As the Lady Chief Justice swore in the Lord Chancellor, Shabana Mahmood, both clothed in extravagant ceremonial dress, on 15 July, she reminded us that Mahmood was drawn to the law by the popular television series Kavanagh QC. The case for a humane portrayal of the criminal courts was instantly made. In her latest book, Rough Justice, Her Honour Wendy Joseph KC offers a more cerebral version of Kavanagh, using the intimate drama of the courtroom to interrogate what “justice” means. With sensitivity, suspense and an easy style she narrates four stories. Each is an amalgam of details from cases she heard over a decade sitting as a Judge at the Old Bailey, the Central Criminal Court in London.
A trial’s primary purpose is to determine guilt, which the prosecution is required to prove. In our system, a jury of 12 citizens, randomly selected, swear to “reach a true verdict according to the evidence”. It falls to the judge to ensure they only hear evidence which informs this task, excluding anything which may divert or prejudice them.
Joseph’s cases focus on victims and the accused: the central figures whose lives are publicly dissected in the courtroom. We meet defendants in the dock: the cowed, the indignant, and the detached. There are bullies and the bullied. The wider cast includes Prosecuting Counsel – who opens with zeal and self-regard but learns humility – and Defence Counsel, whose “thankless and little remunerated” efforts, carefully sifting evidence, identify an overlooked, but vital, detail. There is a malign presence in the public gallery; a pathologist who has “an odour of the dissecting room” about him; Esme, Joseph’s all-knowing usher; and the hectoring list officer whose job it is to keep the system moving.
The jurors are a conscientious lot who take their civic duty seriously. But things do go wrong. Jurors’ childcare arrangements come unstuck because the child, or the carer, or the carer’s child “has come out in spots”. Or some mishap holds up the prison van. Usually it’s heavy traffic. In one case though, a defendant was found with a toothbrush “impressively reconstructed to do fatal injury”. The weapon was found because, “less impressively, he tried to conceal it up his anus”.
As the trials progress, Joseph shares her thoughts about justice and innocence with fellow judges over lunch. An old-timer who “loosens the strain on his waistcoat” as he prepares to eat a slice of cake, reminds her of the limits of her role. “The process is all”, he says. A judge’s business is simply to ensure the trial is fair. But is the process fair, Joseph asks, if a person’s vulnerability leads them to hold back evidence and prevents them properly participating in the hearing? Surely, it’s a judge’s responsibility to ensure a level playing field? How adaptable are the rules in the name of fairness?
In an earlier volume, Unlawful Killings, Joseph looked at murder. Now her focus is on “the fate of females” – women and girls and the crimes of which they are predominantly the victims: rape, domestic violence and sexual abuse.
Susan, a child of 11, alleges rape. “Uncle” Jason had befriended and helped out the hard-pressed family. On Fridays, he would collect Susan from Girl Guides until one day she arrived home alone in tears. Susan’s mother gives evidence at his trial: “the weight of her failures lies heavy upon her. But you don’t see what you can’t conceive of.” Then it is Susan’s turn. Pressed by Prosecuting Counsel to say why she took two days to tell her mother what had happened, she flees the court and refuses to return. She just wants to forget it all, she says. Back in the judge’s chambers, Joseph mulls over this development and consults the Old Bailey archive to see how such cases were dealt with in the past – a clunky narrative device but one that illustrates some important points. When it comes to human suffering, observes Joseph, “there is nothing new in the world”. In 1735 another child called Susan alleged rape. She too was challenged: why did she not complain of it straight away? If what she said was true, why did she return to the place she said it had happened?
“When you have seen enough of these cases” writes Joseph, “you begin to understand how hard it is for a young victim to accept what has happened and how great a temptation it is to simply pretend it hasn’t. And to go on pretending – until the reality – the soreness, the injuries, the pregnancy, the trauma – can’t be ignored.”
Our trial system has operated over centuries, but has our ability to deliver justice improved? We have only recently introduced ways to mitigate the ordeal of giving evidence in these cases. In 1999 (“yes” writes Joseph “I do mean 1999”) “special measures” were introduced allowing vulnerable witnesses to give evidence from outisde the courtroom: by video link or from behind a screen visible only to the judge, jury and barrister asking questions. Despite what we now know about memory – that “as time passes” it “fragments” and can be “lost, suppressed or distorted” – using video-recordings of a complainant’s original police interview as evidence is relatively new. It took a very long time to prohibit defendants in sexual offences cases from personally conducting the cross examination of a complainant or child.
Today we better understand the psychological damage these crimes can cause. Since 2010 judges have routinely warned juries to avoid false assumptions – for example that a delayed complaint must be untrue. “[Shame, shock, confusion”, fear of “getting into trouble” of “retribution”, of “causing problems to others or of not being believed”: all these inhibit an immediate report. And there is no normal reaction a traumatic experience or a normal level of emotion or distress. Juries are also warned that wearing “revealing” clothes, being drunk, or previous consensual sex do not signify consent.
These are important reforms. And yet, Joseph is clear that “in this area of law… few of the guilty are brought to publicly face their wrongdoing and pay for it”. The problem isn’t juries, she says, and cites research showing that modern juries convict in rape cases more often than in attempted murder, manslaughter, GBH and attempts to kill. The problem is many victims never complain to the police at all or they withdraw their complaints. The reasons “are easy enough to see”: victims are often targeted as those least likely to complain, for fear of being disbelieved. And for a woman or girl who has been physically hurt and/or traumatised “the telling of it” can be “agony”. Medical examination can feel like a further invasion, as can investigation of a complainant’s private life. A contested trial will involve being forcefully challenged and called a liar.
In 1735, Susan waited just over six months for her trial. Shockingly, it is now taking years for criminal cases to come to trial. This is a cruelty imposed on all those involved. Maybe, Joseph suggests, we need another way to handle these types of cases. Currently, victims shun the process and swallow their distress. Meanwhile perpetrators remain among us, unpunished.
A better understanding of human psychology has influenced the law in other ways, albeit slowly. We now recognise that long-term domestic violence causes injury to the psyche as a form of PTSD, which can induce depression and a sense of hopelessness. And “coercive control” is increasingly a feature of criminal trials. Joseph addresses the tension here between autonomy and paternalism. We each “must take responsibility for our own behaviour”, she says, but raises our responsibility to help those who can’t, or won’t, help themselves. How do you help people, such as women who profess love for their abusers, who don’t see the need of it?
In a criminal trial it falls to the judge to pass sentence on the convicted. As Joseph observes, our approach to punishment has softened. There is “no more castration, disembowelling, beheading and quartering”. No more flogging, whipping, branding, pillorying or hanging. But in common with many judges, she is not an enthusiast for our model of imprisonment.
Explaining our system to a visiting delegation of Chinese judges, she accepts the interpreter’s summary that she “sends bad people to prison”. What she doesn’t say, but thinks, is that sending them there “doesn’t improve them nor does it put right the wrongs they have done”. It “marks society’s disapprobation” and “keeps them away from the rest of us” for a period. Which, she supposes, “is something”.
This is a thoughtful rather than an angry book. Joseph recognises that reality is murky and many of us lead messy lives. She writes wistfully, exuding respect for a system which tries hard to be fair. But there are questions – good questions – which Joseph’s time on the Bench compels her to pose. Rather than expending all this effort picking up the pieces, can’t we do more to avoid people (especially women) finding themselves in the dock at all? She doesn’t provide solutions but caring and questioning feels like a measure of progress.
Within the system we know, its future rests on the Lord Chancellor honouring her oath to (among other things) ensure “the provision of resources for the efficient and effective support of the courts”. When trials can be heard within 18th-century time frames, that will be progress.
Rough Justice: Do We Have the Law We Deserve?
Wendy Joseph
Doubleday, 368pp, £22
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