Your duty to testify, and when not to

By Jonathan Goldberg, March 11, 2010
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Jeremy from Liverpool writes: My children attend a Jewish school in an inner city area. There has been a lot of bullying from local youths. Last week my son, aged 16, was standing at a bus stop with three friends, when they were robbed of their mobile phones by two youths. My son suffered a black eye. He attended an identification parade and picked out one of his attackers but I am now fearful of reprisals to him if I allow him to be a prosecution witness at trial.

● Jeremy, I have sat as a Recorder, or part-time judge, in the Crown Court for over 20 years, and when wearing this hat, I am appalled at the extent to which ordinary members of the public no longer want to co-operate with the police in the vital work they do to protect all of us. Prosecution witnesses all too often fail to attend court, and the modern mantra seems to be: "I don't want to get involved."

If educated people like you and your son do not stand up for what is right, what hope is there for society? Your son will receive all possible measures of protection from the police, including probably giving evidence from behind a screen or by video-link.

In my experience, such reprisals are in fact extremely rare. If they occur at all, they occur in a stratum of crime at a far higher level of sophistication than this. Moreover, you can expect judges now to get very tough with recalcitrant witnesses. If your son does not attend court voluntarily he will be summonsed, and in the final analysis may even be arrested. My advice is to tell the police your concerns, but thereafter your son should grit his teeth and do his duty.

If educated people do not stand up for what is right, what hope is there?

Hannah from Hendon writes: I live with my daughter, who is 26. Her father was an Israeli rabbinical student who left me when she was just 11. He now lives in the UK. We are from an strictly-Orthodox background. My daughter seems always to have found difficulty in meeting a man she liked, and she has just confessed to me that her father molested her sexually as a child. I am burning with anger and want her to report him to the police. But what can she expect if I do?

● Hannah, your problem is very different. The criminal law sadly is nowhere such a blunt instrument as when it comes to resolving sexual accusations, and especially cases of historic sexual abuse. We simply do not have a method of getting to the truth which will not involve further psychological trauma to the victim, who is made to relive the experiences in court in the most intimate detail. Her father is almost certain to deny the allegations, because in my experience such defendants invariably do. The sick nature of this crime, which I think by the way is far more widespread than we wish to believe, often goes hand in hand with a psychological state of self-convincing innocence in the perpetrator. Thus there will almost certainly be a contested trial.

Because so many years have elapsed, there is likely to be little corroborative evidence. By its nature the crime occurred secretly and in private. It may well boil down to her word against his, with the burden of proof being upon the prosecution and the standard being beyond reasonable doubt, before there can be a conviction. Therefore she must expect vigorous cross-examination, which can last many hours. It will be designed to undermine her credibility and suggest she is a liar or a fantasist, however elegantly it may be put by defending counsel. He has his job to do and will be acting on the instructions of a client who will be assuring him of his innocence, and may well appear persuasive to a jury.

The acquittal rate in this class of case is very high, which must cause further untold grief to many honest victims. Your daughter needs to ponder very carefully whether she has the strength and determination to undergo this ordeal. Some do, and find it essential to achieving a measure of closure. Others undoubtedly regret they ever started down this road. I have heard the court process being compared to being raped anew. As you are Orthodox, I would recommend you to consult first within your own community where there are support groups and wise rabbis who have experience of this problem and may have alternative practical solutions to offer.

The above is not formal legal advice and is strictly without liability. Readers should consult a lawyer on any matter concerning them. Questions to QC@thejc.com. All readers questions will be treated anonymously and all names changed. Jonathan Goldberg is a leading lawyer at Ely Place Chambers in London.

    Last updated: 10:01am, March 15 2010