Cross examination of complainants in rape case to be pre-recorded under new rules

Justice Secretary Elizabeth Truss has said that from September this year, complainants in rape cases will not be cross-examined in open court. Rather, their cross-examination will be pre-recorded and then played to the jury during the trial.

There can be little doubt that for a victim of rape, engagement with the criminal justice system is traumatic from beginning to end; making the decision to report, sitting down with officers to make the complaint, possibly a medical examination; all must be tremendously difficult. Victim support groups have repeatedly highlighted fear of giving evidence in court and in particular, being cross examined.

This is of course understandable. As difficult as it must be to give an account to the Police, it must be far more difficult to do so before a court. The number of people present will be greater and will include the Defendant, possibly their family and friends, prosecution and defence barristers, solicitors, the Jury and maybe the press.

Moreover, in court the account of the complainant will be tested by the defence through cross-examination. In a rape case, it may be put to them that they had in fact consented or indeed that they had lied in the whole allegation is a fabrication.

Nevertheless, we must remember that our system of justice is built on the principle that a person is innocent until proven guilty and that guilt is for the prosecution to prove. Rape is one of the most serious crimes which a person can be accused of. Upon conviction, a custodial sentence will inevitably be passed and the maximum sentence is life imprisonment.

Clearly it is important that there is a balance which reflects the need to make sure that complainants safeguards in place but these ought not to lead to any erosion of the rights of a defendant to a fair trial.

There are already a number of safeguards which are in place. These start with the police where specially trained officers are now routinely used to handle complaints of a sexual nature. Further, complainants in sex cases are guaranteed anonymity for life and as such, irrespective of the outcome of the case (or indeed if it ever even reaches court), the press may never report the name of the complainant. It would also be an offence if a member of the public leaked their details, for example on social media.

Since 1999 the Courts have been able to use ‘special measures’ to assist people under 18 and vulnerable people to give evidence. In 2009 this was extended to include adult complainants in sex offence trials in crown courts. The special measures which may be used include the ability to give evidence from behind a screen in court so that the complainant will not be able to see or be seen by the defendant. Another option includes giving evidence in chief and the cross examination of the witness via live video link with the court. It is also possible for the complaint to be video recorded and played to the Court as the evidence in chief of the complainant, following which the defence may cross examine by live video link.

For vulnerable or intimidated witnesses, there are provisions for judges and barristers to remove wigs in Court. Further, options can be used together, for example screens can be used to stop a complainant giving evidence by live link, from being seen by a defendant.

In addition to special measures to which the complainant would be entitled, since Youth Justice and Criminal Evidence Act 1999, complainants cannot be cross examined in person by a defendant who is defending themselves.

Also since 1999, the defence have been unable to cross examine a complainant about their previous sexual history, unless there is permission by the judge. Permission is rarely granted and only done so in limited circumstances, for instance where the defence case would be too badly prejudiced if certain matters could not be put to the complainant. This important change in the law recognised that if a person has been promiscuous for example, it is in their gift with whom they are promiscuous with and certainly does not mean that they would consent with anybody and as such it is not appropriate to put such questions to a complainant. In practice, this rule is vigorously enforced and advocates who cross the line quickly brought into check by judges.

Guidance around these rules make it clear that the judge must ensure fairness of a trial not only for the complainant and for the defendant. As such the defence must be able to pursue all reasonable lines of cross-examination of the witnesses. The defence may not be unnecessarily aggressive with the witness or persistent in repeating the same question.

With all of these protections in force, is it really necessary to add a further requirement that the cross examination of complainants be done prior to the trial video recorded?

This is an emotive subject. Much has already been done to empower people who have suffered at the hands of sex offender to be able to come forwards. Nevertheless it has always been a cornerstone of our justice system that the defence can cross examine a complainant in order to put the case of the defendant and to allow the jury to consider whether they can be certain, beyond any reasonable doubt that the defendant is guilty. Any change to this right, or to the manner in which it has traditionally been done, will understandably be met with concern.

It may be more appropriate to ask whether the defence really lose anything from their case by requirement to carry out cross-examination on video, before the trial. Arguably not. I do not consider that special measures harm defendants. Commonly, defendants raise concerns with me when I explained to them that the complainant has asked to give evidence by video link or from behind a screen. Yet I have never known this prejudice a defendant. Indeed where a complainant’s evidence has been weak (or in some cases, probably untrue), then it would advantage the defendant for a jury to have seen that the complainant has been given every possible assistance and that their poor performance cannot be blamed on an intimidating atmosphere in a court room, watched by the defendant.

The defence will have received (or certainly should have received) the prosecution evidence and any additional disclosure which may assist the defence case or undermine that of the prosecution, prior to the pre-recorded cross-examination of the complainant. As such, the defence should be fully prepared for the cross-examination. If the evidence of the complainant is weak, then I can again see how it may advantage the defence in that the Jury would not be able to apportion any inconsistencies in the complainant’s evidence to the potentially more intimidating atmosphere of a courtroom or live video link to a courtroom.

I can see disadvantages too. Skilled advocates will often be able to tell with a quick glance to the Jury whether a particular point they are advancing with a complainant is gaining traction. They will decide whether to press appoint or move on accordingly.

There is perhaps also an argument that there is an inequality of arms. The defendant will not be afforded any special measures. They are not guaranteed anonymity, even if acquitted. They may be subject to a very robust cross-examination. The two will have been under tremendous pressure in the lead up to the trial. No doubt, some (but not all) defendants will be entirely innocent of the crime of which they are accused and yet there are no protections afforded to them.

Some may feel that this is an erosion of justice. Others will feel that this is an extremely important measure which will encourage victims to come forwards and demonstrate a positive shift in the attitude of society. The Justice Secretary is clearly in the latter camp “Attitudes to sex crimes and victims have changed beyond all recognition in our lifetime, and rape prosecutions are now at record levels…with more victims now finding the confidence to come forward, I am determined to make their path to justice swifter and less traumatic.”

It will be a key task for judges and for defence counsel to ensure that the new system does not erode rights of the defendant to a fair trial; time will tell.