s blood law again, just with proxies.

    • It has been indicated he intends to appeal, yes, but whether he will get funding for it is another matter.

      It is a shame the media chose to present this case in the way it has; this is an excellent example of how it all works. But then that would require some research and thought, rather than bashing out some ill-informed fury, I suppose.

  17. As far as I can see, nobody at all has doubted that a defendant is entitled to put his defence. The thing which has been questioned is the manner in which this was done.

    • If you’d actually read this post, you’d note that it comprehensively covers the reasons why Bellfield’s defence needed to be put in the way that it was put.

  18. Thanks for writing this. I’ve spent the weekend saying how disgusted I am at the treatment of the Dowlers – these important legal implications would never have occured to me.

    It’s a great thing there are blogs like this to publicise actually informed opinion rather than media fury.

  19. What ‘evidence’ was there against Bellfield – Precious little, it would seem?

    Unless it is ‘evidence’ of what he MAY have done in 2002 , to establish that he did something several years later that looked similar to (what probably happened in) this case?

    ‘Post hoc’ doesn’t prove ‘propter hoc’.

  20. Absolutely superb legal blogging. The press has been ever thus, (I could cite cases from the nineteenth century through to the treatment of Bernard Richmond QC in the baby P trial, for instance) but your defence of the rule of law in action demonstrates why the blogosphere is better than that. Spot on, informed commentary from the likes of yourself is very, very welcome.

    • Thank you, that’s very kind.

      What I find most disconcerting this time is government actually seems to be listening, and making changes due to tabloid outrage. Daily Mail Government anyone? :s

  21. I understand that the judge refused an application to hear some of the evidence in camera. He also appears to be have some responsibility for the cock-up over the Rachel Cowles case.

    Don’t blame the media , blame Sir Alan Fraser Wilkie (£173k per annum)

  22. This is a copy & paste of my comments on David Allen Green’s blog on the same topic. It sets out the general legal position (with far less style than Wiggy) but my final point is my main one, namely that any attempt to restricting the means of defence in criminal trials would be a far greater affront to justice in the long term.

    “Our criminal justice system places the burden on the prosecution (on behalf of the state) to prove their case so that a jury can be sure of guilt. A defendant is not obliged to give evidence and rather can choose to put the prosecution “to proof” as happened in Bellfield’s case. This leaves his lawyer with only one option: to undermine the creditability of the prosecution’s case (in cross examination of their witnesses) by whatever means they can in order to plant seeds of doubt in the jury’s minds as to whether or not they can indeed be certain that the defendant must be guilty.

    Of course a defendant who chooses to not give evidence in his own defence will be subject to a direction from the Judge to the Jury that inferences may be drawn as to the reasons for their silence.

    This approach of putting the prosecution to proof occurs in criminal courts up and down the country on a regular basis and will continue to do so as long as defendants do not have to prove their innocence. More often than not, in my experience, such people will be convicted.

    This may lead to unpleasant questions being put to prosecution witnesses who have done nothing wrong however it is an entirely legitimate (if not morally comfortable) way of conducting a criminal defence.

    Horrific though the whole experience must have been for the Dowlers, I hope that there are no kneejerk reactions to changing a system which, by and large, gets it right. Restricting the means of defence in criminal trials would be a far greater affront to justice in the long term”

  23. The press print a distorted picture of what happens, without including the actual facts. This prompls an enraged public response. Politicans then make speaches and sometimes change the law based on the public response. Is it any wonder that we end up with so many bad laws when they are shaped by the pulic response to distorted reports in the news rather than a rational analysis of the facts ?

  24. Just been referred to your blog by a colleague after a similar (though far less cohesive) rant. An excellent article. Yet again lawyers getting the blame… The next step for the press will be to pulish Jeffrey Samuals QC’s fee…

    “The first thing we do, let’s kill all the lawyers”
    (2 Henry VI, 4.2.59)

  25. Not being a legal eagle, I am puzzled why the nature of dad’s pornography habit is relevant. That Milly had found pornography and was upset at dad and this might be a reason she had run away, that seems pertinent. But is there some suggestion that beacause he uses bondage porn that somehow he was a suspect in her disappearance??? That seems to be very muddle-headed and smacks of tabloid newspaper thinking rather than rational legal thinking. So why so much lurid detail about the specific nature of the porn?

    • The relevence is clearly the possible explanation for her disappearance.
      However, the defence are and must be permitted to cross examine on any area that is relevant either to the credit of a witness whose testimony they are undermining or to a general issue in the case. This was both of these. Where you have a trial process that must establish that a jury is sure of guilt, it must be open to the defence to explore all possible alternative explanations. As long as they are possible explanations and thereby relevant, it is entirely defence counsel’s choice how he pursues that; but what he must do is act in his client’s best interest, as well as ensure that he doesn’t pursue merely scandalous routes of cross examination, as Wiggy made very clear.

  26. I was sent here by Bystander, and this excellent piece has put you straight onto my bookmarks toolbar. A splendid riposte to the tabloid tendency.

  27. Hear! Hear!

    Thank you for a refreshing ray of principled common sense in this unpleasant business.

    Thank you.

  28. Brilliantly reasoned article.
    My one minor crit would be the inability to fully acknowlege that what was done by defence was an evil- albeit a necessary, lesser of 2 evils kind- in particular ‘I’m sorry the witnesses weren’t prepared by…’. Seriously, you’re saying prosecution counsel should guess the precise line of questioning (lots of them), then talk through that with the witnesses, not discussing the case but telling them not to worry? Or that the old ladies/volunteers of witness support should figure it out? And most of all, that any of that would make the experience 1 jot easier?

    • It isn’t actually hard in any case for either side to know how they are going to run their case, you just switch your thinking when you prep it, and it helps you be able to answer the opposition case.

      The prosecutor can discuss the case with witnesses, but not coach them – it is a fine line, but one which is drawn in the interests of fairness.

      Finally, the family and the prosecutor knew what was coming in this case because an application was made to have father’s evidence given in private, which was refused.

      I am not saying it would have made it necessarily easier, but knowing what is coming lessens the impact.

      • From CPS statement:
        Roger Coe-Salazar, Chief Crown Prosecutor of the Crown Prosecution Service in the South East said:

        “A prime focus of the prosecution team from the outset was to provide as much support to the Dowler family as possible. This involved a number of meetings to explain the court process as well as to discuss what might be said in court depending on the nature of the defence advanced. However we must recognise that there are some aspects of the trial, in particular in cross examination, which no amount of general foresight can ever prepare someone for. Even more so in this case due to the huge public interest and national media coverage.”

  29. Excellent post, but, surely if the ‘Plodding Plod’ had investigated the case properly in the intervening NINE years, then the cross examination of the family would have been an irrelevance!

    • One of the major problems faced (aside from the police errors, and there were enough of those) was that there was so little evidence, which of course makes it all the more important that the evidence which was available was tested properly.

  30. I have now pointed several people, including the Language Log blog, to this post.

    I’ve just posted several comments that may seem critical; I just want to mention here that I would have posted highly positive comments on the Baby P post if it weren’t currently closed to commenting. I don’t want to come across as a griefer.

  31. Brilliant article. Would love to see it in the Mirror or similar (although they seem to pursue the victim agenda as ferociously as the right-wing press) to bring a bit of balance and fact to the debate.

  32. Having sat through every day of R v Bellfield in May/June 2011 I have to take issue with some of the points Wiggy makes. Wiggy says that at the time of her disappearance Amanda did not have the best relationship with her parents. Not true, did you hear what The Honourable Mr. Justice Wilkie said at the sentencing, it would appear not. Also in summing up the judge said that the jury could rely on the fact that Amanda intended to return home that day and made no comment as to a poor relationship with her parents. The only person in court to suggest that Amanda’s relationship with her parents was not as good as it could be was Mr. Samuels. When rs. Dowler gave her evidence she stated that the letter and poems which had given rise to this line of questioning weren old, deffinately not recent; the contention that Amanda was not entirely happy at home was false. No witness, either live or read confirmed Mr. Samuels contention that she was unhappy or had a difficult relationship with her parents, in fact they all said the opposite, they were a close family. However hard Mr. Samuels tried to suggest that Amanda had been uncomfortable at the thought of being home alone with her father not one witness agreed with him. Fortunately for the Dowler family the jury who the judge described as a “sharp” jury who had asked intellegent questions were not persuaded by a defence who offered no defence statement and jumped from one wild line of defence to another. The large amount of evidence, albeit circumstantial was compelling enough for the jury to return a guilty verdict in just over a day of deliberations. Wiggy you let yourself down with inaccuracies which others who reply are taken in by. Of course the defendant is entitled to a robust defence but there is a difference between a robust cross examination and a hectoring bullying one, the difference in Mr. Samuels tone when cross examining a police officer who had worked on the case for the entire nine years as opposed to his tone when cross examining Mr. and Mrs. Dowler was extreme, perhaps he knew he would not break the police officer. For a father who had just seen his daughter’s killer convicted and sentenced to a full life term to say his family have paid too high a price for justice indicates a flawed system. Some small adjustments in the management of such cases could save another bereaved family from suffering such a horrific ordeal. For a case that was brought to court because it was in the public interest to have succeeded in further damaging an already damaged family cannot be seen as justice for the family.

    • To take your points in turn:
      Firstly, I pointed out that on the evidence it suggested she didn’t have a good relationship, and that evidence included her notes, and the angry and aggressive call her father made to her. No-one can know the relationship they had, as none of us have been present in the home.
      As for her notes, yes, it was Mother’s evidence that they were old, but again, that is evidence, not fact, it is an impossibility to know how old they were.
      Turning to the cross examination, the Judge has a duty to ensure it is fair in the circumstances. If it was ‘hectoring and bullying’, it would have been stopped.
      As for different tone with different witnesses, that is usual. Each witness is there to serve different purposes, and each witness is questioned accordingly.
      The family did receive justice – the evidence was tested robustly, and properly. That the questioning was painful to them does not mean the system has to change.

    • Sorry but I must concur with Wiggy here. Wiggy points out that the contents of the letter were evidence. The defence contends that the contents are indicative of a poor relationship. The only way to test that is to ask about it. That’s the point. In terms of the justice system as a concept that’s it. It doesn’t matter what the answer is (and anyone hearing the evidence is entitled to reach their own view) it’s the right to ask the question which matters.

      The judge’s job is, in part, to ensure that the question is relevant and to ensure that the witness is not hectored or bullied. I’ve given evidence in a couple of civil cases and it is tough – so I can’t begin to imagine what Mr and Mrs Dowler had to go through. I believe that it must have been awful beyond description. Even the most gentle cross examination would have seemed brutal to them.

      All of which goes back to the essential point which is that the media have focussed on how awful that ordeal must have been in an unbalanced and agenda driven fashion.

    • From CPS statement (repeated above but also relevant here)
      Roger Coe-Salazar, Chief Crown Prosecutor of the Crown Prosecution Service in the South East said:

      “A prime focus of the prosecution team from the outset was to provide as much support to the Dowler family as possible. This involved a number of meetings to explain the court process as well as to discuss what might be said in court depending on the nature of the defence advanced. However we must recognise that there are some aspects of the trial, in particular in cross examination, which no amount of general foresight can ever prepare someone for. Even more so in this case due to the huge public interest and national media coverage.”

  33. I just want to make it absolutely clear that your claim that Victim Support didn’t help the Dowler family prepare for the trial is untrue (although we have to be very clear about what we mean by prepare – as you should know, of course, that the one thing we don’t and can’t do is discuss evidence). Because of the high profile nature of the case we’ve had a full report from the relevant Witness Service manager to check that everything was in order from our perspective. So we can categorically say that they had the normal pre-trial support we would offer to any witness – in this case provided by one of our most experienced and thorough volunteers at the court.

    • I am very aware that yes, you cannot discuss evidence. However, given that the line of questioning was subject to an application to be heard in private, and given that your volunteers know the court system well, you can (and should) warn witnesses that they are going to get a hard time without coaching them.

      • I can say with confidence that they would have been warned they could face a hard time. It’s standard practice. What we weren’t able to do (as we didn’t know and wouldn’t know) was to warn them of the extent of the personal information that might be disclosed in open court.

        • Of course you knew – it was subject to an application to keep it private! By all means, defend your organisation, but don’t do it disingenuously.

          • Why so aggressive and critical? The fact that it had an application to keep it private would only tell us it might be difficult or contentious. It would give us no knowledge whatsoever about the content, and just how personal it might be. Nor can we anticipate just how traumatic it might be for an individual to hear it disclosed in open court. That’s an entirely personal reaction for someone that it’s virtually impossible to anticipate…

          • No aggression, merely a response. I appreciate as the Head of Marketing over at Victim Support you have to promote your organisation and the actions it took, but I really would rather you didn’t do it disingenuously. The application to have the evidence in private was made because it was personal and because it was likely to cause distress, which would have been exacerbated by having the press report it. It would have alerted the person on the ground as to the content fairly obviously. In addition the fact that this was questioning of parents whose daughter had been murdered, one would have hoped you would have been able to anticipate how they would have reacted, given your expertise.

            In your original comment you said you had received a full report from the person on the ground. With respect, your comments are demonstrating it was not quite as full as it could have been.

          • Actually, thinking about it, I would find it preferable that you used this case to make the point that some cases require qualified professional support as opposed to unqualified volunteer support; rather than have your unqualified CE making cheap remarks about barristers in the red tops.

          • Different question: Does this not demonstrate that the bar on advocates or others preparing witnesses properly – by taking them through their evidence and likely cross examination – breaches the human rights of those witnesses (particularly fair trial and respect for private and family life)?
            Hopefully we’ll be seeing Victim Support backing any move to have criminal courts give greater weight to the privacy rights of witnesses?

          • I think the bar should remain on the advocates in the case doing so, but I don’t see why it should apply to those who will have no other professional involvement. I find it quite astounding that where the family are witnesses they do not receive proper professional support.

  34. I arrived here from Roy Greenslade’s piece on his Guardian blog.

    Does a country get the media it deserves? I despair of the shallow, thoughtless, sensationalist approach of the media in this country. And people like the DPP and the Chief Constable of Surrey should have more brains and courage than to pander to them. The problem is that (for good reason) anyone in a position of authority lives in fear of the media. If you cross them badly enough they will, have no doubt, set out to destroy you. So the sensible response to the mindless furore would have been along the lines of your very thoughtful blog – though obviously in soundbite form – but that would just have prompted some vacuous politician to accuse the DPP or the Chief Constable as “being out of touch with reality” – whatever that means.

    So let’s not pretend that the criminal justice system is perfect and can’t be improved but the media howling for change is not a sound thoughtful basis for change. Sadly most of the politicians who “run” the country appear to have neither the intellectual capacity to understand the issue nor the backbone to resist the tabloid pressure.

    Whilst the media, and it’s not just the tabloids who are guilty, continue to behave in this fashion there’s little hope of sensible debate on any legal issue – apart from havens of sanity like this one. Keep up the good work.

  35. Justice is such a subjective term. I have always understood that witnesses and evidence must be treated “without fear or favour”. It is not unreasonable that the defence would try to imply the tone of the family interaction by revealing the porn information because it confuses the “beyond reasonable doubt” argument. Humans have a strong sexual urge – we wouldn’t have lasted this long if not. But this does not mean that anyone who looks at porn or bondage is a monster any more than a homosexual is attracted to every man on the planet or a woman wearing a short skirt is asking to be raped. If this post reveals anything, it is that the press is too busy making headlines, frequently from downright lies, than they are disseminating accurate information. Perhaps instead of overhauling the justice system, the government should address the irresponsibility of the press, which, in turn, feeds the pathetic baring-all television shows a la Oprah. It is, alas, also human nature to want to grub about in other people’s dirty laundry. Heaven knows why. As a nation we seem to have forgotten all about truth, integrity and honour in favour of what Victoria Beckham is wearing and whether Prince Harry is eyeing up Pippa Middleton’s bum.

  36. Just read your post (been meaning to for a few days having seen your tweets) and just wanted to say congratulations on a great piece of blogging.

    I must confess my initial knee-jerk reaction to the trial was outrage at what MD’s parents were made to go through after having suffered every parents’ worst nightmare. It’s a natural “gut” reaction, especially in the context of such a hideous crime and such a reprehensible defendant who refused even to appear in his own defence. However, the press have displayed rank hypocrisy in fulminating against the media attention which they themselves created, and which I am sure contributed greatly to the further trauma experienced by her parents.

    I am grateful to you for helping me see the matter differently with your analysis of the trial process.

    It does the world of blogging proud! (And that’s not meant to be patronising before anyone says it is!!)

    Jon

  37. Great blog as ever. You never cease to amaze me how well you write. An incisive, well researched and evidenced piece indicative of all your other blogs. Forthright, direct and thought provoking.

    Thank you

  38. Directed here from Guardian’s Law section – a truly first class piece of analysis and balanced thinking. I’m doing the GDL & BPTC (the old BVC) next year – I will have achieved my goal in life if I am able to express an argument as lucidly and candidly as you have achieved in this article. Indeed, given the criminal justice system as a whole seems to be under relentless attack by both the Government and the media, it is refreshing to hear some rational debate and dialogue for a change (in other words, I’m hooked on your blog now!)

    A couple of thoughts, though… Although I wasn’t there, from what was reported, the QC involved seemed to go after the Dowlers like a rabid dog (maybe someone who was there can comment?). In his excellent book “Defending the Guilty”, Alex McBride makes the worthwhile contribution (p.169) that “The most effective restraint on cross-examination, however, is self-interest because to be effective when questioning a witness, as in any form of advocacy, you have to take the court with you. Duffing up a witness might be fun and make you feel like a proper barrister, but the last thing you want at the end of your cross-examination is the jury saying ‘oh that poor witness’. If you vilify, you lose the jury and once you’ve done that, you’ve lost the case”.

    Is it therefore not concominant that, Mr Samuels QC, having “duffed up the jury”, made a tactical error and therefore increased the likelihood of a conviction in a case.

    Indeed, given there seems to have been so little reliable, solid evidence, as opposed to circumstantial evidence, one could be led to believe the jury might have been punishing the QC as well as the defendant for being so vindictive to the witnesses?

    Secondly, any thoughts on today’s bail ramifications – I took the trouble to read the whole judgement (I know, I have a sad life and I don’t get out enough). It seems to me entirely obvious that the police should have a certain amount of time to question a subject (96 hours) on the evidence they have and, unless they find further evidence, they either charge or decide upon no case to answer. I was surprised that, in practice, for the past 25 years, they have been doing otherwise.

    • I fail to follow your argument: how does examination of the witnesses constitute “duffing up the jury”? Are you implying that the jury had already taken sides and that the cross-examination constituted going against the jury’s chosen side.

      What evidence, beyond press reports, do you have for the statement: “there seems to have been so little reliable, solid evidence, as opposed to circumstantial evidence”

      Your statement “the jury might have been punishing the QC as well as the defendant ” suggests the jury based its decision on sympathy for witnesses rather than the evidence. Do you mean to question both the intelligence and integrity of the jury?

      • I meant “duffed up the witnesses” of course, not the jury. Lucky I’m not drafting pleadings for anyone!!!!

        Obviously, as I stated, I wasn’t there and only have what’s been reported, but the articles I’ve been reading for most of the day, including this one, does lend colour to the view that, with the exception of the “red car”, the evidence was somewhat thin – I am happy to be contradicted by someone who was actually in the court.

        I am quite convinced the jury takes a whole range of factors into account when listening to proceedings in court. Demeanour of the accused, what he’s wearing, whether a witness loses their temper, the “believability” of a witness, how they hold up under cross-examination. All these are not “evidence” per sea, but are still important factors that have influence on the outcome. Indeed, this is exactly the assertion that Mr McBride seems to be saying too.

    • Stuart,

      Your comment made me think of Scott Greenfield and his wonderful view on the opinion of students. I haven’t looked at his site for over a year I think, but within 30 seconds looking, I found this.

      It isn’t exactly on point but with a little thought you’ll get there.

      http://blog.simplejustice.us/2011/06/23/the-two-dimensional-te.aspx

      Ditch McBride, and read Greenfield, and of course Milly.

      All the best with your studies.

      CrimeCounsel

      • Thank you for the link – I have no doubt that I shall be an “unemployed lawyer seeking comfort” in due course. In the meantime, I shall shortly be an “unemployed aspiring advocate seeking solace from relentless examination”, no doubt. It is interesting the article is about a tenacious law graduate setting-up shop on her own! No tribulations with gaining a pupillage or the BPTC for her, it seems ;)

    • Hello!

      May I? Um, well, as it is my blog, I will.

      Firstly, thank you for you comments, that is very kind of you.

      However, you may want to really think about commenting on a post which is based around a critical analysis of the press, by quoting that very press back in the comments. Yes, the press may well have suggested that Jeffery Samuals QC was robust, but phrases like ‘rabid dog’ are not helpful, nor do they describe a mode of cross examination that would have stood the patience of the judge.

      I understand why you would be reading material like McBride, but what you won’t yet realise is witness handling is an art. The basic rules can be taught to you in a book, but you have to weigh up the witness, the jury, your client, the judge, and the evidence you are handling. As I said to someone else, I was actually at my most deadly, and probably most effective (based on results) when I was being the ‘smiling assassin’. In fact, I would suggest I had more bluster when I had a weaker case, but these are generalisations, everything is really a case by case basis, which is why we start out on little matters while we learn these extraneous skills, which can’t be taught.

      There is a great dichotomy in advocates. We are almost autistic with regard to law, and appear aloof or rude and are often told we are bad with people, but actually, we are a profession of people readers.

      Anyway, if you are off to do your legal studies, come join us all on Twitter. There is a large legal fraternity, from first year students to silks (and even some recorders). Everyone is very nice, and these sorts of discussions happen every day.

      • Hi Milly,

        Yes, you’re absolutely right about not being there, and I completely concur it is impossible to draw any firm conclusions from the reports as written by third parties. Indeed, there are so many varying points of view across the blogsphere as well as in the national media, it is quite difficult to distil any real sense of what went on.

        Mr Dowler raised this issue in the first place by stating “The questioning of my wife was particularly cruel and inhuman, resulting in her collapsing after leaving the stand”. I can’t imagine he would have done so had he not felt a sense of real grievance about his treatment, although whether this was as a result of unduly harsh questioning from defence counsel (as I so inelegantly described it – the rabid dog approach), or whether Mr Samuels gently led Mr & Mrs Dowler through their evidence in a calm and respectful manner but the experience still resulted in Mrs Dowler collapsing, I cannot say.

        However, all that said, I think we’re actually agreeing – a “smiling assassin” is frequently likely to be more effective than a “blustering bully” but I accept its a fine judgement call.

  39. Hi Milly. Don’t let all this attention go to your head because it is big enough already.

    Aside from that, well done isn’t it.

    x

    Oh, and I suggest my not-quite-so-learned-yet-friend above go and re-read Hookway, then visit here http://www.crimeline.info/ and read the Met guidance on Hookway, before making such silly comments

    • Thank you for the link – it was most interesting and useful. I’m unsure why you think my comment is silly, however. The judge’s summary, at p.27, states “It seems to me however, for reasons identified, the consequences are not as severe as might be feared in impeding police investigations in the vast majority of cases. This is simply because in the usual case a suspect returning on bail will either be released because the evidence is not sufficient to warrant a charge or he will be re-arrested under statutory powers because new evidence has come to light.”. This seems entirely reasonable to me. Indeed, the fact that the Met have arrived at a revised procedure that takes account of this ruling seems to amplify my view that the police are fully able to investigate in due process? Nowhere in this procedure does it outline any difficulties resultant from this ruling. In fact, despite much brouhaha from ACPO and others, I have seen no cogent argument why our whole system of justice breaks down as a result of this ruling, and neither did Mr Justice McCombe (see http://www.acpo.presscentre.com/content/Detail.aspx?ReleaseID=247&NewsAreaID=2)

      • I must be brief as I have a lot of work to do before tomorrow – many flaws in this new method so for brevity’s sake I shall name only one

        As detention clock runs out at 96 hours bail conditions are worthless as arrest for breach of the same means detention time cannot be used (“relevant time” has expired) meaning witnesses, victim etc are unprotected. Unless suspect commits brand new offence such as threats to kill, no new arrest can take place. Bail cons – for the inexperienced – are usually things such as “not to contact witnesses” to “reside – eat, sleep at certain address” etc.

        This is but one of many problems Hookway brings about, and with the need to bail far outside the relevant time obvious and necessary (forensic examinations, post mortems, gathering of further evidence, interviewing witnesses etc all taking weeks if not months for more serious investigations) before a charging consideration can be made not going away, the need for fast emergency legislation is a great one.

        Practically speaking Hookway is a nightmare, though I am fortunate to work in a force area that is currently paying it little heed.

        The system prior to Hookway has been working fine with little hindrance for the past two decades plus, it is not just the ACPO who are annoyed with this legal decision but “us lot” as well. I welcome fast intervention from the Home Office and emergency overiding before this becomes a mess.

        • Hi. I don’t understand how an arrest for breach of bail conditions is concerned with detention time. Detention time is dealt with in PACE, whereas arrest for breach is s.7(3) of the Bail Act 1976. The procedure comes before a magistrate who will decide whether to rebail the defendant, vary the terms of bail or remand in custody. Therefore, an arrest for breach of bail is a separate and different offence to the original and the detention time surely has no relevance (the clock would start again in that instance)? Or have I understood this wrongly?

  40. A very well written article, thank you for this :)

    In terms of solutions, prehaps an automatic ban on the reporting of such trials until a verdirct is reached? Also, if I stripped out all the partial reporting and biased information provided, just where do I go for the facts so I can make my own mind, rather than hve it made up for me?

    • Thanks lovely.
      There are already restrictions as to what can be reported while a case is ongoing to prevent the possibility of the jury becoming biased. As for where you go to find the facts, lord knows. I pieced this together from numerous reports, helped by having background knowledge so that I could read between the line.

  41. I agree with most of what you’re saying.

    But I’m not sure what

    “That your client is already serving a whole life sentence and will never be released regardless of whether he is convicted of this crime.”

    has to do with anything.

  42. While I agree completely with the core of your argument, I differ on one point!

    We do not know (I hope) what Bellfield’s instructions to his counsel were.

    A plea of “Not-Guilty” can mean, “I did not do it”, or it can mean, “I did it, but criminally”, but most often it means, “You say I did it? So effing prove it mate, and if you can’t then I walk!”

    Those whose plea has the latter meaning are most often those who decline to give evidence.

  43. As a layman I don’t necessarily have the best perspective on these matters, so it’s good to read points of view other than those fed to us by the media. This is especially true today, given the accusations of phone hacking of Milly Dowler’s voicemail.

    On another point – you mention that Milly was the third victim. She is actually the fourth – Bellfield is now convicted of a total of three murders and one attempted murder.

  44. Thanks for that. I wish this was said much more widely. I’ll post what I put on the venerable Fatbigot Opines’ blog here, from wence I was refered:

    Very well put. I am grateful that someone has had the courage to states these self-evident principles. I would go further – in fact, as far as Justice is concerned, the ‘victim’ is merely a witness and, in fact, merely one ‘piece’ of evidence among others. A crime is not a crime against a ‘person’ but, in fact, against the state, despite the creeping corruption of our legal language – contra Regina. It is the great civilizing virtues of our and others systems that the sting of resentment is taken out of the judicial process. Not only does justice not offer ‘closure’ (a horrible American neologism, as you say), in many cases, it inadvertently, and as an unfortunate but necessary consequence of due process, debases the so called ‘victims’. But, in the best case of best practice, it neutralises, by being impersonal, personal animus and, as it were, anaesthetises the rancour that is naturally there. This is the difference between our civilisation and (a bulwark against) barbarism.
    No, rather, what troubles me most about this is the way that the jury might have been prejudiced against an objective examination of the evidence by 1) the new ability of the prosecution to bring up the defendants previous record (he was a murderer therefore he must be a murderer); 2) the use of dubious witnesses; 3) the circumstantiality of much of the evidence ( a lack of an alibi is no proof that an alibi is needed ), the use of coincidence etc; and, finally, the use of what seemed to come close to hearsay and smear. I maybe wrong since I was not am member of that jury. But as for the defence, one fights fire with fire. What must be protected, above all, is the freedom to defend oneself, by all means lawful, against the overweening power of the state. That – or we have barbarism. I fear, of late, our attraction to the latter!

  45. As a lay person with little knowledge of the internal workings of the criminal justice system these days, can I begin by saying that I found this article and comment thread deeply interesting. Thank you all.

    However, I do have deep and powerful misgivings — anger even — at the ways certain parts of the legal system and the law itself works (or fails to work) in this (and other) country/s. Because my points are so far off topic in respect of this superb article and the subsequent responces to it, I hesitate to raise them here. However, I wonder if I can be cheeky and ask the author, if he can find the time, to look over my blog and give me his personal views of the information, stories, suppositions and facts contained therein? If not, I will understand, but it would be facinating to get the view of someone within the legal system on the issues I raise.

    The address is as follows: http://justamanwriting.blogspot.com/

    Any insight or comments would be gratefully recieved.

    Thanks again. A superb piece.

  46. An apology is in order. Forgive me. I said this, ” I wonder if I can be cheeky and ask the author, if he can find the time, to look over my blog” I should have said this “I wonder if I can be cheeky and ask the author, if SHE can find the time, to look over my blog” *blush*

  47. Brilliant, 3 times brilliant. That’s what I say when someone comments on the law: the law has 2 sides, 2 narratives are being told. This is the adversary principle, the tentant of the rule of law. The right to ample defence, as enshrined in many constitutions.
    As a former lawyer myself, I always pass the impression of being aloof and uncaring of the poor victims. I care about them, but I see things through the eyes of the law.
    As I used to say to clients; sometimes what is legal does not sound “moral” to you. But that’s how the law works.
    Yes, these disgusting tabloids initiate their campaigns to appeal to the basic human instincts, but they don’t care about the consequences. They want to sell papers I wouldn’t use to line my cats’ litter. They deserve better than this drivel spilled out by the Daily Mail/Sun/fill in the blanks.
    Wait, let’s not blame the tabloids only. It takes 2 to tango: if they produce such rubbish, it because there are people willing to pay for it.
    Thanks for this piece.
    I will comment about it on my own blog (somewhat related to law).

    • Thank you. Yes, there is a great muddying of the waters between ‘legal’ and ‘moral’. Often I see the lightbulb go on when I tell clients that the two are not the same!