The public are now becoming aware of something that has been an issue within the legal profession for some time: the way the cross examination of complainants in rape or sexual abuse trials can be improved. There is a difficult balance to be struck. On the one hand, defendants must be allowed to put forward their case by cross examining their accuser. On the other, justice can only be achieved by ensuring fairness to vulnerable witnesses and by minimising the distress caused to them through giving evidence.
Could this be the issue that finally gets the public onside with the criminal Bar?
Now that this topic has drawn the attention of the media, it is an area to watch given the huge influence the press have on the opinion of the public. Could this be the issue that finally gets the public onside with the Criminal Bar, as the only way to ensure justice is to ensure there are high quality advocates available? The proposed cuts to legal aid will not just affect allegedly rich lawyers, but also victims of rape and sexual abuse. If criminal legal aid is gutted, there will be no good quality advocates left to ensure the system operates properly.
The advocates that conduct trials of this nature are the key. Regulation or curtailment of cross examinations is not an option. Curtailing the right of a defendant to cross examine their accuser is a clear violation of their Article 6 right to a fair trial. However, for justice to be achieved there needs to be fairness across the board, with each party in the case being allowed to give their evidence in an environment where they can articulate it accurately. A traumatic cross-examination may well discredit the witness, but does nothing to fairly test their evidence.
The crux of the problem
Our justice system is an adversarial one. Cases are decided by each side testing the others evidence. This requires difficult questions to be asked of witnesses, and rightly so – accusing someone of rape or sexual abuse is a serious allegation that must be probed before a person is burdened with the stigma that such a conviction carries. Reliving a rape or sexual abuse will always, by its very nature, be distressing. It is the manner in which those difficult questions are asked that is fundamental to ensuring fairness in a trial and in reducing the trauma to the witness.
The advocates that conduct trials of this nature are the key. Regulation or curtailment of cross examinations is not an option.
The public has now been made fully aware of the remarks by a judge and barrister calling a 13 year-old ‘sexually predatory’ during a trial regarding sexual offences against a child. Recent news reports include those of one girl attempting suicide after giving evidence in the trial of those accused of sexually abusing her. Such is the sensitivity of these cases that, even when conducted properly, a cross examination can have devastating consequences. Frances Andrades’ suicide was attributed to her cross examination experience in the trial of her former music teacher. In fact, the judge in that case explicitly commented that the cross-examining barrister had behaved properly.
So how to do it fairly?
The importance of high quality advocates
This area is a stark example of how one of the most revered justice systems in the world relies on having highly skilled advocates working within it. It is entirely possible to put your case and test a complainant’s evidence without traumatising the witness for the rest of their life. Ensuring that this happens is down to the advocates operating in Crown Courts up and down the country on a daily basis.
There is a raft of special measures available already that are frequently used in such cases. These include video links, screens and Achieving Best Evidence interviews, to name a few. There are also the current proposals for hand-picked Judges to preside over especially complex grooming cases. Holding ‘ground-rules’ hearings where questioning styles can be discussed and agreed upon before the trial are also intelligent suggestions. Indeed, the profession itself already provides training to advocates senior enough to take on sex cases through the Advocacy Training Council and Advocates Gateway.
This area is a stark example of how one of the most revered justice systems in the world relies on having highly skilled advocates working within it.
Despite all this, the simplest and most cost effective way of reducing the distress caused to witnesses while still achieving justice is to ensure quality advocates are available. As has been seen, getting it wrong has far reaching repercussions, aside from the devastating effect on individuals. Young victims, or indeed any victims, will be less likely to come forward in the first place, let alone agree to give evidence in front of a court room.
The public be warned
There is a plethora of articles across every corner of the internet outlining how we will lose those quality advocates from our criminal justice system if Mr Grayling has his way, so I won’t paraphrase it all here. So far the public has been unable to get around the ‘fatcat lawyer’ image and throw support behind the Bar’s opposition to the proposed legal aid cuts. The media itself has been largely indifferent to the prospect of lawyers losing their livelihoods.
However, there is now an opportunity to make it clear how a poor quality system will affect victims as well as those accused. The media has now been alerted to the problem and they will hopefully realise the inherent need for skilled lawyers within the system. This requires resources not cuts. A good criminal justice system is expensive, but the alternative is unthinkable. One cannot imagine how bad things will get if the criminal bar is reduced to another failed experiment of privatisation.
Chris Pask is a Birmingham law graduate and recently completed the BPTC at the College of Law, Birmingham. He is seeking pupillage whilst working as a trainee advocate for a solicitors firm.