There
are so many potential blog topics from the current febrile political climate
right now, it’s hard to know where to start.
There’s
the rumbling row about s41 and whether the previous sexual history of
complainants in sexual offences trials should be admissible, and if so in what
circumstances – check out top blogger The Secret Barrister on this (https://thesecretbarrister.com/2017/02/09/the-rape-shield-bill-is-well-intentioned-meaningless-and-dangerous/). And then
there’s the issue about the approach of the CPS to prosecuting sex cases, and
alleged ‘victim blaming’, which has raised its head again today (see here: http://www.dailymail.co.uk/news/article-4349464/Judge-launches-extraordinary-attack-Chief-Prosecutor.html).
However,
there’s a particular topic about which the Ministry of Justice is presently
fulminating: the proposed introduction of pre-recorded cross-examination for
“victims of rape and other sex crimes” across the board. Though, as commentator
Joshua Rozenberg and others have noted, the MOJ can’t even seem to get the
mechanics of their own scheme right and are now embroiled in an embarrassing
row with the Lord Chief Justice: see https://www.facebook.com/JoshuaRozenbergQC/posts/283421828746407.
A
great deal has been talked about this scheme, but very little (it appears) by
any barrister who has either prosecuted or defended in a case involving it. We’re
led to believe is that the operation of s28 of the Youth Justice & Criminal
Evidence Act 1999 has been universally praised, to the extent that the pilot
schemes are now going to be extended nationwide.
As
I have pointed out in one of my previous blogs (see: https://crimbarrister.wordpress.com/2016/10/31/whoops-there-goes-my-justice-system/),
this is yet another example of the MOJ at the very least misleading, and at
worst deliberately trying to con, the public and themselves. Quite who the
scheme was a resounding success with is unclear. During the less than extensive
qualitative assessment of s28, it became apparent that no one had actually
asked any of the lawyers who were being asked to make this work. Except three.
Apparently 390 cases took place involving s28 at the three pilot centres
(Leeds, Liverpool and Kingston), so a cursory glance suggests that perhaps one
barrister was asked from each court centre about their experience. No info as
to whether that was a Prosecution or Defence counsel either.
I
have done a s28 case and I wasn’t asked, perhaps unsurprisingly as the MOJ wouldn’t
want my answer as it doesn’t fit with their agenda. Just in case anyone’s in
any doubt, there are substantial difficulties with how s28 works in practice,
which would be exacerbated by the expansion of the scheme to include all sexual
allegations.
The
first of these is the timetabling of the trial itself. S28 cases are meant to
be subject to an expedited timetable in relation to the service of evidence and
disclosure on the Defence. However, this never happens in any sex case in
reality. Last week I dealt with a rape trial in which I was still having
relevant unused materials – which I ended up deploying in cross-examination –
disclosed to me DURING THE TRIAL. So this was six months after the Defendant
first appeared in the Crown Court and pleaded not guilty.
This
is a major problem, because under the s28 scheme all such disclosure would have
to be completed by the time of PTPH or before, since that is when s28 recording
of cross-examination is supposed to take place. On recent experience the CPS
would be struggling to serve the recording of the complainant’s
evidence-in-chief by the PTPH, let alone before. In several recent cases, I
have attended the PTPH having been served only with a case summary and a couple
of statements on ‘recent complaint’. And the s28 recording of cross-examination
is supposed to take place before this
stage?
In
the pilot case I conducted, there were also more hearings required than is
supposed to be the case under the new Better Case Management scheme, due to
admin problems at the court centre concerned. As required, I’d submitted the
cross-examination questions in writing in advance to the court. When I arrived
at the ground rules hearing – timetabled separately to the date on which the
cross-examination was due to be recorded, which isn’t supposed to happen – the
judge claimed not to have received my list of questions, even when I produced
an email from the court office confirming receipt. Thereafter, I found the
ground rules hearing being put off to the following day, necessitating the
return of both myself and Prosecution counsel. Once we’d decided on the ground
rules at an unnecessary additional 20-minute hearing, actual cross-examination
wasn’t recorded for another two weeks.
All
of this could, of course, have been done on the date of the hearing. But the
court thought they knew better so two entirely unnecessary hearings had to be
accommodated. As we’re always being told, court time costs a lot of money. Unsurprisingly,
we haven’t been provided with any figures on the inevitable increased costs of
such cases, presumably because it doesn’t suit the MOJ agenda.
Oh,
and then the rest of the trial didn’t take place for another nine months.
Ludicrous, but that was the earliest that the court could accommodate the
required five-day hearing.
This
raises another listing issue. If you’re defending, this means you have to
ensure that you are available all those months later to conduct the rest of the
trial.
I’ve
heard tell with horror of some counsel being asked to step in and continue what
is, in effect, a part heard trial. This not only poses professional conduct
problems (what if you disagree with the way the most important
cross-examination in the case has been approached? What if further disclosure
has arisen which necessitates further essential questioning of the witness?),
but the practical effect under the current Defence fee scheme is that only one
brief fee is payable. Few if any experienced counsel will be taking these risks.
What
does a jury make of pre-recorded cross-examination? The answer is, there is no
empirical evidence from real trials since jurors aren’t allowed to discuss
their deliberations. But the strong sense from those of us who actually conduct
these cases is that juries like to see a witness live, responding to questions
in real time, to make an assessment. Ask any sex prosecutor and they will tell
you of the disadvantage they feel when grappling with footage. If a jury can’t
properly see the whites of a witness’s eyes, they don’t feel the real impact of
their evidence, simple as.
Perhaps
the most important point, though, is that in all the media coverage and MOJ
press releases, one fundamental point appears to have been forgotten: that a
Defendant is innocent until proven guilty. S28 appears predicated on the basis
that ‘victims’ must be spared the ‘ordeal’ of giving live evidence. Which
pre-supposes that the alleged offence has actually been committed in the first
place. And isn’t that the jury’s job to decide? Just saying.https://twitter.com/CrimBarrister
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