The findings come in the wake of the Milly Dowler trial which raised fundamental questions about the treatment of victims and witnesses in the court process.
According to researchers from the University of Bath, the Government needs to go beyond ‘quick fixes’ if it wants to make sure that victims and vulnerable witnesses are protected.
The study observed adult rape and sexual assault trials over a three-month period to examine court responses to sexual violence victims. The findings, which are due to be published in Feminist Criminology, support previous research into non-sexual violence trials and are applicable to all vulnerable witnesses.
The research found that:
- Victims were caused extra stress by severe delays at trial.
- Despite having separate waiting areas, victims could still ‘bump into’ the defendant outside the courtroom.
- Victims were treated with suspicion if their actions were deemed ‘irrational’.
- Juries were told to be beyond any doubt rather than beyond reasonable doubt in order to convict.
- The prosecution’s responsibility to prove the case put the victim’s actions on trial, instead of the defendant’s.
- Trials were all about winning rather than finding out what had happened.
- The focus on winning led to manipulation of the evidence and victims being asked irrelevant questions to make them look ‘unworthy’.
Olivia Smith, researcher in the University’s Department of Social & Policy Sciences said: “Some barristers have quite rightly argued that fundamental changes should not occur based on one case alone, but here is the latest research among decades of studies to prove that the humiliating treatment of Milly Dowler’s family is not an isolated incident.
“The Government focus on short-term change is comparable to putting a plaster on a gaping wound. We’re calling on fundamental reform to improve the experience of victims and vulnerable witnesses.”
The researchers are recommending:
- A shift in barristers’ priorities away from a ruthless focus on ‘winning’ to a more balanced approach focused on finding out what happened, with both an ethic of care for the victim and due process protection of the defendant being central to procedural justice.
- Changes to the way legal education is taught and encouraging solicitors to instruct barristers on a notion of fairness rather than simply case ‘success’ rate.
- Introducing independent legal representation for victims, who can object to inappropriate or irrelevant questioning.
- Where key witnesses are particularly vulnerable such as rape or murder cases, courts should draw on good practice from other contexts. For example in the Inquisitorial system used in continental Europe there is a focus on finding out what happened rather than winning. The Children’s Reporter Scheme in Scotland currently adopts similar principles.
Dr Tina Skinner from Bath, who supervised the research, added: “What happened in the Milly Dowler trial is not unusual. Research has shown that the prosecution frequently uses inappropriate evidence, with many judges being unwilling to intervene because they are worried about being appealed.
“Victims have rights, as well as defendants. Levi Bellfield’s barrister may well have simply been doing his job, but we have to question why we continue to have an adversarial criminal justice system where the aggressive questioning of victims and witnesses is expected of barristers.”