This weekend the news was dominated by the tragic revelation that a woman committed suicide part-way through a trial over whether she had been indecently assaulted and raped. Unaware of her death, the jury convicted Michael Brewer of five indecent assaults and acquitted him of three similar charges and rape; he awaits his sentence. Commentators fell over themselves as they rushed to condemn the manner in which rape trials are conducted and, in particular, the way barristers do their jobs. The fact that the Brewer’s victim, Frances Andrade, chose to be cross-examined in open court and not via a CCTV screen, has largely been ignored. Her decision was inconvenient for their chosen polemics.
We are told that complainants feel like they are being raped all over again in trials. Undoubtedly, that is true in many cases. Let’s be absolutely clear about this. There can be no doubt whatsoever that having to recount in public the manner in which you have been raped is as traumatic as the rape itself. We are driven to this conclusion by reams of therapeutic evidence and by everything we ever hear from rape victims who go through trials.
However, it cannot be true in those cases where the complainant is lying. Some people tell lies in court. As a society, there is a very great taboo in discussing the fact that some women lie when making rape allegations. By and large, the media and our politicians are not interested in the facts of life about rape trials. For example, the established media endlessly repeats the myth that the conviction rate in rape cases is tiny. Actually the rape conviction rate is higher than it is for the average conviction rate for other reportable crimes. Unfortunately, those who pretend to inform us, tend to mislead us. Neither the established media nor our established political parties give a damn about the facts. All they seem to care about is a sudden surge in popularity.
How can we conduct these trials and still maintain a fair trial system? How can we provide emotional protection for the women making rape allegations and still allow a defence lawyer to test those allegations with detailed questioning? These are very difficult questions to answer. Cross-examination is at the heart of every trial. Without it, there cannot be a fair trial. If anyone tells you otherwise, suggest they go and observe a trial in a country where it isn’t allowed or is restricted. In Brewer’s case, the trial judge declared that the cross-examination was fair. Excepting the people who were uninvolved in the trial and watched the cross-examination in person and all the rest of the trial, no-one can usefully comment on that judicial opinion. We have to take it as it is. Clearly, the jury believed some of the victim’s allegations but were not sure beyond reasonable doubt about all of them. Therefore, the cross-examination was partially successful.
Of all the world’s legal systems, none has yet bettered the method we use: allowing detailed questioning of each witness. The entire point of such questioning is to draw out inconsistencies, discrepancies, contradictions and so on, so as to be able to claim that a witness’s evidence is less credible than another’s. That’s how every trial works, criminal or civil, in this country. The same techniques are applied to a simple cash claim following a road traffic accident, a multi-handed conspiracy to defraud or a rape trial.
Incidentally, we use much the same approach when assessing politicians. However, when they meet a challenge they cannot deal with, they just go quiet. In a court of law, that is not much of an option. Juries can be expected to draw their own conclusions.
There are two important differences with most rape trials. Firstly, the only witnesses are usually the alleged victim and the alleged defendant. That means that it isn’t possible to highlight differences between the witnesses on one side of the case. Secondly, the questions will inevitably be of an intimate nature. It just isn’t possible to ask questions about someone’s underwear, vagina or penis, without crossing the normal social boundary of acceptability. The normal rules have of social etiquette have to be suspended, in the interests of a fair trial.
No-one likes being accused of lying, even liars. No-one likes being shown up as unreliable, especially the unreliable. No-one enjoys being cross-examined. In other criminal trials, a great deal of emotional distress is caused during cross-examinations. Such is life with criminal trials. They are not clean, clinical exercises with everything conducted as you might expect in a scientific lab. Real people present real problems.
There are obvious problems with the manner in which the justice system treats victims of crime. They are not cared for particularly well. We could spend much more money on treating them with the care and decency they deserve. For example, they could have much lengthier and frequent meetings with the Crown Prosecution Service (CPS). Although they should not be allowed to dictate the decision on whether to prosecute, they could be properly involved in the process.
All our mainstream political parties are calling for cuts to public services. None of them are calling for more money to be spent in this area. Our politicians are casting allegations of bullying against barristers, despite not having witnessed the trials they are talking about, not having any meaningful proposals for how to change the rules of evidence and not understanding how difficult rape trials are for the sometimes innocent defendants.
A friend of mine has been charged with rape. In reference to him, I wrote a post called what to do if a friend is charged with rape. His case is due for trial later this year. He’s maintained his innocence. For legal reasons, I prefer not to comment on his case now. However, his pre-trial experience is commonplace: he has been on bail awaiting his trial for well over a year! If he loses his trial, he loses everything: contact with his children, a harmonious relationship with his ex-wife, his girlfriend, his reputation, his home, his liberty. Over the last year plus a few months he has faced the prospect of his fate hanging in the hands of an eventual twelve strangers. His experience is commonplace. A substantial number of the men accused of rape are innocent.
The justice system visits enormous stresses on innocent people. In many of these cases, including my friend’s, there is no justification for having to wait in torment for so long for a trial. The reason for the delay lies with the incompetence of the Crown Prosecution Service and/or the money we choose to spend on the justice system. This is unacceptable but we don’t hear politicians calling for more money to be spent, to save innocent men from this incredible stress overload. Clearly, our politicians are not terribly interested in fair trials. If they were, they would call for justice to be dispensed faster. My friend feels like he is being punished now, despite being, according to law, presumed innocent.
Much more money must be spent on the justice system. We need sex cases to come to trial much quicker, so that those men who are falsely accused, do not have their lives ruined by the delay. We need rape victims to get proper care and attention by the prosecuting authorities. One fifteen minute chat with the CPS prior to trial is not only inadequate, it is grossly offensive. All this extra care and attention will cost money. The next time you hear a politician proposing reform of the legal system, ask them how much money they propose we spend to clear up these two issues. If they can’t answer, be their jury and draw your own conclusions.
However, there is another problem. For some time, therapists have been of the opinion that rape victims should not get treatment before a trial in case the defence barrister somehow uses those therapeutic conversations against them in court. It’s inevitable that a defence barrister will consider the option of scrutinising everything an accuser says about the alleged crime. Clearly, those calling for such areas to be off-limits to cross-examination have no clue at all about justice. It’s notable that in Hove, a local Tory councillor who used to be a senior police officer has made that call. Our police care about convictions, not justice. Sad, but true. Here he is, the Tory (Graham Cox), in a quick exchange with a local Labour Party candidate in Brighton (Emma Daniel) on twitter, on this very topic.
It’s only one example. Yet it typifies the whole problem with the way politicians tackle these problems. Here we have two people, both official representatives of their respective parties, spouting crap about how to improve justice in rape trials. There isn’t a shred of evidence that inquisitorial systems produce better justice for rape victims. I asked Emma Daniel to produce it but she declined. I asked the lawyers on twitter too; my request was retweeted by Carl Gardner, who has thousands of followers. No-one came forward with any evidence for this claim. None whatsoever. Ms Daniel’s second claim is that we can have a court system which doesn’t “further degrade and humiliate victims“. I asked her how many rape trials she has watched? She declined to answer that too. The fact is, as explained above, that it isn’t possible to cross-examine someone in a rape trial without going over all the details and calling them a liar. No-one wants anyone to be degraded or humiliated but all the evidence says that recounting these intimate details and being called a liar does risk humiliating the genuine victim. Thorough therapy could go a long way towards obviating that humiliation. That’s Mr Cox’s point. However, his tweet seems to suggest that somehow barristers should be prevented from asking questions which mention the therapy! The police would love barristers to be banned from asking some questions. How very convenient that would be, unless you care about fair trials.
Both of these two politicians are members of parties which support cuts to public services. Clearly, both of them are politically unable to address the main issues without a conflict with their party leadership. Caring for victims and speeding up justice will cost money which they are unable to promise. Instead we get these glib proposals which can’t be justified. It’s remarkable that Ms Daniel is happy to fire off a tweet about this, get challenged, not produce any evidence or links but doesn’t delete the tweet when she must have realised her error. There are no remaining political solutions to the problem of how to scrutinise allegations about private lives.
The therapeutic community could revisit its opinion on the merit of pre-trial treatment but obviously I’m not qualified to have a proper opinion on that, since I am not a therapist. The current thinking is that therapy involves conversations which can properly be a subject matter for cross-examination and thus may possibly interfere with a trial. Consequently, therapy is usually suspended until after a trial. Obviously, that frequently leads to a situation where traumatised people have to face further challenges in court, some of which will in themselves be traumatic. As a layman, I can’t help thinking that it would be better to give people therapy, to reduce their trauma and then let them go to trial. Sure, the barristers are going to ask those difficult questions but wouldn’t the genuine rape victim be better placed to deal with them after therapy than before? This is a question which can only be properly answered by experienced therapists who have also sat through rape trials.
Beware of politicians proposing solutions on this subject. It’s too easy for them to make wild claims. Beware of politicians who attack lawyers too. Everyone hates lawyers, until they need one.