PLEASE NOTE "THE ANDREW MARR SHOW" MUST BE CREDITED IF ANY PART OF THIS TRANSCRIPT IS USED Andrew Marr interviewed former Director of Public Prosecutions Ken Macdonald on June 26th 2011. ANDREW MARR: Levi Bellfield was described by the judge at the end of the Milly Dowler murder trial as "cruel and pitiless". But those are words Milly's family apply to the justice system itself as well. Outside the court, they spoke of the horrifying experience of giving evidence and having their family life exposed in relentless detail. The police chief involved in the case has said that he is ashamed at how they were treated. The cry for something to be done has gone up, but what realistically could that possibly be? I'm joined from Norwich now by the former Director of Public Prosecution, Ken Macdonald. Thank you for joining us, Mr Macdonald. There has indeed been a lot of hostile comment about the way the trial was conducted, about the conduct of the defence barristers and the judge concerned, but very few concrete suggestions about what could be done where you've got a very, very sensitive case like this and a family in deep distress who were really put through the ringer in court. KEN MACDONALD: Well it's very difficult, isn't it? I mean the key question for the judge to ask himself in this situation is the extent to which the cross-examination is relevant to an issue in the case. If it is, it must be allowed. In a sense, even if it's distressing for the witness, the defendant has to be allowed to put his case. Of course the judge is supposed to stop and will generally stop cross-examination which is merely abusive, but the judge in this case was a very experienced judge - Mr Justice Wilkie, a highly regarded, experienced criminal judge - and he obviously decided that the material that was being put to the witnesses was relevant and admissible. Obviously it was highly distressing for them. ANDREW MARR: There's a longstanding problem about, for instance, rape victims going into court and facing this kind of cross-examination, and indeed in the past children too. Do you think there's anything that could possibly be done to mitigate some of the pain that's caused? KEN MACDONALD: Well again this is a job for the judge. In the old days defendants in rape cases used to be allowed to cross-examine the victims in person. And that led to a great deal of abusive conduct in court with victims having to relive the horror of what had happened, and that was outlawed some years ago. It can be a very fine line between cross-examination which is relevant, and cross-examination which merely becomes offensive, and judges have to be alert to that. It's never going to be a pleasant experience for people in cases like Milly Dowler's case to give evidence. It's always going to be a horrendous, gut-wrenching experience, and one can understand the public humiliation which some of the family members went through. Defence lawyers have to bear in mind, and ought to always bear in mind that if they conduct cross-examination in aggressive ways in cases like that, it can be a serious turn-off for the jury and, therefore, a profoundly mistaken tactic. ANDREW MARR: Sure. KEN MACDONALD: I'm not suggesting that's what happened in this case. But the judge really has to be alert at all times to protect witnesses appropriately, but of course the imperative is that the defendant gets a fair trial and he must be allowed, however appalling his case is, to put it. ANDREW MARR: So when the current DPP says there's fundamental questions here about the system, you would really disagree with that … KEN MACDONALD: Well … ANDREW MARR: … in the sense that this is about the conduct of individual cases, not about new legislation or even new guidelines? KEN MACDONALD: Well it's difficult to see what the new legislation would be. We've come a long way in the last 10 years. Generally witnesses are treated much better by the system than they were some years ago: we have scores of witness care units around the country; witnesses are kept more informed about their cases; the prosecuting barristers talk to them before they go into court, which is something which was forbidden in the past. So we've come a long way, but still it's inevitable that some trials will be very distressing for the people who are involved in them. And there are frankly no easy answers, which is why no-one's come forward with any simple solutions here. It's often a bad thing to make changes in the wake of particularly distressing cases. I think we need to draw breath. ANDREW MARR: What about the conduct of the media because that was also angrily criticised by the family? We don't tend in my trade to analyse ourselves very closely, but do you think there's lessons to be learned there? KEN MACDONALD: Well certainly the media are reporting criminal cases much more freely than they were in the past. We all remember the case around Christmas in Bristol where Chris Jefferies, the schoolteacher, was treated appallingly by the media. Well the papers that treated him badly will now pay for it because he will sue them and they will be paying over large sums of money. I'm not generally myself in favour of prior restraint of press; I think we ought to have as free a press as possible. But the press have to publish and be damned and take the consequences. If they get it wrong, they'll get hit in their pockets. And I personally don't think we should be restricting even further the reporting of criminal trials. I'm not in favour of that. ANDREW MARR: And so to sum up, a dreadful case but the truth is it could very well happen to another family again? KEN MACDONALD: I think that's true, and one hopes in future cases judges will take all the care that they're supposed to take to make the experience as comfortable as possible, although very often it's not going to be at all comfortable. I'm afraid criminal litigation is often an unattractive thing. But defendants have to have fair trials and at the end of the day that is the imperative. ANDREW MARR: Ken Macdonald, thank you very much indeed for joining us. INTERVIEW ENDS
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