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 for 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 happily 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.
Researching Reform 
Slightly off topic, but I have my doubts about cross examination and the emphasis on oral testimony.
My experience of civil/commercial/commercial cases is as follows. Barristers ask long winded tortuous hypothetical questions, sometimes of the “have you stopped strangling kittens” type; witnesses then don’t answer the question; and judges aren’t particularly good at telling when someone is telling the truth. My impressions I admit. I have no experience of family or criminal.
I recall reading that a psychologist (?) tested to see if people were better able to tell if someone was telling the truth by (a) watching the person speak, (b) by hearing a tape, or (c) by reading a transcript. (c) was the best, (b)the second best, and (a) was the worst. V unreliable, as I have no idea where I read it, or how the test was done.
How that translates to vulnerable or inarticulate witnesses, which probably make a high proportion of witnesses in family/criminal cases, I do not know.
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That’s very interesting, Luke, thank you. It’s food for thought that judges who are not trained in psychology, are given the task of trying to understand the narratives given by witnesses, which often boils down to whether or not they are telling the truth.
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Politeness costs nothing.George Carman was the deadliest cross examiner of modern times yet he was unfailingly courteous and polite to even the most reprehensible witnesses and achieved results that abuse could never have done.
Barristers who shout and abuse witnesses should be fined initially and finallydisbarred for continuing conduct bringing the bar into disrepute.
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Agreed, wholeheartedly.
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Having attended numerous Family Court Hearings and studied dozens of Family Law cases from across the world, I am left with the inescapable conclusion that the Family Courts have a Socio/Psychopathic Organisational Culture. The absence of even a miniscule amount of empathy and compassion is palpable, and scorn for any expression of emotions and feelings replaces any human feelings of sympathy.
The absence of any moral obligation, the mark of the psychopath, is very evident and manipulation, cunning, and underhanded conduct are the order of the day and are the glorified character traits among the legal representatives and judges. It is a culture in which the psychopathic abuser is absolutely at home and why such abusers are so relaxed and welcomed into such a culture.
A classic example was in a recent American Family Court where a mother screamed in distress and hysterics (a perfectly normal human reaction) when her children were ordered into the custody of their abusive father and she was ordered to have no contact with them after she had made allegations of domestic violence and child abuse. With mock indignation that His Court was exposed to such an emotional outburst, the judge imprisoned her for contempt of His Court. Such misogyny and matrogyny is a continuing feature of Family Court proceedings and although children are not despised, they are merely treated as inanimate objects and names on pieces of paper.
Judges don’t want to face children and are fearful that they may be confronted by the fact that children are human, with feelings and emotions and views on what their future should involve. So it is easier and more convenient to dehumanise them and refer to them simply as F3 or M2 to remove all reference to their humanity and human rights. A technique long practiced in repressive regimes and systems of incarceration – if people don’t have a name, then they don’t exist as people.
The Socio-Psychopathic Organisational Culture in the Courts perpetuates itself as each new counsellor recruit is indoctrinated by the system and is taught the laws of survival within such a regime, and to adopt the culture or perish. Female lawyers and female judges, who may be expected to have a reasonable amount of feelings and emotions, quickly conform to the culture and in time some become even more adept and even more punitive than their male counterparts perhaps seeking to prove the justification for their passage through the glass ceiling of the legal system.
Over the years, I have looked for the least signs of change and a recent decision of Justice Black to actually talk to a child in the Court and to show some degree of compassion and understanding looked promising, but alas it was a false spring and the system quickly lapsed back and recovered itself and dismissed the occurrence as an extreme aberration, never to be repeated.
Even rulings from the European Courts such as occurred in the P,C, and S case against the UK government (2001) when the practice of social workers of removing babies from mothers in maternity suites was roundly condemned and decried by the EU judges, has been steadfastly and deliberately ignored by social workers and by the Courts.
The Socio/Psychopath Rules the Courts – OK!.
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Natasha, Interesting topic which I hope you will allow me to come back on. An argument has been made that because litigants in family proceedings are no longer entitled to public money those with the ‘best’ lawyers will always win. I think the popularity of the European Court reflects the increasingly unfair society we live in. kip
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Thanks, Kip. The system really needs reform, from the inside out, rather than the other way around, which seems to be the approved method, always.
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