It was something of a shock for us, though not wholly unexpected, but if you have access to the internet, and type a phrase like, “judge called me a liar”, into a search engine like Google, over 18,000 entries will come up, admittedly not all about judges calling witnesses liars (indeed many are about parties to a case suggesting judges themselves have been less than honest), but enough so that you can begin to see there is something of an epidemic at hand.
And that’s not all.
Type the phrase, “Barrister called me a liar” into a search engine like Google, and over 31,000 entries will flash on to your screen, many of them related to current and contemporary family law cases in England.
These are sobering statistics and they do not sit well with the often admired British Way, which implies a cool, calm and collected approach, to things like cross-examination. We expect our justice systems to be places where human beings are treated with dignity and respect, regardless of alleged transgressions, but when victims of sexual abuse and one-on-one crime are accused of being liars or worse, as in the recent case of 40-year-old paedophile Neil Wilson, where a 13-year-old girl was accused of being predatory, we don’t just expect a certain level of decorum. We demand it.
And whilst public outcry has seen Mr Wilson’s suspended sentence increased from 8 to 12 months, which means in any event that Mr Wilson will still be released back into the community, there are still un-addressed fears over whether Mr Wilson is still a risk to young girls. Nevertheless, it is deemed par of the course for certain types of interrogation in child sex abuse cases to take place, despite growing evidence which shows quite clearly that aggressive questioning usually elicits the worst results and is often emotionally and psychologically damaging.
But so ingrained is this attitude towards cross-examination and the kind of hostile and baiting language that is often used, that even high-profile human rights barristers like Barbara Hewson will happy publicise their view that a 13-year-old girl should be viewed as predatory by the courts if judges deem her so and that it is therefore fitting for a judge to speak using that kind of language in a court of law, directed at a girl who has barely reached puberty. Granted, Hewson has an embarrassing litany of foot-in-mouth public statements which make her ripe for ridicule, but she is a perfect example of how the adversarial system has spiralled out of control, and allowed a culture of thuggish lawyers to be set loose on the court-going population.
And Lord Judge’s letter to Keith Vaz MP does little to quell the view. With more training being proposed for judges dealing with cases involving vulnerable witnesses (and we assume this is to include vulnerable adults as well as children), our Lord Chief Justice still does not touch upon the culture of caustic cross-examination and the prolific use of derogatory language aimed at minors and vulnerable witnesses in court. It’s all just deemed fair play, in a system which takes the view, ever more forcefully as money, time and tempers are short, that the means justify the ends.
This cannot be the mantra of a sophisticated and progressive system. We need to implement standards for questions put in cross-examination, the language used and the frame of mind our lawyers and judges should be in when seeking out the truth. Ironically, two months before Mr Wilson’s case, The Guardian reported that the Justice Minister, Damian Green had taken the view that courtroom treatment of witnesses often left them feeling traumatised and has since asked for a full-scale review.
As long as we allow a culture of brutish questioning, coupled with a lack of common sense when it comes to how we treat all witnesses, including minors, (Barbara Hewson’s less than intelligent views on why a 13-year-old girl could ever be viewed as legitimately predatory is another article in itself), we can never call ourselves thoroughly modern. There are a thousands of ways of asking the same question or delivering a judgement, equally as potent, if not more so, than resorting to name-calling and prejudicial jibes. The old adage, it’s not what you do, but how you do it, rings true in a world where there are many different ways of eliciting the truth and handing down reasons for judicial conclusions, and not all of them are equal.
Mr Ryder can make all the reforms he likes, and our criminal justice system can do the same, but we will only ever truly break new ground, if we can learn to break old habits, and replace them with new and better ones.