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Do New Evidence Proposals for Rape Cases Strike a Fair Balance?

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About The Author

Jack Slone (Administrative Law Editor)

Jack is a third-year law student at St. Catherine’s College, Oxford University. He has a keen passion for legal issues which affect the day-to-day lives of people in society, such as criminal law, medical law, and the law of negligence. Outside of law, Jack enjoys a number of sports including cycling, squash and snooker or indulging in his guilty pleasure of American TV programs and box-sets.

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They are all innocent until proven guilty. But not me. I am a liar until I am proven honest.

Louise O'Neill

New proposals, which will enter into force in September, will permit complainants of rape to give evidence in a pre-recorded video that will be played to the jury once the trial begins. Though the recent General Election appeared to leave the proposals thrown into the long grass – particularly as there was no mention of them in Queen’s Speech – it is thought that these proposals will be placed straight back onto the agenda.

Almost identical versions of the proposals were trialled for child victims of sexual offences in Liverpool, Leeds and Kingston-upon-Thames. Thanks to the success of this pilot, former Justice Secretary Elizabeth Truss MP brought forward the implementation of plans for recorded cross-examination to apply in all adult sexual offences cases. Under the assumption that new Justice Secretary David Lidington MP follows his predecessor on this issue – and the practical implications of the election result does not hamper the proposals’ implementation – it is crucial that these plans are evaluated once again before they are put into force.

This article takes on this task. Indeed, since the proposals allow complainants to avoid cross-examination in front of a live court, it is imperative to examine whether these new plans strike the correct balance between complainant and defendant or, as the Chairwoman of the Criminal Law Solicitors Association Zoe Gascoyne suggests, are a ‘step too far’.

What are the Current Rules?

When a rape trial starts, it is usual practice that the complainant’s account will be presented to the jury by way of playing an Achieving Best Evidence (ABE) video interview, which is conducted by a specialist police officer. After this is shown, the cross-examination of the complainant by the defending counsel will then usually be conducted via a live video-link to a separate room in the court building. However, the cross-examination must be carried out within the confines of certain procedural rules imposed by statute, and sometimes under certain specific rules as determined by the trial judge’s discretion.

One major element of these rules is contained within Section 41 the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999), which imposes tight restrictions on details of an alleged victims' sexual past being presented in court, other than in exceptional circumstances. It places the following restrictions on evidence or questions about the complainant’s sexual history:

If at a trial a person is charged with a sexual offence, then, except with the leave of the court— (a) no evidence may be adduced, and (b) no question may be asked in cross-examination, by or on behalf of any accused at the trial, about any sexual behaviour of the complainant.

This provision was also considered in the earlier case of R v A [2001], where Lord Steyn held that:

[With] due regard always being paid to the importance of seeking to protect the complainant  from indignity and from humiliating questions, the test of admissibility is whether the evidence (and questioning in relation to it) is nevertheless so relevant to the issue of consent that to exclude it would endanger the fairness of the trial under article 6 of the Convention. If this test is satisfied the evidence should not be excluded.

The Ched Evans Litigation

The contentious issue of recounting a complainant’s sexual history was brought back into the public spotlight via the high-profile and complex case involving the famous footballer Ched Evans. Indeed, this case effectively brought the issue before the legislators, following public outcry at the treatment of the complainant during cross-examination.

In R v Chedwyn Evans [2016], Hallett LJ ruled that the Ched Evans case was so ‘rare’ that it would be appropriate to allow ‘forensic examination’ of the complainant’s sexual behaviour. This reinforced claims made by Attorney General Jeremy Wright shortly after the case; he told the House of Commons that the disclosing of a complainant’s sexual history was not ‘routinely’ done and saved only for exceptional cases. However, this was contradicted by an eighteen-month study conducted by Dame Vera Baird QC in 2015, which revealed that in over a third of rape trials heard at Newcastle Crown Court complainants were made to answer questions regarding their previous sexual conduct.

It might be fair to argue that the Ched Evans case was sufficiently rare to allow the evidence of sexual history to be admissible. It was an unusual case: the only evidence as to sexual activity came from the accused himself – the complainant could not assist as she said she remembered nothing – meaning that the defendant could rely on little more than his own account of the events which took place to advance his defence of capacity to consent and actual consent.

Thus, when Evans described in graphic detail the sexual behaviour of a woman who, according to the prosecution, would have been incapable of behaving in that way, the testimony of two other men who described specific instances of her behaving in a very similar fashion with them ultimately proved crucial. As such, this case arguably shows there is a definitive need for Section 41 of the YJCEA 1999 to remain on the statute books.

Nonetheless, it is a valid criticism to suggest that this ruling on hearing a victim’s sexual history in court under Section 41 of the YJCEA 1999 may set the bar too low, potentially deterring rape victims from coming forward. As Lord Marks QC suggested, a key question to ask:

[I]s whether, as a result of the Ched Evans case, there might be cases where the restrictive nature of Section 41 has or may be watered down and we need to look at how it’s operating... It is very important that rape gets reported and it is very important that the legislation in place is certainly as restrictive as we always thought Section 41 was and as the textbooks say it is. And the public concern is that this case seems to have weakened that protection.

Is There a Need for these Reforms?

The proposals stem from a Private Members Bill introduced by Liz Saville Roberts, the Plaid Cymru MP for Dwyfor Meirionnydd, which aims to make the cross-examination process less gruelling for complainants. It aims to allow judges to cut out any inappropriate cross-examination of rape victims before it is showed to the jury, such as the making of references to their sexual history without the express authorisation given by the trial judge under powers vested in them by Section 41 of the YJCEA 1999. Ms Saville Roberts stated:

‘It is neither right nor just that a victim of rape can be questioned in court on matters not relevant to the case in hand. … Yet in the past victims have been humiliated by lawyers asking questions about their sexual partners, their clothing and appearance.’

Thus, these proposals, by effectively allowing judges to vet the cross-examination before it is shown to the jury, would effectively rid rape cases of this problem: cross-examination is placed into the hands of judges to counteract the effects of an over-zealous defending counsel asking questions which are potentially inadmissible in front of the jury. After all, once something is said in front of a jury – although it may be retracted by order of the judge – it cannot be unsaid. 

There are practical arguments in favour of these reforms too. Truss herself has placed great weight on the success of the pilot scheme, noting it had seen defendants – when confronted with the strength of the evidence against them at trial –  more likely to plead guilty earlier, thereby reducing the trauma for rape victims and, in turn, providing more efficient and cost-effective justice.

Do the Proposals Strike the Correct Balance?

These proposals mean that complainants will no longer face cross-examination live in court. Judges will also be able to limit the length of the cross-examination to avoid victims having to testify for days on end and will determine the types of questions that can be asked. This will have huge ramifications on the procedural stages of a rape trial, and it has therefore been suggested that they may well tip the balance of the scales of justice too far away from the defendant. It is thus imperative that the procedural stages strike the correct balance, so that a complainant is able to make their case without the fear of humiliation in cross-examination, and the accused can also make theirs, without the fear of inevitability of wrongful conviction if innocent.

Unfairness to the Defendant?

Indeed, there must always be pause for defendants who are wrongly accused. Early guilty pleas can only be praised if they are genuine, and born from policies which are fair to both the complainant and the defendant. The law must give the accused the opportunity to prove his case without any bias, including procedures which favour the complainant; a failure to do so would breach the rights of the accused to be held innocent until proven guilty. 

It might be argued submitted that the changes may not accurately reflect human rights legislation. For instance, Article 6(3) of the European Convention on Human Rights (ECHR) states that everyone charged with a criminal offence has the following minimum rights:

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

Given the complainant will not be in the courtroom under these proposals, and will have had their cross-examination conducted potentially several months before the trial, there is a clear possibility that such proposals would technically infringe Article 6(3) of the ECHR. The complainant who avoids being cross-examined live in the courtroom itself, face-to-face with the defending counsel is no longer under the same conditions as the accused.

However, this can be countered via the argument that these changes bring benefits to the complainant which, if they were to also be introduced to the accused, would bring no benefits whatsoever. After all, the accused would not suffer any trauma seeing the complainant live, or having to recount events on the night in question, as they are not alleging a crime but is accused of carrying one out.

Harming the Prosecution's Case?

It might be argued that the changes proposed may detrimental to the prosecution’s case: the jury would no longer be able to see the witness’ testimony in person, and would instead have to gauge the accuracy of the testimony from a screen in the knowledge that it may have been conducted several months beforehand. Given that the jury’s primary function is to determine questions of fact, these proposals may well damage the validity of the complainant’s testimony since they will no longer be able to see it conducted live.

Unfairness to Victims of Other Offences?

A further separate flaw to these changes is that, within these proposals, there is an assumption that recounting the traumatic events of rape is inherently more traumatic than recounting the events of other serious crimes. It might be suggested that asking a witness to recount the events of an aggravated burglary, or an attempted murder, or the terrorist atrocities – such as those at Borough Market in London – is no less traumatic than a sexual attack, especially if they have to relive each and every detail in a courtroom over and over again.

Impracticalities?

Solicitor Maximilian Hardy, a previous Chairman of the Young Barristers’ Committee of the Bar Council of England and Wales, also argues that there are a raft of impracticalities which must be addressed before changes of this sort are imposed. Whilst he is cautious not to criticise the principle behind these changes, he does nevertheless stress that the workability of these proposals would be fraught with difficulties, many of them relating to whether the proposals are cost and time-effective.

The first main objection relates to movement within the case. For instance, if there are circumstances in which there is a need to revisit the pre-recorded evidence – whereby ongoing investigation by the police and the defence produces evidence upon which the complainant will be required to answer questions – this would lead to problems of timings and scheduling for cases that are, invariably, already under difficult time constraints.

Furthermore, the defence barrister who was initially tasked with conducting the cross-examination may face struggles in making themselves available for the trial. In court listings, rape trials will be given fixed start dates, but sometimes not all do. This means that if they are placed into lists whereby the trial can start on any day of an allocated week, this is an issue for a barrister’s professional diary. The defence barrister, therefore, may face not only the difficulty of making themselves available for the week on a rolling basis but also having to block out the time several months in advance for when the trial is listed, after potentially having completed the pre-recorded cross-examination several months earlier.

Conclusion

Perhaps, as Gascoyne cautioned, these proposals may be a step too far. Cross-examination is a crucial part of the trial process, whereby barristers, judges and – most importantly – the jury get to judge for themselves the quality of the responses. This may well be hindered if the complainant’s responses are pre-recorded.

It seems that the real problem to be resolved lies in the cross-examination of the complainant itself, which these proposals have tried to resolve by removing it altogether. This cannot be sound: indeed, the proposed changes overlook that a safer approach would be the reform of the current rules they are largely workable.

It is therefore submitted that the balance would be more fairly struck if the procedural rules were reformed to allow cross-examinations of complainants, but only those of a less intrusive nature. Section 41 of the YJCEA 1999 must be enforced in the strictest of terms, with the government examining the guidance given to judges about when evidence is admissible and the instructions judges give to jurors about how it should be used. This would place a higher bar on when complainants would be subject to questions about their sexual history in cross-examination but still allow for an opportunity for his defence counsel to press the complainant as regards her complaint.

The difficulty, of course, is striking a balance which is extremely fine. However, this highlights why these proposals should not be enforced; although they are well-intentioned, they are at times impractical and tip the balance too far in a way which denies the defendant a fair trial.

Will the new Justice Secretary carry on from where his predecessor left off and plough forward with these fast-tracked plans as scheduled, or will these well-intentioned but unconvincingly thought-out proposals remain in the long grass until way after the current programme of government, ready to be re-thought under a different Cabinet? Time will tell. But one thing that is for certain, however, is that in terms of a current system which could have the balance right after being tightened up on the one hand, or an entirely new process which tips the balance too far, in response to these plans, it might be better to tell Theresa May’s Conservative minority government that it is a ‘no deal'.

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Tagged: Courts, Criminal Law, Human Rights, Justice, Sexual Offences

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