Tuesday, August 18, 2009

We are the champions...

The relationship between prosecutor and prosecution witness is a strange, and occasionally fraught one. Witnesses often see me as "their" lawyer, present in court for the sole purpose of helping them get that nasty neighbour sent down, or whatever it happens to be.

This is rarely the fault of the witness, who may have been told that I am their lawyer, who may have been asked for a Victim Impact Statement, or who may have been given the Victim's Code publication setting out "minimum standards of care" they can expect.

Of course, those who have been the victims of crime need to be taken seriously, and treated with dignity and respect, and I am all in favour of promoting that, but I am not "their" lawyer. I am the prosecutor, and I am there to prosecute on behalf of the state.

It has been said that prosecutors never win or lose cases; we simply present the evidence. It is up to the tribunal to accept or reject that evidence. If I make a good opening speech, ask the right questions, and can get the witness to come up to proof, then I've done my job. If that isn't enough to convince the tribunal, then the case might be crap, the tribunal might be asleep, or the defendant might be lucky, but in any event, the defendant is not guilty.

Anyway, the relationship with witnesses...the Justice Committee summed it up thusly:

"Telling a victim that their views are central to the criminal justice system, or that the prosecutor is their champion, is a damaging misrepresentation of reality. Expectations have been raised that will inevitably be disappointed."

I have seen a witness realise that I wasn't their champion -- when I asked for permission to treat them as hostile -- "disappointed" is a polite way of describing the look I got.

Full report here.


  1. You are there to prosecute on behalf of the "state" ?!...not yet comrade...you still prosecute in the name of the Crown. Prosecutors are meant to "do justice" and let the tribunal convict or not...that is your chief responsibility...

  2. And what is the Crown if not the state? It's not the wearer of the Crown; the executive wields Crown prerogative these days.

  3. What does "permission to treat" mean? Is it permission to cross-examine them?

  4. As someone's already pointed out, for my purposes, "state" and "HM Queen Elizabeth II" are alike in meaning. Law reports are in the format "R v Smith", the "R" being Rex or Regina, as appropriate. I'll leave my personal views on the monarchy to one side.

    Treating witnesses is frowned upon, but usually involves tea and scones. Treating witnesses as hostile is what I would have been typing about, was I not so tired. Thanks for bringing the matter to my attention. Treating a witness as hostile is when you are permitted to cross-examine your own witness, and can be done when the court is satisfied that the witness is "not desirous of telling the truth".

  5. ...if I may, further on the point of "treating the witness as hostile"- It allows a lawyer to ask his own client leading questions- which is generally not permitted. Asking leading questions can be faster paced and more probative thereby getting to the heart of the matter faster and often times revealing truth where non-leading questions would not. Witnesses often resent being treated as hostile... Your blog is excellent! keep up the great work!

  6. I am a former prosecutor in New York and prosecution is done on behalf of the "state" in as much as a prosecutor says to the accused: 'You are charged in the name of the People of the State of New York, in the County of Queens, with the following...' split hairs is you must- in the first comment- but the 'sovereign' IS the "State" be it the People of the State of NY or HMQEII. ...btw- great blog.

  7. So when the DPP refers to the "Public Prosecution Service" on the CPS website, what does he mean?

  8. I've read all the posts but still cannot get my head around "OBM" Optimal Business Model... is it a procedure manual or guidlines- what is it? Is it the "new measure" of productivity?

  9. The premis that the prosecutor is the victims advocate is a well meaning, if not ill founded concept. Firstly, until the the defendant is convicted the victim is the alleged victim, who may or may not be telling a true story. We all know some victims are less than candid and some down right accomplished liars who are using the court process to fight other more etherial battles. The prosecutor has a tricky road to tread maintaining ethical standards and fighting the good fight , but should never loose sight of the fact that in any human process things are not always what they seem. Maybe if the Harriet Harmon brigade were more interested in collecting decent EVIDENCE rather than mounting prosecutions on innuendo, invective and specious bad character applications maybe the decent honest juror might convict a bit more. however, giving everyone a cuddle won't do it!!!

  10. Aah yes, the "State" Prosecutor of Crown Prosecutor, it's all the same thing. No need to worry though it will soon be best value tested and farmed out to Tesco Law...with points as well!

  11. always knew the CPS wern't on our side!


  12. Too true, the CPS should be on no ones's side other than Justice, which may seem a bit old fashioned but clearly more relevant today than maybe it was in the past.

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