23 March 2017
Justice or Injustice?
New Rape Evidence Rules Not Good News
Lynda Goetz
Only two weeks ago, (Shaw Sheet 09 March) I wrote about the case of 24 year-old Durham university graduate, Lewis Tappenden, who was cleared of raping an 18 year-old undergraduate at the same university. I did not expect to be revisiting the subject of rape quite so soon. However, earlier this week, it was announced by Elizabeth Truss, the Justice Secretary, that from September this year, rape victims would be spared cross-examination in court and that instead, juries will watch pre-recorded cross-examinations (which may be even be edited by judges who can cut out ‘inappropriate’ questioning). Is this really a good idea?
The intention is that this new system will “reduce the level of trauma for the victim” and moreover “resolves the case much earlier for the victim”. I never took my legal career to the heights of Ms Truss (who is also Lord Chancellor) nor of Alison Saunders, who is our current Director of Public Prosecutions (DPP), and thus responsible for the Crown Prosecution Service, nor was I involved in criminal law, but it does seem to me that referring to the accuser as ‘the victim’ before any decision has been reached by the court is not only entirely wrong, but highly dangerous if justice is to be properly served. Women (and men of course, for this new proposal relates to all adult sex trials) can make false accusations. In such instances the court case will be highly traumatic and stressful for the defendant. They are accorded no leeway. (For every Ceri Linden, there’s probably a Jay Cheshire – both committed suicide: one out of fear of facing her attacker in court; the other cleared after a false accusation). Justice is not being dispensed if an accuser can not only hide behind anonymity, but also, in future a pre-recorded cross-examination.
Interestingly, Zoe Gascoyne, Chairwoman of the Criminal Law Solicitors Association warned that “This may be a step too far.” She pointed out that taped interviews could not take account of real-time developments in many cases as they often took place long before the proceedings commenced. James Conte, the man who founded the website accused.me.uk , a support group for victims of false allegations of rape, considers that these changes will increase the chances of wrongful convictions and do not serve the interests of justice. The Justice Secretary’s response was that this was not about “changing the balance between the accuser and the defendant”. It is hard to see how this will not be the case.
As the law stands at present, complainants are already entitled to give their ‘evidence in chief’ (i.e their side of the story) on a video that is recorded almost immediately after they have made their initial complaint. (This, incidentally, was how Ceri Linden’s evidence was able to help convict her attacker). This has been the case since 2009. Prior to that, the 1999 Youth Justice and Criminal Evidence Act had already created special measures for vulnerable or intimidated witnesses, including the right to give evidence from behind a screen. As Luke Gittos, author of Why Rape Culture is a Dangerous Myth, writer for online news magazine Spiked, and criminal lawyer with extensive experience of rape cases, points out, this new proposal will also give rise to practical problems, as indicated by Zoe Gascoyne. Under normal circumstances, the defendant’s lawyers are able to respond to new or different evidence given by the complainant during the course of cross-examination – in other words, real-time developments. If the cross-examination is pre-recorded then the ability of the defendant and his lawyers to respond to new evidence is severely limited.
Luke Gittos also takes the view that conviction rates may even go down under the new system, as juries may be reluctant to convict if they do not ever see the complainant in person. Surely he has a point? Since rape cases are, by their very nature, extremely difficult to judge, being one person’s version of events against another’s, anything that makes it easier to come to a conclusion should be embraced. If that includes seeing both parties in the flesh and listening to the live-spoken words of each, then that must be fairer than giving advantage to a complainant who has already been designated a ‘victim’ before proceedings have even begun? Fewer convictions would presumably not be the result intended, even if it does reduce the time rape cases are taking up in the over-clogged court system. Giving evidence in court about a traumatic event is understandably stressful; as would be appearing in court accused of a rape of which you are not guilty.
Real rapists are despicable criminals who should be punished accordingly, but in attempting to do so, we should never lose sight of the fact that our criminal law system works on the principle of being ‘innocent until proved guilty’. It does feel increasingly as if in rape cases, men, and I use the word advisedly, are guilty until proved innocent.
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