Deep breath.This blog began life with a dangerously illiberal random thought.
Why should we not presume as a matter of law that the account of a victim is fundamentally correct? Presume in the absence of evidence to the contrary. The consequences even more so: why should we make most victims ever have to relive their terror in court in public?
No I have not lost my reason. I knew perfectly well that such sentiments play straight into the hands of an intolerance conservatism that would diminish the role of defence lawyers even further. Of course I know that my precepts are far too widely stated. What about alleged victims in a domestic situation, who invent allegations to evict an unwanted partner out of the house? Are you really saying that they should be accepted on the nod?
No of course not. But more modestly, I really would like to start a debate about some victims who should be nowhere near a court to relive the ordeal which they have endured. Part of that debate should be to develop innovative alternative methods to present their harrowing accounts in court.
Let me draw up a shortlist of two.
1. Victims of burglary where violence by strangers is an issue.
Evidence in chief would be the simple video account they gave to the officer visiting their home with a film camera. Please note that I am suggesting they should avoid a police station altogether. Such an account would have a very powerful emotional effect as, for example, they point to the items of furniture against which they fell, as the intruder struck. Any cross examination should be filmed in advance at the scene or a venue which is not the court itself.
You see the point and the general thrust of the argument.
We are not doing nearly enough to make the victims of violence be able to relive their agony in as simple and sympathetic a way as possible.
2. Victims of rape and assault
I argued last year that in theory it should be possible for such victims never to have to leave the safety of their own home to give their account. I envisaged something like an outside broadcast truck outside. Of course I realized the financial constraints which would make such a suggestion impossible to implement nationwide in the short term. But there was the chance to start with a few exceptional cases.
So start by doing everything we can to make it easier for the victim to tell their story.
HANG ON! What about a defendant who has denies the attack from the outset. Is he to have even even less rights in such a victim centred-world? His fundamental right to have his case to be put squarely to the so-called victim. ‘THIS NEVEr HAPPENED.’
Of course not. I am troubled by the existing restraints on cross examination. I simply want to get to a position where we limit the damage we already do to some, as a part of the adversarial process. His case must be put consisely, clearly and once. Then left.
And no, since you ask, I do not favour the overthrow of the presumption of innocence.
I just want a better deal for traumatized victims.
Food for thought for court reformers.
Nigel Pascoe QC