A Child's Hand is for Holding

by CW
Jun 2, 2016
5 min read

For most of us it is film or TV that introduces to the traditions and foibles of the

courtroom. The black gowns, the white wigs (which cost a small fortune) and the strange conventions that dominate the image we have learnt from Kavanagh QC and all those great shows.

One such convention is holding up the right hand whilst taking the oath to tell the truth, the whole truth, and nothing but the truth*. It’s not universally practised any more, but it is still recognised. It comes from an age old practise of branding – burning a shape with a metal implement – a letter or shape onto the right hand of a convict as part of the punishment for their crime. This would be done in serious cases such as a murder where for some reason the convict would not get the death penalty (maybe a clergy exception or something). Above all, it meant that if the same person should ever face trial, or be a witness in a court again, revealing the right hand would show everyone in the room – the Judge especially – what their legal history was and therefore to judge their reliability within that context.

(*Regardless or not whether anyone has bothered to investigate it, one presumes…)

If you think that was cruel, for a short period of time in 17th century London they even started branding thieves on the cheek, but it was later decided that this would prevent them from finding work and, it is assumed, would make it more likely that they would therefore need to return to crime to support themselves. After all, if you take away the opportunity to reintegrate into society how on earth can you expect anything other than recidivism?

Branding was used as a punishment and an embarrassment, even used by the army to shame deserters or those who were deemed “bad character”. But in general, branding was obsolete in the UK by the end of the 1800s. It really was considered too cruel and counter-productive. In a more modern legal system even evidence of “previous bad character” are allowed in court except in exceptional circumstances as they are considered to sway the jury from the actual evidence of the case.

Bear this in mind when considering the way we deal with cases of sexual abuse and rape in the modern day. We brand the accused totally publicly even before conviction. We drag their names through public interrogation; call them “monsters” and “prolific predators” before – sometimes never – providing any solid evidence to substantiate any charge made against them. Worse still, even before charges are made, we perform such media circus acts of social branding as part of the way we allow society to judge negatively under those circumstances, and especially when the accused is well known.

And it isn’t as simple of moving town and having to start a new life any more. News is local in a moment, national in a few minutes, international within just a few more moments. There is no escaping the social stigma – the branding – of an allegation. Even the murders of James Bulger were found despite entire new lives being built for them. When it comes to gaining employment, the defendant might not have been convicted, even the judge might have thrown the case out in disgust…but the “branding” might still appear on an enhanced DBS check.

People often use the phrase “mud sticks” to explain the idea of a reputation holding. But I think this misses the point. An allegation of a sexual offence is not like mud sticking, it is more like Napalm: it sticks and it is waiting there for it to be ignited again one day until it burns you to death one day.

It doesn’t just stick to the skin or the job application, though. It sticks to the mind. For some people the effect is profound and life-long. For many it is life-long but with medical intervention the accused can rebuild their lives, especially if their mental health problem is diagnosed early and treated.

However, that is part of the problem. “Diagnosed early.” Our legal system currently not only fails to protect the notion of “innocence until proven guilty” is actively enacts and facilitates the practise of the presumption of guilt, and especially in sexual abuse and offence cases. The mentality that the “victim must ALWAYS be believed” has become synonymous with “the accused must therefore be guilty.” It has to be, surely because it is impossible to believe both at the same time. So the “victim” gets the support, as do witnesses who need it. But the accused, pre-cursed, pre-branded, child…gets nothing. No protection before the case is heard, and no protection in the court. The whole experience is one hot iron branding its way deep into their mind and memory.

Isn’t that the problem, though? The choice to believe has no place in legal due process as it should be all based on the pursuance of truth and fact, irrespective of the crime. CPS guidance notes even specify that it is the reliability and credibility of evidence that must be established in order to justify the decision to prosecute a case. This is supposed to be regardless of how “serious” the case might be.

"A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be.”

CPS Guidelines

Yes, that means that even if someone is accused of rape or child sexual abuse it is incumbent on the prosecution to ensure that the evidence they present is strong enough to prove the case factually true. Anecdote is not enough. Hearsay is not enough. His word against hers is not enough…in any other kind of crime (even in murder). And yet we allow cases and even convictions of (mostly) men based on mere unsubstantiated, anecdote memory just because it is “more serious” a crime and it is sexual in nature. But as shown above – that goes against our own laws.

So why do we do it? Why do we permit the public humiliation and permanent branding of a defendant before they have even been convicted, often based on nothing more than someone’s account? And then we brand them further – conviction or not – by leaving a mark on their DBS and the records.

We brand them.

And even if mistakes are made or prosecutions fail; even if it becomes clear in the trial that the claimant has lied, the courts, and society, CPS or police...they all refuse to ever say a simple “sorry”. And it is that protection from the accountability of the law enforcers that has led to a system that can enact corruption in full knowledge that should any head have to roll, it will only be that of the outgoing manager. Even then, they won’t say “sorry”: instead they stick to “lessons have to be learnt.”

I have written before on how shocked I am about the lack of conscience in our legal system, and furthermore in our society. But imagine branding a child a “murderer” or “rapist” – burning that in their soft, innocent palm. Burning it into their mind.