In recent years, a number of high-profile cases have led to campaigns for greater protection for witnesses. The impetus behind such campaigns is that witnesses are being badly let down by the criminal justice system and are often traumatised by the experience of giving evidence. Such criticisms are made particularly with regard to trials of sexual crimes and go with a wider post-Savile debate about the betrayal of victims by establishment institutions and society at large. While those who practice criminal defence accept that giving evidence could be made easier, it is nonetheless worrying that well-intentioned calls for “putting the victim at the heart of the criminal justice system” are leading to a raft of measures which threaten to curtail defendant’s rights and place the very nature of the adversarial process in jeopardy.
The outcry that followed the acquittal of Ched Evans at his retrial for rape in October this year is a good example of how campaigns to “protect” victims of crime often ignore the stringent protections already in place. The Court of Appeal quashed his conviction and ordered a re-trial after concluding “with a considerable degree of hesitation” that the evidence of two other men who came forward post-conviction and described certain sexual behaviours of the complainant met the test of sufficient similarity so as to be admissible under section 41(3)(c)(i) of YJCEA 1999. Lady Justice Hallett emphasised the importance of offering complainants in sexual offences protection from intrusive and unnecessary questioning about their sexual history and stated that it would be a rare case in which it would be appropriate for such cross-examination to take place.
The hurdles built in to section 41 are high, and rightly so. They are designed to exclude the impugning of a complainant’s credibility on the basis of her sexual history and Judges will not grant applications to admit evidence of previous sexual history unless a fair trial demands it.
Nevertheless, the fact that the complainant was cross-examined about her sexual experiences at the retrial caused outrage. Campaigners and women’s groups claimed that the Court of Appeal judgement dangerously undermined the legislation designed to protect victims of sexual assault from having their sexual history used to discredit them. Vera Baird, the former Solicitor General, told Radio 4’s Today program that the case had set the law back decades. A group of 40 female Labour MP’s wrote to the Attorney-General warning that women would be less likely to report rape because of the legal precedent set. Jess Phillips, Chair of the Women’s Parliamentary Labour Party, called for an end to the “dredging up of sexual history in court” and argued for the imposition of a blanket ban on the use of a complainant’s sexual history.
Yet the Ched Evans case did not set any precedent. It was simply a rare exception to the prohibition operating in the vast majority of cases against questions about previous sexual behaviour. R v A (No.2)  1 A.C.45  2 Cr. App. R. 21 established the need to ensure that section 41 did not exclude relevant and admissible evidence so as to preserve the rights to a fair trial. Mostly, the courts get the balance right. Those who campaign for a change in the law overlook the fact that it is not in the rulings of judges that pernicious myths about female sexual behavior are perpetrated. Eroding a defendant’s right to a fair trial will not advance the cause of women’s rights.
The potential danger of high-profile cases fuelling populist measures arguably also underlies one of the biggest potential challenges to face defence practitioners, namely the implementation of section 28 of the YJCEA 1999, which provides for pre-recorded cross-examination. This lay on the statute books until 2013 when the Government announced a pilot scheme in Liverpool, Leeds and Kingston-upon-Thames. At present, the scheme is operational only in the pilot courts but it has been reported a success and the Government has promised to complete a national roll out by March 2017.
The benefits for witnesses are clear. Children and vulnerable witnesses who are eligible by virtue of section 16 of the Act can give their evidence closer in time to the events in question, away from the intimidating environment of a courtroom, and in circumstances where the length and scope of cross-examination will be closely monitored and controlled. While it is difficult to argue against the principle that a witness should not be prevented from giving the clearest and most reliable evidence they can by reason of distress or delay, the reality is that the measure will make the process of conducting a defence far more difficult.
Many challenges are practical. There will be two hearings of considerable substance prior to the PTPH and the trial itself. At a Ground Rules Hearing, the Judge will determine the parameters, nature and length of questioning of the witness. Those of us familiar with the Advocates Gateway Toolkit know this means that advocates are likely to have to submit the questions they wish to ask in cross-examination in writing for approval by the prosecution, an intermediary (if instructed) and the court. They will have to be in a position to argue for the necessity and relevance of putting particular topics. The Judge will restrict questioning which puts the case, which accuses the witness of lying or which is deemed to cause unnecessary upset. Strict time limits will be set on the length of cross-examination and, in multi-handed cases, different topics will be allocated to each advocate or a single advocate will be appointed to ask questions on behalf of all defendants. Any bad character and/or section 41 applications will need to be dealt with at this stage.
This will be followed by the Section 28 Hearing where the cross-examination takes place, which will denote the “first day” of the trial for the purposes of both the brief fee and credit for guilty plea. Clearly, there will need to be continuity of representation throughout.
Of particular concern is how the process will provide for cross-examination upon third party material, which often plays such a crucial role in testing the consistency and credibility of a witness, but at present is rarely identified and disclosed in a timely fashion. Protocols will be in place to try and ensure that relevant third party material is obtained in advance but unless the CPS undergoes a complete overhaul of policy and practice problems with late or non-disclosure are likely to continue. One can all too easily imagine the pressure there may be on defence advocates to cross-examine in the absence of potentially relevant material. Section 28(6) makes provision for the court to allow for a witness to be cross-examined again as a result of new matters coming to light, but given that the stated intention behind the provision is to avoid a witness having to be questioned on multiple occasions, the defence are likely to face a considerable hurdle in persuading a court to permit this.
Whilst barristers must accept that they can no longer cross-examine and put their case in the traditional way, the forensic process that lies behind the adversarial system is considerably compromised if every single question has to be approved in advance, only the most anodyne of questions can be put and barristers are never allowed to “go off script”. Moreover, there is a real danger that questions that may cause upset or distress – which is sometimes unavoidable if a robust challenge to a witness is to be made – will be too easily equated with “unnecessary and oppressive” questioning and thus disallowed.
Much of the debate about protecting witnesses from the trauma of giving evidence is premised on the assumption that all witnesses are in fact victims, when arguably it is only when their testimony is properly challenged and tested before a jury that they can be established as such. We are in danger of forgetting that defendants who are wrongly accused, and are prevented from properly defending themselves, are victims of the criminal justice system too.
Currently before Parliament is a proposed amendment to the Policing and Crime Bill designed to stop suspects in sexual cases learning the identity of the complainant where it is reasonable to assume that such disclosure would put the complainant at risk of harm. This is a textbook example of how a well-intentioned but poorly thought-through piece of legislation could have disastrous consequences for a defendant’s right to a fair trial. The impetus behind it was to prevent the disclosure of a complainant’s name in so called “stranger rape” cases but as originally proposed there was nothing to prevent it from applying to all allegations of sexual offences. The reasonable assumption tests lacks any of the protections built into the current laws allowing witnesses to be granted anonymity under the Coroners and Justice Act 2009 and, most worryingly of all, the decision as to anonymity would lie in the hands of the police and CPS with no provision for judicial oversight or intervention. Placing such power solely with the prosecuting authority contravenes the whole basis of our adversarial process and represents a deeply concerning move away from fairness and balance. During the Bill’s passage through the House of Lords some of these concerns have been expressed and it remains to be seen what the outcome will be. Even if disaster is averted on this occasion, the direction of the tide suggests that policy will increasingly be driven by misinformed public campaigns in which the right to a fair trial is overlooked in favour of championing the rights of the “victim”. The principle of being innocent until proven guilty, which means that the balancing act must be weighted in favour of defendants, is in danger of being overlooked altogether.