Chair's Update:
Francis FitzGibbon QC
Section 41
Professor Ormerod gave a typically illuminating lecture on 21st March about evidence of complainants’ previous sexual history, and the impact of the Ched Evans judgment (legally, none; politically, substantial). The recording will be available on the website in due course. The slides are here.
The MoJ are conducting a study on the working of Section 28, with a contribution by the CBA. The private member’s Sexual Offences (Amendment) Bill, sponsored by Liz Roberts MP, has its second reading in May. Meanwhile, Harriet Harman MP has gone a stage further, and has proposed an amendment to the Prison & Courts Bill, which would ensure that no evidence can be adduced and no questions may be asked in cross-examination by or on behalf of the accused about any sexual behaviour of a complainant, in the words of the Bill’s ‘Explanatory Statement’.
The CBA’s position is that Section 41, as currently interpreted by the Court of Appeal and trial judges, strikes the right balance: it protects complainants from unfair and gratuitous attacks, while leaving room for questioning in the highly exceptional circumstances when this evidence is needed to avoid the risk of a wrongful conviction. There can be no harm in conducting rigorous and fair research to see if Courts are applying the law correctly or if it is creating injustice: the model would be the research that Professor Cheryl Thomas did for MoJ on juries in 2010: Are Juries Fair? (answer: yes). We believe in evidence-based policy, not policy-based evidence.
Section 28
The Lord Chief Justice found it necessary to correct misleading statements from the MoJ about the use of pre-recorded evidence by complainants in all sex offence cases: it won’t be happening. Instead, there will be a pilot scheme in the same Courts that have piloted it for children: Leeds, Liverpool and Kingston. Strangely, the misleading press release has not been taken down from the MoJ’s website.
Angela Rafferty QC, our vice-Chair, spoke authoritatively about Sections 28 and 41 on Woman’s Hour. Angela has been a member of the group headed by HHJ Rook QC, which has developed the training for advocates in cross-examination under the Section 28 procedure.
It’s worth remembering that Section 28 has been the law since the Youth Justice & Criminal Evidence Act 1999 was enacted, but it has not yet come fully into force. It is one of the ‘special measures’ with which we are all familiar.
There are witnesses who by any standards are vulnerable. They could not withstand giving evidence under present conditions, and if they could, its quality would probably be poor. Children and people who are mentally vulnerable in particular should be given special consideration. The axiom of the vulnerable witness training is that the advocates (and the Court) should accommodate themselves to the witnesses, not the other way round. Likewise the Court process: hence the taking of this evidence as early as possible, and with as little stress as possible. The vetting of questions by the Judge is intended to reduce questioning to the essentials. The discipline of preparing a short, focussed cross-examination is a good one.
The Evaluation Study of the first pilot scheme suggests that it worked well and generally improved the quality of evidence, with a reservation: Some defence advocates felt s.28 conditions meant they were not able to effectively question the witness, for example if they wanted to follow-up on body language or an answer given during cross-examination with questions that had not been discussed in the Ground Rules Hearing.
The CBA’s view is that pre-recorded evidence should never be the default setting for all witnesses in sex cases. Not all of them have vulnerabilities that the other special measures (screens and live links) cannot remedy, for trial purposes. Taking the evidence wholly out of the Courtroom has a cost in impact and the jury’s ability to make an all-round assessment. It is remote in all senses, less real. The sheer number of sex offence cases would present an administrative nightmare for listing and the availability of advocates if every complainant or even most of them gave all their evidence weeks or months before the trial.
Court Hours
On which subject, HMCTS is piloting a split-shift scheme in Newcastle and Blackfriars Crown Courts, Highbury Corner Magistrates Court (and possibly elsewhere). From a date to be announced in May, the pilot courts will sit from 9-1, with one judge and list, and from 2-6 with another. There will be no carry-over.
The MoJ have been warned of the obvious practical difficulties by the CBA, the Circuits, the Bar Council and a number of solicitors' representative bodies. The response has been to bring the originally planned starting time of 9.30am forward to 9am, without a sensible explanation. Advocates' availability cannot be taken for granted, nor should it be. We are inviting feedback from members whose work – and life – is adversely affected by this pilot, in particular those who find it makes childcare or other domestic responsibilities difficult to manage. Please email me, Aaron or Sarah with details of any difficulties encountered.
In the meantime, the CBA is working with others on a protocol to make court hours compatible with practitioners’ other needs and responsibilities. All too often, our availability is taken for granted. More to come on this in the near future
AGFS & LGFS
Discussions following the close of consultation, to improve the proposed scheme, are continuing. MoJ are well aware of the CBA’s demands. We have submitted a response to the LGFS consultation
Rook Valedictory
HHJ Rook retires on 31st March. There will be a valedictory for him at 10.00 on that day in Court 1 at the Old Bailey.
In almost his last act at the Bailey, HHJ Rook devised and starred in the 'Forever Trial & Error' Theatrical Revue Fundraiser, staged in No.1 Court earlier this month. The show featured great moments from the trials of Jeremy Hutchinson QC and Marshall Hall QC. Special playing cards were designed for it, which depict past and present Old Bailey performers, and they are still on sale.
100% of the proceeds goes to the Sheriffs' & Recorder's Fund (supporting ex-Offenders) and Pan Intercultural Arts (supporting victims of people trafficking). Please order your pack(s) while stocks last. Details here.
Yours,
Francis FitzGibbon QC
The Criminal Bar Association
E: f.fitzgibbon@doughtystreet.co.uk
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