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

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