No Children in Crown Courts

 


 

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.

Introduction

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.

Children

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.

Objections

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.

Adults

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.

Objections

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.

Miscellaneous 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

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Waiting for Chilcot

On March 18th 2003 on the eve of war, I heard the whole of the Iraq debate in the House of Commons. Later, as matters unfolded, I decide to keep a detailed chronological summary of events and analysis, wholly dependent on published material and comment. In 2007 I finished a play called My Country Right or Wrong. Hitherto I had supported the Government. Tony Blair had been magnificent in debate. Now, with millions of others, I had changed my mind. Time to publish?

The news of the Chilcot enquiry made me pause. It would be foolish to pre-empt the findings, I thought. Perhaps some of those press reports were off-beam. However I hoped that the enquiry would proceed quickly. Sadly, for whatever reasons, that was not the case.

Earlier this year I decided to publish it not long after the Report emerges. Happily it does not cover the same territory as Stuff Happens, the superb play of David Hare, now about to be read again at the National Theatre. Not, you understand, that my efforts would exactly rival his…

So, soon it will be up on Amazon and hopefully have a production.

Will keep you posted…

Nigel Pascoe QC

Beyond Despair

I need to declare again that I am not a member of any party, although In my time I have voted for all three. But of course I share the universal recognition that our system of Parliamentary democracy cannot survive without an effective opposition.

What is happening at present is absolutely tragic.

It is plain to me that Jeremy Corbyn is a thoroughly decent and principled man, who has had the courage to retain his long-standing political principles. Equally clearly, the possibility of the election of a hard left Labour Government is minuscule. So long as he gives substance to such an agenda, he cannot represent the present elected Labour party. So sadly, I agree that he has to go.

But that must place within the rules. I agree with the Momentum argument that a leader has to put his or her head above the parapet and stand against him. I also accept that there is a whole mass constituency of young people, not necessarily all on the hard left, who believe in many of his principles and in him.

See what if a new election confirms him in post?

The answer is that there must be a new Labour Plus movement, with all the pain and dislocation that will cause to the Labour family. That would provide a proper rearrangement of the centre-left to form a credible opposition to the government. Incidentally I see the real possibility of the dramatic re-growth of the Lib Dems in the next two years.

In the meantime I have one real worry about Jeremy Corbyn himself. Concern that he has been put under intolerable pressure, be it direct or indirect, which will be damaging to him. A man can only stand so much. I have no evidence of course of where the pressure may be coming from, but the fear exists. You cannot have major public figures day after day condemning him without there being some impact. It is a very difficult situation, but humanity trumps even idealism.

So let a challenger come forward and then we can begin a return to full parliamentary government.

Nigel Pascoe QC

 

Mistake, Muddle and Malice aforethought

Call me naive, but I do not share the easy lie about our political class: that they are essentially self serving and malign, dedicated only to their own grubby strivings up the greasy pole. Nearly all that I have met, of all parties, have been fundamentally decent, anxious in that over-used phrase to make a difference for their constituents. Nor do I believe that ambition, even of the naked variety, is necessarily incompatible with decency and a desire to serve and help others.

Where does that optimistic belief stand after the leadership manoeuvres of both major parties?
In truth, I may need to rely on advocacy to make the best of it. But the shockwaves of Brexit have produced some very curious behaviour.

Let me start with the Prime Minister, who left the stage with grace and dignity. Inside Downing Street I would have shared the tears that flowed. No party member, I still regard him as a fundamentally decent man. We share a common tragedy and of course, that makes me cut him some slack. But I much regret his peremptory demand to Jeremy Corbyn to go. Rarely can a man have felt more lonely in the House and he did not need that gratuitous slight.

Nor do I think that if Boris Johnson had been in situ, he would have said it. Likel many, I am very ambivalent about Boris. He does appear disorganised and I can accept that there would have been the real chance of serious misjudgment, had he become PM. He would have needed the most conscientious of supporters to provide the detail and even so, could have blown it. But he has other qualities almost unique amongst his contemporaries. Charm, real good humour and I think often an unforced decency which might have unified more than divided. His speech after winning was, I think, an effort to reconcile, though it has not survived angry satirical attack.

Leading of course to his perceived assassin. I do not know the Lord Chancellor, or his wife for that matter. I fear he will pay a heavy price for what really was a very late decision. It takes a brave advocate to argue against treachery and betrayal, but again that sits oddly with the man who debated so skilfully and as always with courtesy. I do not think the Conservative party will give Michael Gove the instant redemption which would make him Prime Minister. I only hope that high intelligence is put behind the huge trading changes we need to survive. Just for the record, I see no reason at all to criticise his wife. None.

So in the play I would love to write of these frenetic days, so far the verdict would be Mistake, Muddle but no Malice Aforethought. But of course the full story has not yet been told…

Of the other challengers, save one, I will be brief. I can see Theresa May as a Prime Minister who would command respect across the House. Playing a cautious hand, she certainly has the experience to lead. I know little of Dr Fox or indeed Stephen Crabb, although I can see the latter in the frame in a few years.

But I was extremely impressed during the first television debate with Andrea Leadsom. My side of the case was not served nearly as well as the Brexit one. Boris was statesmanlike, despite some very regrettable aggression shown to him. Gisella Stuart was calm and very impressive. Andrea
Leadsom was simply superb. Why do not more politicians realise that absolute clarity coupled with a smile and obvious decency count for so much with the mass of the public?

In a word, I think that Andrea Leadsom has what it takes. But hey, not down to me.

Next blog, Her Majesties Opposition. More advocacy will be needed.

We live in interesting times. Calm down, says Her Majesty. Respectfully, I could not agree more.

Nigel Pascoe QC

What now?

The people have spoken and we who thought otherwise must bite the bullet. I entirely accept the identified disconnect between politicians and populace and there is no doubt that it must be addressed by all politicians who aspire to lead. We must limit future immigration on a rational basis. No party can afford to prolong the status quo. All manifestos in future will have to move beyond vague platitudes to reasoned proposals.

All that suggests a future healthy and constructive debate on this most difficult issue. There is every reason now why that can be conducted openly and calmly with no quarter given to the minority of racists who peep beneath the bedspread of great parties or none. I absolutely agree with those who call for a kinder less malevolent politics as a legacy for Jo Cox and in any event. We simply cannot live anymore with vicious and evil personal attacks in print, which debase campaigning journalism and are not justified by results. The virulence of the bitches of Fleet Street should no longer be heard.

Not one part of that deliberately provocative description should be taken as covert support for censorship. It is simply the cruelty that I find so painful. The fine tradition of radical journalism does not encompass deliberate personal attack, demeaning and spiteful as they have become. We can do better.

All of which is a prelude the the question of the hour – what now? The answer is the need to stimulate other trading relationships as soon as possible. There will be an economic downturn which will hurt most the very dispossessed who have dared to vote to leave. Those of us who wanted to remain should avoid endless recrimination and post-match analysis. In one sense we should outbrexit Brexit. By that I mean promote every conceivable initiative which stimulates other trading relationships. If Europe in the short term will not accommodate us, others will.

So the new government should create the most dynamic gold plated sales force we have ever possessed, A new Department led by someone of the calibre of Andrea Leadson working with the best and most successful businessmen in the land. Recruit a whole new generation of super sales personnel. Pay them by results. I have no qualms about that. And when they succeed, they should be recognised for the heroes they will have become. The economic saviours of a fractured worried divided nation.

In short, the sooner we trade ourselves out of trouble, the better.

Nigel Pascoe QC

England expects…

I started intending to Remain and nothing has changed my mind. But that does not mean a condemnation of all canvassing. The best advocates have been from that side of the debate. Michael Gove, Andrea Leadson and Gisela Stuart have been outstanding, with charismatic contributions from Boris Johnson. David Cameron has worked his socks off, but I have been less than impressed by the support he has received across the board. Sadiq Khan and Ruth Davidson this evening were honourable exceptions

But will advocacy carry the day? It would be in the teeth of the overwhelming economic evidence in support of Remain. I have absolutely no doubt that there would be real financial hardship in the short term and a run on the pound if we leave. The weak Brexit response that experts should not be believed is hard to credit. They have been defeated comprehensively in this field and that probably will be decisive.

That leaves sovereignty, security and immigration, where the evidence and assertions are far more difficult to assess. The great majority of voters accept the premise that our sovereignty has been compromised and there is precious little we can do about it without decisive action. Similarly with immigration. Forget the covert or even overt racists. There is widespread frustration outside London at the scale of immigration. It takes calm careful argument to seek to highlight its positive benefits, particularly in the NHS. Remain simply have not addressed the issue and fears over a long period and it remains the joker in the pack, which of course could upset all calculations and polls.

For me, security is the decisive issue. We are safer trying to keep the peace inside Europe rather than pontificating outside. We can be the decisive voice round the table. I also favour maximum European cooperation to combat terrorism. Secondly our children have better prospects if we remain. Thirdly and personally, the French medical system supports one of my children admirably and nothing would persuade me to compromise that. And cooperation in medical research is vital.

Personal and political reasons, like most electors. What I worry about now is the sense of disillusion when Remain win. That is where leadership will be critical.

Nigel Pascoe QC

The Price of Pain

We are a compassionate people. We know that most disabled people suffer pain or reduced mobility or both. We recognised their reduced or non existing chance to work. We wish that our money will alleviate to some degree their suffering. We wish it freely and without strings. We do not fine-tune our compassion.

That is the true background against which the Chancellor has made the worst political mistake of his life and his colleagues in government should hang their heads in shame. Cutting benefit for the disabled, in whatever form, eventually will be seen as a bigger mistake than the poll tax. Electoral poison in the hands of the clumsiest of spin doctors. A shocking and disgraceful mistake for the rest of us.

Fortunately there are decent Conservatives who feel exactly that and even now are mobilising support. The Chancellor, who in many respects constructed an intelligent and imaginative budget, must realise that the gravity of his mistake will rob him in time of the highest office in the land. He should recognise his mistake and abandon this cruelty without delay. In a word, it stinks.

Nigel Pascoe QC