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350 21 July 2002Justice in Court a German footnote I spent the whole of 1963 in Germany, studying German law. At the instigation and expense of both Governments, a number of young UK barristers and solicitors were trained in German law, as part of preparations for UK accession to the Common Market (which was eventually vetoed by De Gaulle, in that year). I specialised, towards the end of the year, in German administrative law, and that was to influence much of my life thereafter. But before we specialised, were were given an excellent grounding in German civil and criminal law, at the Land Ministry of Justice in Dusseldorf and at the University of Cologne. And we attended several criminal trials. German criminal justice has abandoned the tradition of deciding matters on a single "day in Court". Other Continental jurisdictions have gone the same way, for reasons of expense and professional convenience. Civil and criminal proceedings resemble a long drawn-out administrative process, with "The File" being dealt with by a number of different judges at different times, evidence taken in a number of different locations, in a system where the probing of the judge replaces the adversarial cross-examination of the UK system. And it is a feature of this system that the Judge is constitutionally enjoined to establish the truth, before reaching a decision and imposing any sentence. Sounds great, doesn't it? I thought so too, until one case completely changed my view. A young woman was before the Dusseldorf Court on two alternate charges (a) infanticide, or murder, of her new-born child or (b) concealing a birth, a lesser administrative offence. The birth had occurred in 1960, three years before, and the proceedings had been continuing since then. The poor haggard young accused appeared before the Court (which was sitting with a combination of lawyers and lay jurors - Germany has no jury as such, but lay adjudicators are brought in to sit with the professional judges, and they are in a majority). She was brought from prison, where she had been in detention. What had happened was this. When she first stood trial in 1961, some six months after the event, the key question had been whether the child had ever breathed, i.e. whether it had been legally "born" in the eyes of the law... The unmarried girl had been on her own, and had literally, on her own confession, given birth to the baby sitting over a bucket of water. The body of the child had fallen straight into the water, and it "died". Medical evidence established that the lungs were inflated at the time of the post mortem examination. But her defence lawyer questioned whether they had been inflated by the inhalation of air. He called evidence to show that, because of the timing of the events, vapours could have been generated by the putrefaction of the lung tissue. There was real doubt about what had happened, and the medical evidence did not resolve that doubt. Now, in an English Court, she would have been immediately acquitted and released, by any jury. There was no proof of her guilt "beyond reasonable doubt", and the young girl could have have got on with her life - safe (thanks to the Double Jeopardy Rule) from any further threat or anxiety. That would have been the right and just conclusion. Not so in Germany (or in any Continental system concerned first-and-foremost with "truth"). The conscientious German judge, enjoined to establish the truth, ploughed on to establish that further research would be able to prove whether or not the vapour had been oxygen or putrefying flesh. But that research might take 12-18 months before a conclusion could be reached. Fine, said the Judge, get on with it. The accused was kept in prison all that time, albeit with some generous home-leave arrangements. After all, she charged with a variant of murder, and that could not be taken lightly. And eventually, in June 1963, her case came up again. I heard those proceedings. The evidence was unequivocal: the vapour had indeed been oxygen, and the baby had therefore been alive when its fragile body hit the cold water. The conclusion had to be Infanticide, murder, with the prospect of of an extended prison term. But that is not what happened. Here, the lay judges (as I believe, to this day) stepped in. She was convicted, against the evidence, of the lesser offence of merely concealing the birth, and released straight away. I think they were horrified by what the judicial system had done to this young girl - and they were determined to use their majority to do justice, as best it could still be done. Our system, with its insistence that all the evidence is brought to court, on trial day, for cross-examination, would have given this young girl justice. With Blunkett's abolition of double-jeopardy, however, she would have faced the risk of being tried again - the medical evidence, as I heard it with my own ears, was unequivocal. the current preoccupation with DNA evidence is misleading: proof may later arise, in a thousand different ways. She was guilty of infanticide. And if the verdict had been left to the professionals, she might have spent several more years in prison. I am passionately in favour of juries, and of lay involvment in all phases of our public life. I am passionately in favour of retaining the day-in-Court form of justice, when all the parties have to confront each other. I am equally convinced that the Double Jeopardy Rule must stay. We must all have a degree of certainty in our lives, to assist us fight life's many uncertainties. Even those who have done wrong are entitled to that sense of security, once the trial is over. Whenever I hear anyone preaching the importance of "establishing the truth" of everything, my mind returns to the haggard face of that young girl, in that 1963 Dusselfdorf Courtroom. Truth is not everything it is cracked up to be.. These are matters of quite outstanding importance, and it is vital that a way is found of conveying to the Labour Government just how misconceived its proposals are... Drop me a line > < Back to Home Page
Pay is not the issue
These are
difficult issues. What do you think?
352 20 July 2002
Don't confuse
What role should Labour play, in the employment market-place? Labour should advance on two fronts, and withdraw on a third.
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353 25 July 2002 The Newport Manifesto
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354 -- July 2002of the Home Office. sense of outrage ?Drop me a line > < Back to Home Page
355 -- July 2002 Those are glittering prizes. It would be good to hear from other kindred spirits, who take constitutional reform seriously! there are not many of us about... Drop me a line > < Back to Home Page
356 -- July 2002 a browse – check it out. consider signing? Drop me a line > < Back to Home Page
357 -- July 2002t lives. Should the Party now de-couple from the Unions? Are there strong arguments in favour of divorce? Drop me a line > < Back to Home Page
358 -- July 2002it… commuters seeking to preserve their subsidised privileges? Drop me a line > < Back to Home Page
359 -- July 2002 fulfilling life. many other views are held, even on the Left - what do you think? Drop me a line > < Back to Home Page
F ootnote one Drop me a line > < Back to Text
Footnote two
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