This is not easy. I support the proposals for the pre-recording of the evidence and thus cross examination of rape complainants. I would extend it to every person, adult or child, alleging sexual assault. And I know at the same time that the proposal carries the potential for injustice and has a significant practical disadvantage. What of issues arising at short notice after cross examination has been recorded? I find that potentially a real stumbling block. But I still support the proposal as an enlightened, even inevitable reform. It needs refinement and constant evaluation. But it is the way forward
That is my honest view. WHY?
The starting point is the appalling trauma of reliving and retelling in public the humiliation and fear implicit in most sexual attacks. Even with skilled and sympathetic police officers, it is bad enough to describe such incidents to strangers. The process of justice now requires you to repeat it in public and, in the process, magnify the trauma that most true complainants unquestionably have experienced.
In a sentence, the public recitation of sexual assault doubles potentially the agony and the harm.
Of course I generalise and we can all point to calmer victims for whom the retelling and just conviction may have been cathartic. But the basic truth is that it is, almost inevitably, a terrible ordeal, not withstanding very intuitive and sympathetic defence counsel and superb judge work.
It just hurts so much.
Don’t worry – i have not forgotten about innocent and falsely accused defendants. I will face their plight head on. But let us first examine soberly what the Lord Chancellor is proposing and not run away from its dangers.
In future, evidence and cross examination will be removed from an open court setting to one more conducive to candour and calm. The defence will be put and the lying complainant tested. And I do not mean sanitized through intermediaries, save where, as now, that is is permitted. The case will be put. That much has not changed.
The ordeal over, the complainants, the huge majority of whom are speaking the truth, can creep back into their damaged lives and begin the process of gradual recovery. The reality is that some will never recover. BUT we will have lessened their ordeal. That is why this blog is called a Question of Justice.
And the innocent defendant?
Falsely accused and unable to see their accuser? They, as now, will be in the hands of trial by their peers. Their case will have been put and if, like me, you blelieve passionately in the power of good cross examination, they will be acquitted when they deserve to be. Juries will not change into agents of the Crown simply because the complainant is not present. Indeed one can foresee how many a good defence speech will capitalize on the change.
So this is not about improving the conviction rate. Perhaps it may lead to more guilty pleas once the video is seen by the guilty. I will not presume to guess whether that will happen. It is about compassion and justice for the terrified.
One last point. In an ideal world, I would go much further. The complainant would never leave the security of their home. Mobile television vans would be parked outside and thus would Justice proceed. But even I understand that at present is cloud cuckoo land. Yet one day…
Nigel Pascoe QC