Justice under examination

Much has been written about the harrowing cross-examination of Milly Dowler’s family during the trial of Levi Bellfield. One of the strangest remarks was written by Peter Lodder QC, Chairman of the Bar, in his desire to defend the colleague who had conducted the cross-examination.

Lodder wrote in the Times last week that “The case against Bellfield was not strong.” If that really is the case, shouldn’t Lodder be worried about the unanimous guilty verdict? But Lodder expressed no concern on that score. He followed up his comment about the weakness of the prosecution case with the virtual non-sequitur that the police had initially suspected Milly’s father.

The key word there is “initially.” It is hardly surprising that the police typically investigate possible suspects within the family in cases of murder and abduction. There are too many tragic cases of family arguments taken too far for the police not to look close to home. But that line of investigation was dropped by the police once they had pursued it. And, more to the point, the cross-examination of Mr Dowler during Bellfield’s trial does not appear to have been designed to show that the father was the real culprit – merely that Milly could have been running away from home. Nine years on from the 2002 murder, the initial suspicion of Mr Dowler is a red herring, both in the trial and in Peter Lodder’s article.

It is becoming something of a cliché to assert that defence barristers must argue whatever case their client instructs them to submit. But it isn’t that simple. Two points stand out for me in this case.

First, the defence argument doesn’t seem to get them anywhere. What if Milly really had been unhappy at home and had chosen that day to run away? The link to Bellfield was based on where she was last seen, regardless of whether she wanted to go home from there or to somewhere else. How did it advance the defendant’s case to expose the inner workings of the Dowler family?

Second, it must be right, as a matter of principle, that a defendant should be free to state in his evidence the version of events that he asserts to have happened. But this line of cross-examination wasn’t based on anything which Bellfield had asserted, nor could he from his own knowledge. The “running away” argument was speculation. If anything was to be achieved by the defence publicly exploring the family context for evidence of an environment in which Milly might have wanted to abscond, it would need to have been supported by evidence that she had acted upon the urge after leaving school on that particular day. Was there any evidence of that?

Let’s take a step back. If the case against Bellfield “was not strong”, as the Chairman of the Bar asserts, our justice system rightly demands that it be challenged. There have been too many wrongful convictions for it not to be allowed. But I’m not sure that causing distress to Milly’s parents advances that aim. It may even have brought about the opposite result. It may have led the jury to conclude that Bellfield had nothing positive to say in his defence.

Peter Lodder QC concluded his Times piece by saying that the Bellfield case would be a poor reason for changing the law. He’s right on that limited point. It is not the law that needs changing. But the manner in which it is sometimes practised could do with an examination of its own.