Author: Lily Pusey

I am a first-year law student at the University of Warwick. I will be exploring a range of legal topics and hope to give you an outline of the problems facing the legal world.

Change for Domestic Abuse

 The government’s protection of domestic abuse victims has again been proven to be insufficient and too sedate. Whilst the Domestic Abuse Bill, that has recently just had its second reading in the House of Commons, has achieved some progress in preventing the alleged abusee from cross-examining the victim, there are concerns that this is insufficient. Due to the recent pandemic there has been a big surge by the media in showing the impact on domestic abuse victims due to the lockdown and this has ultimately shown the public that the protection provided is inadequate. 

 Whilst the development of the bill can’t go unnoticed and there has been vast improvements in terms of understanding the psychology behind domestic abuse, we can’t be satisfied with the bill simply because it offers some small improvements. The bill proposes an expansion on the definition of domestic abuse and would allow a variety of relationships including, ex-partners and family members and the widening of this bracket shows the law is moving away from the stereotypical idea that it only occurs within a romantic relationship, and so in that aspect the law is being modernised. Fiona Read, head of the family team at Russell-Cooke, suggested that ‘the definition [will be[ tested’ and ‘what constitutes a perpetrator of a domestic abuse will need to be carefully assessed’, meaning that the definition is new and fresh and will need to be interpreted before it can be confirmed as a contemporary definition. 

The intention behind preventing abusers from cross-examining the victim is to remove intimidation. And yet the bill has failed to notice that there are still multiple ways in which the alleged abuser can intimidate, in particularly by cross-examining the couples children. This would clearly be a conflicting and worrisome time for any child and there needs to be support to prevent any child from becoming stuck in the middle and even worse from becoming threatened by any party.

When considering the current global pandemic these comments have even greater importance as Lord Chancellor Robert Buckland has noticed an 80% increase in referrals for his local refuge. People are being forced to remain in their homes which can intensify people’s emotions and lead to increase in the amount of domestic abuse, but it can also make victim’s feel like there is no escape and since the court system has seen a drastic reduction in the speed and efficiency of its services they are less willing to seek help. It’s extremely vital to reassure the victim that help is out there and the police are still responding to calls. Perhaps more importantly, we must ensure that we have the appropriate tools to ensure that these victims are safe and get their own justice. This means change is compulsory if we want to save lives.

Covid-19 Vs The Jury

 Covid-19 is not just a global pandemic, but it is a catalyst for the rapid change of the court system that we have today. The use of legal technology has been introduced via a slow and steady incremental approach, but the abrupt social distancing changes has exposed the vulnerable flaws in our legal system. Whilst some necessary changes have been easily adapted and resolved, there remains some that are more difficult to solve, for example, do we need a jury?

The idea of removing the jury has led to a huge amount of resistance; however, as the lockdown continues to be extended the postponement of jury trials becomes increasingly unjust. The courts now need to learn to adapt to covid-19 rather than ignore it. Many hearings are being conducted via video-link, and there is a fear that a trial with an in-person jury would be like playing Russian roulette with people’s lives, possibly meaning that an online jury is the safest way forward.

In Scotland there have been numerous proposals to mitigate this fear and include; reducing the number of jurors, which is similar to the approach taken in World War II, using the public gallery in the court room to adhere to social distancing rules and empanelling the jurors remotely. Nevertheless, these actions have faced criticism and have been seen as a knee-jerk reaction and labelled a draconian approach that violates the fundamental meaning of the law.

Statistically it is clear that having the opinion of 12 jurors rather than just one judge, gives a much more rounded reflection of societies expectations and prevents any bias. But, also there are advantages on a humanitarian level and its important to remember that law, especially in court room, is about the people and human interaction, it would be disproportionate to take these drastic actions and not be able to compensate for the violation of a fair trial. Even if jurors were not removed, but jury duty was completed online we would still be risking the humanitarian approach, an online approach physically puts a screen between the defendant and the juror, but ultimately it loses that intimate connection and creates a distance which could potentially make the situation feel more like a TV show than reality.

A strong advocate for juries is Robert Buckland and he believes that jury trials can still go ahead, but in a slightly more unconventional way. He praises the work of Cardiff Crown Court, as ‘everyone is getting involved in literally measuring out how court centres’ can allow for juries to safely take place, even if this means that they can run a few trials in a couple of courts in the main building and alternatively a few more trials can take place in a public building close by. Unfortunately this doesn’t mitigate all the risk les though and could still put the jurors at unnecessary risk.

I think what this shows is that there is a real conflict and confusion as to how the courts will proceed as the pandemic continues, but also after it has finished. Buckland suggests that there ‘is now an appetite to make at least some of these changes permanent’, and no doubt the online court system has given a lot of people more flexibility and time, but we must remember that there is a fine line and ethically we must not cross this. There can be clear circumstances as to when a jury is compulsory and when it is not, for example when deciding on a car parking fine a jury will have little to no impact, yet when this area becomes a little more grey and where do we draw the deciding line? Do we put on a financial limit on it? Or is it based off the offence? These answers are unknown.

This is an anxious time for us all, but it is also forcing us to answer questions that weren’t even thought of before this and is pushing the legal profession to technology at a much faster rate than expected.

The Digital Strip Search

Featured

The Crown Prosecution Service have been under immense pressure to reverse the falling conviction rates for rape and sexual assault. The policy for the CPS to not prosecute weak cases has had no significant effect, as the conviction rate in 2018 was only 1.7%. Over the recent years there has been growing concern for victims of these kinds of assaults and it has received global media coverage from campaigns like MeToo; however, the conviction rate is at its lowest in a decade. This has revealed that there must be a fundamental flaw in the justice system and has lead to desperate and brutish methods to change this, for example forcing victims to hand over their phones.

The motive behind this change most likely stems from R v Allan in 2017, where the case against the defendant was dropped when new evidence from the alleged victims phone cast sufficient doubt on the charges of rape. Quite rightly this case received large amounts of criticism and suggestion as to how deeply we must test the evidence and how the use of mobile phones in this modern world should be reflected in the court room. Ultimately leading to the implementation of the consent forms, which allows police detectives to take and download all information off the victims phone.

In regards to the above case this does seem like a positive step in the right direction, but it’s important to remember that we cannot assume the worst in people and assume the majority will act like the minority. The above situation is rare and these subsequent consequences can have a damaging impact, by possibly preventing victims from coming forward and allowing serial rapists to be free and also causing further severe trauma for the victim.

By handing over their phone the victim is not only being put on trial, but her whole life is essentially exposed and subjected to criticism and ridicule. There is no limit on the period the phone will be taken for and this can range from a few hours to several months, but also the data downloaded isn’t only from the date of the attack and onwards, but dates back to seven years. This is clear evidence that this technique isn’t about discovering the truth, but its about creating an opportunity for the victims credibility to be manipulated and destroyed by using the victims past actions to justify the defendants.

There is an evident sense of tragic irony as the victim must sign a consent form before handing over all their personal information, but yet numerous victims have been told that without handing over the phone their case will most likely be dropped. This creates an impossible ultimatum in deciding between justice and privacy and leaves the victim in a psychological turmoil. Whilst Max Hill, the Director of Public Prosecutions, suggested that these measurers will be taken ‘only when reasonable and proportionate’, the lack of evidence and witnesses in sexual offences ensures that this reasonability will be more common than not and so places the burden of the investigation onto the victim.

This policy puts the victim on trial and makes their personal history the crime. It encourages people to blame the victim and decide if she was asking for it, rathe than is the defendant guilty? This intent to find the victim a criminal is the clearest and yet most ignored reason for the CPS’s failure.