The Best Defence?

In June 1996, a man named Milton Brown picked up a woman at a nightclub and took her to his flat where he threatened her with a knife and forced her to have sex with him. Three months later he threatened to strangle another woman unless she had sex with him, and he made her give him oral sex repeatedly, at knife-point, for about 12 hours. At his trial he sacked his lawyers and cross-examined the women himself.

They went through what the trial judge described as an ‘ordeal’:

The whole experience must for those women have been horrifying and it is highly regrettable in my view, and a matter of understandable public concern, that the law as it stands permits a situation where an unrepresented defendant in a sexual assault case has a virtually unfettered right personally to question his victim in such needlessly extended and agonising detail for the obvious purpose of intimidation and humiliation.

He tried to overturn his convictions and reduce his 16-year sentence, but the Court of Appeal were having none of it ([1998] 2 Cr App R 364). They gave guidance to judges on how to control defendants who represented themselves, but within months the government enacted Section 34 of the Youth Justice & Criminal Evidence Act 1999, which simply banned defendants from doing their own cross-examinations in sex cases.

Other parts of the 1999 Act introduced ‘special measures’ to protect witnesses in criminal trials of all kinds, including the use of pre-recorded filmed interviews to stand for evidence in chief, video-links so that the witness did not have to share the courtroom with the defendant, and screens in the courtroom to prevent them seeing one another. These measures are now used routinely and seldom excite comment or objection by the defence. To some extent, they mitigate the undoubted distress that comes with giving evidence in Court.

Over the years, training for police officers who investigate sex offences, and for lawyers who prosecute them, has developed and improved. It may not always be effective: some people lack empathy, sometimes best practice is not followed. Lapses from it are to be deplored. For any truthful complainant in a sex case, it must be horrible to go through the legal process however hard it tries to be accommodating, and it must take courage to face an advocate who tells you that you have made it up, or that you gave your full consent to what happened.

Is there is a better way of trying sex offences? If there is, it has to retain the all-important presumption of innocence and the requirement that the Court must be sure of guilt before it can convict. It would be deplorable if an allegation of a sexual offence was given a special status, that meant it was assumed in advance to be the truth, or needed less good evidence as proof. In a criminal trial, the decision whether a contested allegation is true can only be made after the evidence has been tested, and tested thoroughly If you lose the presumption of innocence, or permit convictions on weak evidence, you return to witchcraft trials, or Stalin-type show trials. We don’t want that.

So evidence must be tested. If my client says to me that the allegation is made up, am I to say to him – sorry, I can’t challenge the witness because it may cause upset, even grievous upset? Suppose the allegation was made up – say by a complainant afraid of admitting infidelity to a partner, or of a strict parent who would punish them for a forbidden relationship. Unless the evidence is subjected to rigorous testing, how will the jury find out? Everyone deserves the best defence.

The Barristers’ Code of Conduct provides

303. A barrister:

(a) must promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other…

(b) owes his primary duty as between the lay client and any other person to the lay client and must not permit any other person to limit his discretion as to how the interests of the lay client can best be served.

And

708(g)[a barrister] must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness or some other person.

If you possess even a small amount of skill and judgment, it’s not difficult to fulfil your duties under para. 303 without offending against 708(g). If you do, the Judge will stop you at once and you may have to answer a charge of serious professional misconduct and face possible disbarment. It’s often unnecessary to make the direct accusation to a witness that they are lying: ‘show don’t tell’ is usually a far better way to make the point – by bringing out inconsistencies, inaccuracies, contradictions where there should be none – the clues that show the account under scrutiny may not be all that it seems. But sometimes the direct approach is inescapable, and justified.

Prosecutors will on occasion chase defendants up hill and down dale in cross-examination; aggression, sarcasm, accusations of lying are normal, and usually unobjectionable, because the aim is to get to the truth. Or if the truth is irrecoverable, to show at least that what the Court is hearing is not the truth.

A woman takes her life after giving evidence in a grim trial of serious sexual offences; it is of course an appalling tragedy. We do not know what made her do it. If it leads to improvements in the treatment of complainants at all stages of the legal process, then some good may come from it. But lowering standards and restricting the defence in sex cases would be a disaster.

 

 

About Francis FitzGibbon QC

I am a QC and member of Doughty Street Chambers, London (www.doughtystreet.co.uk). I practise criminal law. Please do not look for legal advice in this blog as you won't find any. The views expressed here are my own.
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12 Responses to The Best Defence?

  1. carter2011 says:

    The rules are exactly as you describe them – one would expect nothing less from a learned blogger. But, and it’s a big but, as I pointed out here – http://itsjustahobby.wordpress.com/2013/02/09/rest-in-peace/ – a number of the reported remarks of the defending barrister were not questions designed to expose ‘inconsistencies, inaccuracies, [or] contradictions’ but assertions forming an ad hominem attack upon the victim. The problem is that the practice has deviated from the code, and in particular, despite what you say, the judge allowed ad hominem attacks on the victim thatw ere not questions, but mere assertions made by a barrister whose line of defence didn’t have a leg to stand upon (if I may mix my metaphors for a moment).

    • You’ve read the transcript? You know what the defendant’s instructions were? You must be aware the Judge specifically told defence counsel that she had conducted the defence case properly

      • carter2011 says:

        This is, if I may be so presumptuous, an obvious example of the kind of bullying performance advocates put on when challenged, I cannot know what the defence instructions were, and you know that. Asking if I know what they were is rhetorical bullying married to self importance.
        The press reports of the things said were quite reliable enough for me not to need the transcript – or are you suggesting the rpess reports were wrong? The judge’s exoneration of the defence advocate was no more than a cynic would expect of the legal establishment, especially if you believe, as I do, that we have moved away from cross examination to a form of ad hominem attacks and bullying is these cases.

        By not engaging with the substance of what I said you come across as a pompous defender of an establishment that is not willing to consier that its practices have left a woman, a victim, dead. And all in the name of defending a man who was guilty. Nice work, if you can get it.

    • Part of questioning the complainant’s case in circumstances like these is putting the defendant’s case. The defendant’s case was that this complainant was making it up. How can that case possibly be put without asserting that the complainant is a liar or a fantasist? Surely, “I put it to you that you are mistaken about this” would be wholly inadequate, and the Judge would insist that it be put to her that she was lying. This is a genuine problem. But the QC acted properly on the basis of what I have heard.

  2. Dave says:

    Surely if we gag defence counsel it’s a slippery slope. Any improvement in witness care is to be encouraged but if we are to have faith in the conviction of a defendant the evidence must be tested thoroughly.

  3. Malcolm James says:

    There is a particular problem in historic cases of rape and abuse where the passage of time means that it impossible to obtain forensic evidence, or for the defendant to have, or even less substantiate, an alibi. In such cases, showing the complaint to be unreliable is the only defence available.

    • Absolutely right. These are probably the most difficult cases both to prosecute and, ironically perhaps, to defend.

    • carter2011 says:

      Indeed. Ad the way to demonstrate unreliability is to lead soem evidence, not to make assertions and hope you upset the witness enough that she kills herself midtrial.

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