In the week that the Guardian published this interview with Alison Saunders, head of the Crown Prosecution Service, talking about ‘the demonisation’ of young women contributing to the failure to secure more convictions of suspected rapists, one of most popular British soaps started a ‘rape trial’ storyline. The story has been building for months but the trial started on Monday with episodes throughout the week. I read the Guardian shortly before watching Coronation Street and, as a barrister who has run a number of rape trials so far this year, I was incredibly frustrated.
I watch soaps and legal dramas and I know they are often wholly inaccurate, but with rape I am afraid that they need to make more effort to get it right. The public (fuelled regularly by the media) have so many false impressions of such trials that I and others are concerned that it will lead to changes in the law and procedure that are both unnecessary and dangerous for those accused of such a serious crime. Now I’m on my soap box I had better say what I really feel: if Coronation Street have an obligation to portray rape trials accurately then anyone speaking on behalf of the Crown Prosecution Service has an even bigger obligation…
MYTH 1: victim support
Within the first few minutes of Monday’s episode, Coronation Street got it wrong. Carla was shown nervously waiting with another witness directly outside court and called in to give evidence. Where do I start? Firstly, all witnesses are offered support by the witness service based in each court. They are offered the opportunity to see inside courtrooms and they are given a comfortable place to wait with refreshments. Steps are taken to ensure that they have no contact whatsoever with defendants. Furthermore, I have yet to do a rape trial where the police officer in charge of the case has not been present to offer his or her support to the alleged victim. Those police officers are trained to do this and I know from experience that they put a great deal of effort into the job. The prosecutors that work on these cases are well trained too and will always meet with the victim beforehand. In fact, in the courts I work in, defence barristers are also regularly asked to speak with the alleged victim before the trial starts so that they feel more comfortable. In one of my cases this year I was asked to remove my wig during cross examination to ensure the comfort of the witness, despite her being over 18. Furthermore, every rape victim is entitled to apply for ‘special measures’, meaning that an application can be made so that they can give evidence from behind a screen or over a video link. It is very rare for Judges to refuse these applications. I suppose I should be grateful that AIison Saunders mentioned that the Judges that hear these trials are specialists….
MYTH 2: cross-examination
Now I know it doesn’t make for good TV and I am sorry to disappoint you all but rape trials are the types of cases that often cannot rely on the ‘surprise factor’. In particular, if a defence barrister intends to ask any questions at all regarding sexual history or behaviour then an application to the Judge has to be made beforehand. The law is detailed on this (Youth Justice and Criminal Evidence Act 1999, section 41) and there are many hurdles to jump. It has to be relevant to an issue in the case. I have lost count of the amount of times the media have portrayed the situation where a defence lawyer asks the details about a girl’s sex life including the number of sexual partners as a matter of course. In reality, these applications are made to the trial Judge before the trial and must detail the questions you intend to ask the alleged complainant and why. The barrister literally writes out their cross examination so that the prosecutor and the Judge are aware of the detail. In my experience Judges are extremely reluctant to allow these applications, even if they include previous allegations by the same victim. Just remember this when you see Carla being cross examined about her relationship with Peter on Coronation Street
MYTH 3: jurors vilify women
The Guardian article didn’t exactly give much credit to jurors did it? Yes it is correct to say that the judge addresses the jurors at the end of the evidence (as is the norm for all cases) but in rape and other cases involving sexual offences, specific directions are now given. Judges must speak to the jury about trauma and the effect that it can have on people. Essentially the Jury are told that, if they find that a person is traumatised by what happened to them, then they are able to look beyond the fact that they might have been inconsistent with their account. They are also told quite clearly that there is not a ‘normal’ reaction to being a victim of such offences, that some cry or some are silent and that such reactions are not indicative of truthfulness. You can therefore imagine how difficult it is for a defendant. The majority of these cases are word on word with no additional evidence so defendants rely on inconsistent accounts in particular to show that a witness might be lying.
Sadly, given the position that Alison Saunders holds, she is unable to say what we all know to be the case. Acquittal rates are not necessarily ‘failures’. They may well be the ‘just’ result in those cases. Lies are told and false accusations are made. It is not necessarily a positive thing to have a high conviction rate but I fear that people are afraid to say that.
I have nothing but admiration for those that give evidence in cases involving sexual offences – that includes MEN and women Ms Saunders. As a member of society I fully support the police and the courts in their aim to get convictions against those that are guilty of these truly horrific crimes. But I also support a legal system that allows those accused of any crime to challenge the evidence against them and to only be found guilty if the jury are SURE that they are so.
Alison Saunders wants to encourage women to come forward. I am certain that we all want that too. But neither her article nor the media are helping that to happen…..