Easing the Burden
This working paper considers the need for and possible scope of reform of the way that alleged victims of sexual assault give evidence. It distinguishes between children up to the age of 14 and all older victims. That distinction itself needs to be tested in the course of discussion.
1. It is fair to accept that the treatment of complainants of sexual attack in court has improved significantly in the past ten years. Measures include specific training and categorization of judges, specially trained prosecutors, the use of intermediaries, limitations on the questioning of children and in the best run Court centres, a real attempt to support witnesses at court by trained volunteers. The broad issue is whether far more radical steps may be contemplated, which nevertheless preserved the ability of a defendant asserting his or less usually, her innocence, to have a fair trial.
2. Such a question rests on a simple premise: that so far as possible the damage which may flow from a complainant’s description of the attack upon them is kept to a minimum. The true victim will have endured the trauma of the original attack and the giving of their initial account. The Court process must be resolute to limit further damage.
3. The first fundamental change, in its most extreme form, would be a complete ban on any child ever having to give live evidence in Court, either in a video suite or in front of a jury.
4. Such a reform would facilitate the child’s account being recorded in a place where it could feel as safe and comfortable as possible. That normally would be the home of a parent or relative. Necessarily on occasions child-friendly rape centres would still be needed.
5. The process of that recording should be refined to make it as unobtrusive as possible. That means no lighting, a small camera and a microphone positioned to guarantee complete audibility.
6. Young children should always be accompanied by a close and trusted relative or friend. But it would be wise to continue to exclude parents.
7. On receipt of the dvd, the defence would be required to report to the trial judge at the next Pre -Trial Review whether on not the Defendant had seen the recording. Best practice guidelines should indicate that that should take place, in the absence of good reasons such as illness or incapacity. Such a procedure might increase the possibility of a sensible plea and the credit which will always follow such an acceptance of guilt.
8 At the same review, the defence would be required to set out precisely the aspects of the child’s evidence which were in dispute. The Judge would rule whether the questions could be put by a mediator or the advocate instructed.
9. Then, where necessary, a further home visit to the child would take place but without the attendance of Judge or advocate or mediator. Instead there would be a live television link with an appropriate venue where Judge, advocate and mediator were present. The necessary challenges would be put and recorded.
10. That would end the involvement of the child in the process of trial.
11. Plainly the cost implications of country wide mobile facilities are considerable and require careful examination. What may be impractical in the short term may be feasible thereafter. It would be sensible to proceed initially by controlled trials in different parts of the country.
12. It would still be imperative to insure that the fundamental case for the defendant was raised in a format where the victim can respond to it, wherever the child is deemed old enough to do so. The extent of that duty would depend on existing case law.
13. There is a theoretical argument that the same protection should extend to all complainants of sexual assault. They should not be required to attend either court or rape centre. They should relate their ordeal from the security of a place where they feel most comfortable.
14. The author would argue that such a huge step ultimately would be the greatest possible protection against further traumatic damage. The practical consequences of such a change would be huge and extremely expensive. One question for discussion is whether such a change would ever be feasible. However reform ultimately should not be predicated on cost but principle.
15. One reasonably predictable consequence of no complainant ever having to go to court would a very significant increase in the volume of complaints. The ordeal would be less and well recognized as such. Again the system must be expanded to meet the need.
16. It is also reasonably predicable that the number of false complaints would also increase. This is not at all a trivial objection. But it is impossible to devise a system which could resolve such a possibility in advance of a questioning process. The panel would need to consider further this aspect of the proposed reform.
17. The purpose of this section is to stimulate discussion of other practical steps which could aid the position of the victim. It is axiomatic that any other steps should not undermine the ability of a defendant to put his case.
18. One possible step would be to initiate the help open to victims after a trial process immediately after the assault and make that fact known to all those in the trial process. The logic of that controversial suggestion is that the sooner a victim receives skilled help after they have been attacked, the quicker they will be able to recover from it. The trial process will be an incident in the process and of course may disturb it. But the process will be ongoing after trial and hopefully the trauma of the attack may be lessened. Such a suggestion needs expert psychiatric evaluation. It may be based on a false premise: victims may recover better if treatment commences after trial.
19. A further major change would be a psychiatric attempt to assess the level of damage already done to a victim before the court process of questioning her account is ever undertaken.
The logical consequence of such a process would be a further limitation on the extent to which some victims could be tested. That would be hugely controversial because of the obvious potential injustice to a defendant. But we need to wrestle with the fundamental point that the court process must strive to limit the damage already done to an individual complainant by the crime alleged. Jeremy Bentham writing today might be appalled at the continuing need for some complainants and most of all, children to relive and recall their ordeal in public. How have we allowed this to continue for so long?
Finally it would be valuable to research the way that other jurisdictions treat complainants to advance the case for reform. That would be a useful topic to be tackled by skilled post graduate young lawyers.
Nigel Pascoe QC. October 2016