LECTURES - College of Social Sciences and International Studies ...

The Lion and the Ox
or will not do so, 38 and with these the trial judge has a herculean
task in preventing the humiliation and bullying of the
complainant 39 without provoking a successful appeal on the
ground that the defence was prevented from putting its case.
In my view the initiative and the responsibility at present rest
with the Bar. There is no longer a place for a forensic culture
which tolerates and even promotes something closer to bareknuckle
fighting than to a fair trial and a quest for a just
verdict, and which fails to insist upon advocacy which treats
with respect individuals, the good, the bad and the ugly alike,
who find themselves in the temporary but overwhelming
power of an interrogator in a wig. There is no worthwhile
evidence that inquisitorial systems are intrinsically better or
fairer; but it does not follow that they are without virtues, or
that an adversarial system has to demean and oppress those
who get caught up in it. Fairness in a trial concerns more
people than the accused. 40
It is perhaps in the criminal sentencing process that justice
comes under the cruellest spotlight. It is not simply that almost
every sentence except one prescribed by law is a compromise
between justice to the wrongdoer and justice to the victim, or
between such incommensurable imperatives as reform and retribution;
nor simply that the law which continues to prescribe a
life sentence for every murder is itself an impossible compromise
between justice and vengeance. Nor is it simply that public
comprehension of sentencing has been so damaged by media
presentation that the public simultaneously believe that judges
sentence too leniently and, when asked concretely what they
would do, turn out to favour sentences markedly lighter than
judges in fact impose. 41 It is that we continue to be both fasci-
38 Recent research by Jennifer Temkin has elicited an alarming disparity
between the Bar's Code of Conduct, which forbids the asking of questions
which mere vilify or annoy, and the admitted (indeed boasted) use by counsel
of vilification as a routine tactic in rape cases (Lecture, "Justice in Rape
Trials", October 27, 1998; publication forthcoming).
39 The Royal Commission on Criminal Justice (1993) considered this an important
but neglected part of the judicial role: see its Report (Cm. 2263) Chap. 8,
para. 12.
40 For a valuable critical analysis of the adversarial process see Jenny McEwan,
Evidence and the Adversarial Process (2nd ed., 1998). Louise Ellison's article
"Cross-examination in rape trials" [1998] Crim. L.R. 605 supports the view
that the faults of rape trials are the faults of criminal process and of the Bar
writ large. Her footnotes furnish an up-to-date bibliography of the subject.
41 M. Hough and J. Roberts, Attitudes to Punishment: findings from the British
Crime Survey (Home Office Research Study 179, 1998). The question whether
insistent media misinformation has been taken for public opinion and has led
to sentence inflation during the 1990s is an important one which needs to be
more fully addressed than I can do here.
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