Do you ever have those days where you feel as if you’re swimming against a roaring tide? In a sea of effluent? And you’ve long since lost sight of the shore? And you’ve forgotten to put on your swimming costume? And there isn’t a lifebelt in sight?
Or have that dream where some unseen hand has pulled down your trousers in public, leaving you standing there with your kecks about your ankles, wondering what went wrong?
Over the past few weeks, I’ll wager that this is the feeling of most criminal lawyers while we watch, aghast, as various media, MPs and special interest groups appear to conspire to gradually denude our criminal justice system of any shred of dignity, logic, fairness or due process. It’s like The Powers That Be have decided to move the criminal justice system out of the court room and into a theatre in which a Brian Rix farce is playing in perpetuity. Where, of course, all its clothes fall off.
(Justice denied, justice denuded: Pic by Wildy, genius by Phillips and Rix)
Now, I’ve got a confession to make.
No, not like the ones I used to knock out when I worked at a Soho based magazine empire in the 1980s. (And no, the Readers’ Letters weren’t real, they were made up by me and a girl called Jennie who lived in Cheam Village. And yes, I did used to include people I knew in the stories, particularly men who had crossed me, who would be portrayed in highly unflattering terms.)
The sort of confession where I admit something that will make a number of people reading this blog react with a loud “meh”. I’m a sex case defence barrister.
In the current media climate, this is not a popular occupation. Defendants in sex trials, and their counsel, have become the subject of a cacophony of caterwauling, and the protest from certain quarters has reached new levels of shrill in the past couple of weeks. Since the Ched Evans re-trial result, in fact.
Now, I’m not going to dissect those verdicts or the specific kerfuffle around the use of s41 of the Youth Justice & Criminal Evidence Act 1999 in that case. Far greater brains than me have done this already – in particular The Secret Barrister, aka @BarristerSecret, whose blogs on the topic you can find here and here, and Matthew Scott, aka @Barristerblog, whose article for the Telegraph you can find here. As both of these commentators point out, much of the baying and screeching has come from people who really ought to know better. And Vera Baird.
Still, all those MPs, and Vera Baird, have got names to make for themselves and electoral agendas to push, right? Unfortunately, those agendas now appear to be getting rolled out with the help of judges, academics and the MOJ, like a monstrous cheese being propelled down Cooper’s Hill.
A fair trial is something which we all take for granted. Especially any MPs, if they find themselves up before the beak. Oh yes, they’re the first ones to be lawyering up and extolling the virtues of our jury system and open justice. If you or any of your family or friends are unfortunate enough to be accused of a criminal offence, think about that.
At the moment, if the State brings a criminal prosecution against you, the burden of proving the case is on them. And unless and until the case against you is proved, you are innocent until proven guilty.
I say at the moment because the way some of the current squawkers have been banging on, some of you out there would be forgiven for thinking that the presumption of innocence no longer exists in the criminal courts. And that’s just when you listen to the pronouncements of senior judges, let alone MPs without the first clue about the criminal justice system or the law.
In fact, the situation is getting so dire that Guilty Until Proven Innocent is the theme of the forthcoming Criminal Law Solicitors’ Association conference: see link here. It’s something the Criminal Bar Association and Bar Council could well do with being more vocal about too.
Despite their paramount importance, the presumption of innocence and that other fundamental aspect of a criminal trial – that an accused person is entitled to call their accuser into court to have the accusation substantiated and questioned on oath in front of the jury – are being eroded by stealth. Lady Justice is not only being blindfolded, but divested of her trousers, bound, gagged and shoved into the boot of the squawking commentators’ Mini Metro.
When I read the stories about the proposed s228C of the new Policing & Crime Bill which is currently being debated in the House of Lords (see one of the reports here), I thought I had entered some sort of parallel universe, or was watching a modern day TV adaptation of The Trial by Franz Kakfa. The idea that politicians are actually debating whether to put this section into force defies logic and common sense, never mind completely removing an accused person’s ability to properly defend themselves or to receive a fair trial.
Just in case you’d missed it, the proposed s228C reads as follows:
‘Victims and witnesses of serious crime: disclosure
(1) A police force or police officer may not disclose the identity of a victim or witness of a serious sexual or violent offence to the person accused of the offence, if it is reasonable to assume that such a disclosure would put the victim or witness at risk of further harm.
(2) In determining whether disclosure is reasonable for the purposes of subsection (1), a police force or police officer must take into account the –
(a) previous convictions,
(b) mental health, and
(c) access to new technology or social media,
of the person accused of the offence.
(3) This section applies whether or not the person accused of the offence has been charged with the offence.’
Blogger @Defencebrief has already published an excellent analysis of the proposed law here. But just think about that for a moment.
According to that Guardian report I’ve linked to above, the proposed clause would apply to “stranger rape cases where there is currently no legislation on how and when a victim’s name is given to the accused by the police”. However, the clause itself does not appear to be in any way limited to stranger rape allegations. It simply proposes the withholding of the identity of victims or witnesses to ‘a serious sexual or violent offence’.
On the face of it, then, not limited to alleged victims but also not limited to alleged rapes of/by strangers. So who would be deciding whether a sexual or violent offence was ‘serious’? The police? The CPS? An independent body? Would this be the same ‘serious’ which applies in, say, the Criminal Justice Act 2003 s224, which defines specified offences and serious specified offences? A ‘serious specified offence’ being one which is (a) specified in Part 1 of Schedule 15 of the 2003 Act and (b) punishable by either life imprisonment or imprisonment for a determinate period of 10 years or more?
Part 1 Schedule 15 sets out what are ‘specified sexual and violent offences’. There is a massive list of these and a majority would, it seems to me, potentially be serious specified offences based on the available maximum sentences. So the position for an accused person would potentially be considerably worse than that suggested by the Guardian article.
Is this what the House of Lords are talking about? Or is there to be some other definition of what is ‘serious’? And who is going to decide what it is? And at what point in the proceedings? And if you’re pulled in for questioning having been accused by an anonymous person, how on earth can you answer questions? What if the position is that the accuser claims not to know you, but in fact there is some prior direct or indirect connection between you which might provide the motive for a false allegation, or be able to give you the ability to prepare your defence?
The example given by the Guardian article is a bad one. Genuine stranger rapes comprise a very small number of sexual allegations made, and in the case highlighted the accused had been caught in the act by an off-duty police officer. I’ve only been instructed in one such case in my entire career. In most cases there is some sort of prior link between the accused and the accuser, and that is an important factor for the jury to consider in weighing up the evidence given by both sides. So at what point are you supposed to learn of the identity of your accuser? Once you’ve been charged? Once you’ve instructed defence lawyers? At the door of the court on the morning your trial is due to start? Never?
Remember, the actual proposal is that this clause would not only apply to rape allegations but to countless other types of crime too. And not just to accusers but to witnesses as well? So would you (or a jury) ever find out that in fact an alleged witness was closely connected to either your accuser or to you? And in what circumstances?
And as @Defencebrief rightly points out, the proposed prohibition doesn’t appear to apply to the CPS. So are the CPS going to be entitled to disclose the identity of the accused to the Defence during the trial process, or before? How will they comply with their duty of disclosure in those circumstances? And is there actually any person out there who doesn’t have the potential to access new technology or social media? It’s a farce in the making.
My head hurts.
As if this wasn’t bad enough, we’ve had a number of other recent ill-conceived initiatives which have led the CJS to this parlous state. I’ve banged on about the Better Case Management debacle ad nauseam – see various of my previous blogs for that – but one of the latest of these is the scheme for pre-recorded cross-examination for ‘vulnerable victims and witnesses’.
This scheme was introduced under s28 of the Youth Justice & Criminal Evidence Act 1999, though not implemented in even pilot form until recently. It involves the cross-examination of the most important witness in what has usually turned out to be a sexual allegation – the complainant – being recorded vastly in advance of the rest of the trial. The aim of this is to avoid the witness actually having to attend the trial to give evidence.
As someone who has actually conducted a trial under the pilot scheme (involving allegations of sexual activity with a child), I’m well placed to comment on the efficacy and suitability of the provisions. In my own case, the pre-recording of the cross-examination of the complainant, who was by then aged 16, took place nine months before the trial actually kicked off. The recording itself appeared stilted and rehearsed, and the jury in my trial didn’t appear to think much of the evidence as they acquitted in under an hour.
A month or so ago, back came the announcement that the pilot scheme is now to be rolled out nationally (see link to BBC story here). Naturally, this being the MOJ, criminal lawyers at the coalface were surprised to find that there had been what passed for some actual Government evaluation of the scheme: the link to this is here. And guess what? Apparently the scheme was a resounding success!
Well, tell that to Defendants whose trials were conducted on this experimental basis. Tell that to the barristers who have had to conduct their cases with one hand tied behind their backs. And I include Prosecution counsel in this.
Unfortunately, when the success or otherwise of the pilot scheme was being evaluated, no one from the Government or the judiciary or any of the authorities foisting the s28 provisions onto the system actually bothered to ask for the views of any barristers who have conducted s28 trials. Except three, apparently. Obviously those of us who have to operate the system (from either Prosecution or Defence side) aren’t considered important to the CJS.
The evaluation document is a masterclass in seeing only what you want to see. We are told that one of the requirements for s28 trials was an ‘expedited timetable’, which meant that all disclosure – especially materials which the Prosecution have but which they don’t want to rely on as they don’t help the Prosecution case – needed to be completed before the cross-examination is recorded. In my case, this didn’t happen. Anyone working in the system will tell you that particularly when what is called third party disclosure is in issue (materials from places like social services or mental health authorities, for example), it can take months for such materials to be obtained and handed over. In sex allegations such materials can be vitally important for cross-examination, but if you’re only receiving these after the recording has taken place, you’re not going to able to cross-examine the complainant about anything relevant and admissible in them, are you?
Apparently, there were 390 cases evaluated in the pilot scheme. So that should mean up to 780 barristers or solicitor advocates involved, right? So you’d expect the evaluation scheme to speak to pretty well all of these. As I say, apparently, it spoke to three. That tells you everything you need to know about what’s going on here. See link to the blog from Transform Justice here for further info.
Since the evaluation was published, there have been some truly frightening further proposals doing the rounds about how cases involving ‘vulnerable witnesses’ should be conducted. One of these can be seen in Nigel Pascoe QC’s blog (link here). He’s another person who clearly ought to know better.
He suggests that evidence should be recorded at a location which is not a court or a police station. Fair enough, if a suitable location with the right degree of solemnity that a court provides can be found. Then he opines that any cross-examination should be conducted not by the Defendant’s counsel but by an approved ‘mediator’. I’m afraid that’s where we part company, since why shouldn’t Defendant’s case be put in whatever format by his counsel of choice?
Now perhaps we agree that young children, those under 10, should be kept away from court proceedings. Perhaps pre-recorded cross-examination is the right way forward for such witnesses. Trouble is that Nigel – and others – don’t think that measures such as this should be limited to keeping such young witnesses out of the court room or building. It’s suggested that such measures should also extend to adult ‘vulnerable witnesses’. This appears to translate as anyone who makes an allegation of a sexual nature or indeed a good many other offences, adult or child. Which means that anyone could make an allegation about anything safe in the knowledge that they would never have to go to a court to substantiate it, whether it was recorded in advance of the trial or at trial, if they could say they were ‘vulnerable’. And the idea appears to be that certain allegations automatically render the complainant ‘vulnerable’, no matter what their personal characteristics.
Pascoe QC argues that would provide “the greatest possible protection against further traumatic damage”. Which is rather prejudging the issue of whether an offence has actually taken place, isn’t it? Which is usually the reason why there’s a trial taking place at all, isn’t it? Which is supposed to be the province of the jury, isn’t it? Which is one of the reasons why it’s so important for the jury to be able to look into the whites of the eyes of the accuser to see how they react when being cross-examined, isn’t it? Isn’t it?
So where does this leave the right for a Defendant to have his/her accuser come to court to substantiate their allegation? It leaves it sinking in the mire, disappearing out of sight, with only a few bubbles rising to the surface to indicate that the right to a fair trial was ever even there.
Like I said, swimming against the tide of effluent spewed out by those who really should know better. Without a life belt. About to finally go under.