Cricket, lovely cricket

I have just finished a short play about a cricket loving Judge who couches his jury directions in cricketing terms. Pure nonsense of course. Perhaps I should be worrying about the future of the criminal bar as we wait for judgement, but two glorious but very different cricketing days have dulled the pain…

First a thrilling finish to a limited over match at the Rose Bowl as Hampshire beat Surrey with one over left. A brilliant surprise birthday present from two grandchildren and their parents.
Loud and lively fixtures but such fun as the tension builds up under the floodlights at ten.

Then a village cricket match, as a scratch BBC team took on Wood Green on one of the most beautiful grounds in the New Forest. My son did his stuff with some success, but the village saw off the media. And one of those all embracing cricket teas open to the spectators. Summer joys and I am sure my old boots are somewhere..

But halcyon days are finite and the QASA handbook is published and suddenly the spectacle of conflict filters through the dog days of summer. Are we really going to raise an imperious finger and put ourselves above any assessment, however badly designed? That gives our opponents the ammunition they most relish, that the bar are as arrogant as they have always maintained.

Wake up and smell the coffee. If we are really not going to join, where in the name of reason is our
reasonable alternative?

The bar must get its act together and show we have nothing whatsoever to fear from assessment. I look to our leaders to recognize that logic and act. A good starting point would be an Inn based scheme, but time is running out.

Nigel Pascoe QC

20130824-183434.jpg

Squaring the Circle – CX in Sex Cases

First the misconceptions or if you like, downright lies. Barristers have no inner regard for the consequences of their questioning of probable victims. All they consider is the unrelenting pursuit of their clients’ case of asserted innocence, with no regard for the impact of forensic firepower.

It is an easy, lazy lie. But it is gaining currency. The agonised reaction of young complainants and worse, their self-harm is food and drink for our critics. But that is not to say we should not or do not care.

I believe that the standards of cross examination at the junior bar in sex cases has vastly improved in the last ten years. There is a greater implicit understanding by them of their role which is coincident with the greater understanding of and treatment of Victims in court. In the last 7 of 34 years as a Recorder, I had a sex ticket on the Western Circuit. I can say without doubt that I have seen some truly superb cross examinations of damaged traumatised victims done with full consideration to their feelings. And juries have responded accordingly, distinguishing between the evidentially weak and overwhelming cases. Of course, not always. There have also been some cringing badly misjudged efforts, but not so many.

So we are getting better and Bar Council supported defence advocate training should be warmly welcomed. It is all about the pursuit of excellence.

But there are bigger questions than better advocates in the arena.

Should that arena itself be adapted to limit damage to victims?

I pause to stress the word victim because all of us who have worked in the system know that the clear majority of complainants in sex cases are telling the truth, a truth not reflected by the conviction rate in all sex cases.

We know equally surely that a percentage of complainants including children do make it up or exaggerate seriously. So long as that risk persists of long imprisonment for innocent defendants, we must strive to uphold a system which protects the truly innocent and brings them their liberty.

I have already suggested in an earlier blog that in time we should move towards mobile justice, so that a victim may not even have to leave the reassurance of home. In comes the small camera with the mobile tv unit parked outside the front door. Local broadcasters do that every day or something very like it. That particular suggestion could be trialled now as an innovative Special Measure if an innovative LC had the courage to act.

But I realise that can only be a limited solution with obvious cost implications.

Yet we could make the attendance of victims in court the exception rather than the rule. I have in mind a direct link between a local rape suite and a local court. Criminal liaison Committees could put that at the top of their next agenda and then co-operate to make it work.

There is a lot more which is possible to enhance good defending and diminish bad. I agree strongly that an enlightened judiciary have a part to play. It never happened when I was sitting, but had an advocate once raised their voice in questioning a child I would have sent the jury out and told him in terms the consequences of repetition. A good judge has a real chance to keep the temperature down and consciously diminish the ordeal for worried complainants.

Last, a firmly held belief. Calling a witness a liar in terms can and should be avoided. There are far more subtle ways of squaring the circle.

Discuss.

Nigel Pascoe QC