Tag Archives: Justice

The Man or the Woman: who are we supposed to believe?

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I recently wrote an article for the SWP’s Internal Bulletin with 3 other lawyers (it’s starting at page 89, seeing as you asked…), arguing that the party should apply a civil and not a criminal “standard of proof”, with a burden on the person defending the complaint. In the criminal system, you have to have a presumption of innocence, because it balances what would otherwise be the unjustifiable imbalance between the information-gathering powers of the state, which has access to police, telephone records, medical data, etc, and of the accused, who has none of this. This burden make no sense outside the criminal system, outside which it would create injustice, because it makes it intolerably unlikely that any complaint would ever be accepted.

The point of a reversed burden of proof would be to give “some” weight (not necessarily a decisive one, but some weight) to the undoubted fact that women make very few false complaints of rape or sexual harassment. It is enormously difficult to come forward with a complaint of this sort: still more so against a man who is many years your senior, who is your employer or the de facto leader of your party.

In reply, one misconception that I’ve heard repeatedly is that anything other than a criminal standard of proof would weigh the process unfairly against the person defending a serious complaint. Only a “radical feminist”, it is said, would automatically believe a woman just because she made a serious complaint.

There are lots of fallacies with that argument. Here I want to focus on one, which is the idea that deciding who to believe is only or primarily about what standard of proof you operate. Yes, standards and burden of proof matter, for the reasons I’ve just given, but they are not the heart of the decision-making process. I have represented people in both criminal and family courts accused of rape or domestic violence. The former operates the criminal standard of proof, the latter the civil standard. Logically, a person accused of an offence is more likely to be believed in the civil as opposed to the criminal courts (That is the whole point of the burden). But whichever court system you describe, some people will be believed and some will not.

Essentially, what makes a compelling case is much the same in either a civil or a court system. What you want from a witness is much the same in either. You want someone who will give a detailed and plausible account. You want someone whose story is backed up by such documents as there are.

In the criminal system, this process is codified into what are called “adverse inferences”. For example, if a person is asked about their guilt, and they provide one version of events, but they then change their story, a jury is told that they are entitled to use that as evidence that the person is lying.

A jury is entitled to draw adverse inferences from previous convictions. That does not mean that all previous convictions are relevant. If a person is accused of income tax evasion and they have a previous conviction for assault, the conviction is probably not relevant. But as well as the fact of previous convictions it is also worth looking at the manner in which those convictions were obtained. If a person has loudly maintained their innocence, pleaded not guilty, and yet been convicted, that means that another decision maker has listen to them carefully and decided that they lied. You could draw an inference from that person’s past denials not merely that they were untruthful to others but that were not truthful to themselves.

There is a degree of technique involved. People who have been judges for 20 years tend to make better decisions than judges in their second week. The most basic skill is a simple human one of empathy, the willingness to listen, to start your starting assumptions and to watch and see if a case develops along the lines you thought. Losing independent-minded people from these sorts of roles, and replacing them with others of less empathy, is a recipe for poor decisions in future.

Obviously: you should not believe a person bringing, or defending a complaint, solely because they are a leader of your party. And you should not believe the person defending a complaint just because you have been told they did good once in a different job, or because they are your friend.

Some defenders of the Disputes Committee process will tell you candidly: “I don’t necessarily defend the DC. But they are in a hopeless position. These cases invariably pit one woman against one man, her word against his, and in those circumstances who should you believe?”

Courts of all sorts are put in this position most days of an average week. They do their best, they apply these and other simple rules of evidence, and they make a clear decision. You cannot rely on the authority of a court or a quasi-court, or whatever you want to call it, which lacks the confidence to make clear decisions. And if its verdict was “we believe the woman, but we are not going to make the findings she asked us to make” then its decision was less than no decision at all.

(Originally published, with thread here)

Reasons to demonstrate on July 28; number 9: the injustice of Olympic “fast-track justice”

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A number of newspapers have been reporting plans reportedly drawn up by the Crown Prosecution Service to the effect that for the duration of the Olympics, courts are going to be operating special extended opening times, from 8am to 7.30pm instead of the ususal 10am to 4.30pm, and there will be a special “fast-track” for offences committed in the vicinity of the Olympics.

The fact that prosecutors are talking like a British version of Judge Dredd does not, of course, mean that they have the resouces to deliver on the same threats. After all, just five weeks ago, the papers were reporting that there will be fewer courts open during the Olympics than there are normally; the Crown Courts will be operating at only 50% of capacity, “Thames and Stratford magistrates’ courts, both situated on the specific ‘games lane’, will operate one courtroom only (for overnight cases) and planned youth courts will not be held at Stratford. Highbury Corner will deal with priority custody trials and productions from Stratford and Thames, whilst gateway traffic cases will not be listed at Waltham Forest.” I.E. the Coalition’s cuts, which have hit the criminal justice system especially hard, will prevent fast-track justice from taking place in quite the way that the prosecutors are saying. (And the senior judiciary, whose summer holidays are precious, are not playing ball).

One part of the latest announcement though which I do find genuinely troubling, however, is the suggestion that Magistrates will be expected to carry out a larger number of hearings by “virtual court”, i.e. by video link from police stations. This is a problem. Where virtual courts have been tried in London before (as they were in 2010-2011), they have been a manifest failure. You have to set up a timetable for the hearings (which are booked in 15 minute slots each), there are often connection difficulties, and in practice the pace of the court hearings is considerably slower than the ordinary courts.

More worrying than the general inefficiency of the system is what it does to the meanigful content of justice. At a Magistrates’ Court hearing a person may plead guilty, and if they do the court is expected to proceed to sentencing. Fifteen minutes is usually far too short an amount of time to deal properly with sentencing decisions, and you can imagine what an inadequate sense the Magistrates get of the peronality of defendants – who they see as a smal blob at the other end of a TV screen – and who will often be a drug user, a recovering alcoholic, a young person who has been in trouble lots of times before for very minor offences, etc. Difficult decisions, such as whether to jail someone, or whether to refer them for treatment, end up being made on the hoof.

Bad decision are made which have a long-term impact on people’s lives.  You could say something similar about the Olympics as a whole.

Details of the main July 28 protest can be found below:

Running for the 96

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Solidarity greetings to Dominic Williams and the other five runners who are raising money for the Hillsborough Families Support Group (HFSG) and the Hillsborough Justice Campaign (HJC) by running the route from Hillsorough to Anfield, which is equivalent to 3 marathons in 3 days.

I was not at Hillsboborough, but found myself watching the game on television, sobbing at the images of so many people killed for so little good reason. I was 16 at the time and had been a Liverpool fan for several years. I wasn’t from the city, but had adopted Liverpool  in part because so much of the city’s culture (comprising music, art and politics as well as football) was bound up with resistance to the Thatcher government, which I too loathed.

I had started going to football matches for the first time that season, and used to travel up from London to Liverpool by train, joining a group of regular Liverpool fans who made the same journey. I didn’t buy tickets in advance; you didn’t need to in those days.

I attended the match before, which was an away game conveniently in London against Millwall, and found myself talking to a man in his late 50s or early 60s, an amateur referee. He was kind and generous; he saw me as a young fan attending a game by himself, and took me under his wing.

The following game was Hillsborough of course, and it was especially poignant to see that among those killed was a former amateur referee John Anderson, aged 62. Looking back on the events of twenty years ago I have no way of knowing whether it was John who I had met at the game before.

In a sense, what does it matter? Whether I knew them or not, people had been killed who were a part of me.

This isn’t the place to go into the ways that the powerful in Britain worked together to ruin the lives of the Hillsborough survivors: first by spreading lies about them in the Sun, then by re-writing the rules of the tort of neligence so that the families could not obtain compensation from the police for what the police did that day.

It just seems right to me that people should still be fundraising for the campaigns which are needed if we are ever going to have full disclosure of all the records from the day; and that this campaigning should take the form of running.

More details of how to donate here; http://hillsborough-anfieldrun.co.uk/