A question of balance: pre-recorded cross-examination of rape complainants and fair trial rights
Rape is arguably the most intrusive and impactful of all criminal offences. It is personally demeaning, causes substantial short and long-term harm (both psychologically and physically) and can involve significant abuse of trust or power.
It is of central importance that those who are victimised are supported in engaging with the investigation and prosecution of rape. It is equally true to say that this process is an unfamiliar, stressful and normally invasive experience for victims of rape.
It is vital to mitigate the unique trauma of giving evidence in a rape trial; but valid questions about the fair trial rights of those accused of rape cannot be ignored. This issue has been resurrected by the Government’s announcement that it will roll-out pre-recorded cross-examination (PRCE) for rape complainants after a pilot of the measure (provided for under Youth Justice and Criminal Evidence Act (YJCEA) 1999, section 28). Justice Secretary Liz Truss has argued that PRCE ‘will spare rape victims the trauma and inconvenience of attending court hearings [and] will be rolled out across the country from September’.
In justifying the expansion of the pilot several months sooner than planned, she said:
‘This will not reduce the right to a fair trial, but will make sure victims of these abhorrent crimes are protected and able provide their best possible evidence.’
It is this last statement – and its claim regarding fair trials – which will be examined in this article.
Under section 28, one of the ‘special measures’ available to assist vulnerable complainants was a judicial direction for:
‘[A]ny cross-examination of the witness, and any re-examination, to be recorded by means of a video recording; and… for such a recording to be admitted, so far as it relates to any such cross-examination or re-examination, as evidence of the witness under cross-examination or on re-examination, as the case may be.’
Recording would take place outside of the courtroom and prior to the trial. The accused and the jury would not be present for the cross-examination, viewing it afterwards. This was not implemented at the time of royal assent; a limited pilot (covering three courts) was launched in late 2013. After a year, those involved were interviewed and a report was published in 2016.
Described as a successful trial, the Government has wholeheartedly embraced a national roll-out on an expedited schedule. However, it should be noted that the Lord Chief Justice today responded to this announcement, suggesting that section 28 would in fact be introduced on a ‘phased basis’ to ensure adequate training and proper facilities. This seems eminently more sensible, considering the issues which will be highlighted in this article; as the Lord Chief Justice states, ‘all manner of issues will arise’ because of the unknown levels of uptake and logistics. But the issues go deeper than this. A number of practitioners have raised concerns about the measure and the implications it has for fair trials.
Victims or Complainants?
To begin, the language used in this context is concerning: specifically the repeated characterisation of witnesses in rape trials as victims. Section 28 itself makes no mention of this word – it refers only to ‘witnesses’. But the language used by the Justice Secretary, the media, and various other commentators characterises the beneficiaries of PRCE differently. Complainants may in fact be victims of rape; but to adopt this term as a default prior to the establishing of any offence or the conviction of an offender is not merely a matter of semantics. It subtly undermines the fundamental concept of legal proof of an offence – there cannot, in legal terms, be a victim until there is an offence.
It can influence, consciously or not, the assumptions made about the parties to the trial: that the complainant is, unquestionably, a victim and that the defendant is guilty. Such assumptions potentially erode the presumption of innocence (which all defendants are entitled to under Article 6(2) of the European Convention on Human Rights); potentially lower the burden of proof incumbent on the prosecution because there is a default assumption that the complainant is honest; and can make detection of false allegations of rape more difficult for the same reason.
The last of these is the most difficult to wrestle with. The limited evidence available suggests that false allegations of rape are rare. This argument is sometimes misused, deployed to over-state the statistical risk of wrongful convictions and undermine genuine rape victims. However, preventing wrongful convictions is vital for myriad logical and historical reasons. Principles like the presumption of innocence, burden of proof, and the right to silence are considered sacrosanct because even one miscarriage of justice is one too many. Considering how abhorrent a crime rape is and the stigma attached to it, this is possibly more vital in this context.
Whilst the use of such language may hold no sway over thoughtful criminal justice professionals, the language used to describe the parties to the trial is arguably more likely to influence a jury’s view of the case and possibly prejudice their decisions. Juries are laypersons, with little exposure to the legal system. They are also not robots – they are burdened with subjectivity and bias like any other human being. The procedural framework of criminal justice is designed, as far as possible, to reduce the influence of these traits, and promote objective, evidence-based deliberationwhich respects fundamental principles of fairness. If this framework impliedly favours the prosecution – through its construction or language – this is of concern. Section 28 does not do so explicitly and careful judicial directions would avoid terms like victim; but the publicity surrounding this change does, and will likely permeate the public consciousness – a public from which jurors are drawn.
PRCE detracts from the concept of the trial as an organic, evolving process. New questions and issues are raised once evidence is examined; lawyers (under judicial guidance) may pursue subsequent scrutiny of the answers offered by witnesses. The dynamic trial process emphasises for a jury that the facts presented by the prosecution and defence are not carved in stone, that all evidence is open to scrutiny and that arbitrary time-limitations should not prevent the truth from being revealed to them. The ‘to and fro’ of interactions in court – between lawyers, witnesses, and judges – is an essential part of the oral tradition of England and Wales. Investigation of criminality is not a static process of bureaucracy, but a live, dynamic debate. There is an immediacy to live evidence which can assist the jury in assessing the credibility of the parties involved.
PRCE takes a step away from this tradition by removing the process from the live trial. There are obvious benefits for the emotional wellbeing of the complainant; but there are clear questions about how this impacts on the presentation and scrutiny of evidence before a court. For comparison – would we consider such a procedure to be acceptable for a defendant? We expect a defendant to attend court, provide live evidence (and potentially face adverse inferences if they do not) and answer the questions of the prosecution. Compare this to a recorded police interview, which takes place well in advance of the trial; which does not involve live observation by the jury; which may be of variable quality; which may inhibit the ability to communicate non-verbal responses clearly; and cannot be probed any further – it is fixed evidence which can only be considered retrospectively.
If the defendant no longer attended the trial and this recording replaced evidence-in-chief, there would, understandably, be outrage.
It could be argued that a defendant does not experience the same emotional trauma as a victim of rape and so does not deserve such measures – but again, this defaults to the assumption that a complainant is genuine and a defendant is guilty. If the defendant is in fact innocent, the process will be equally traumatic. However, this fact alone does not automatically justify pre-recording of evidence for all rape defendants, and the same argument can be applied to complainants. Indeed, it might be argued that other offences involve comparable emotional stress and trauma, yet complainants and witnesses are not afforded the same special measures. In contrast, defendants are treated homogenously regardless of offence – for example, anonymity is not granted to rape defendants on the basis that the offence should not differentiate the treatment of the defendant. These inconsistencies lack clear justification.
A significant ongoing problem for the defence is early disclosure of evidence by the prosecution. Alongside complainant welfare, section 28 is justified as supportive of the modern drive for efficiency and economy. These dual goals are designed to ensure that trials and associated procedures are both swift and cost-effective. Timely disclosure is part of this culture, but is a source ongoing tension between practitioners. The defence may not know the extent of the accusations against them during police interview or even at their first court appearance. The police and prosecution are often responsible for late compliance with disclosure obligations, as opposed to the defence.
This concern is nothing new; it is well established that the defence receive scant information from the prosecution prior to the first hearing, therefore restricting the ability to advise them. At the earliest stages, the prosecution is only required to disclose Initial Details of the Prosecution Case (IDPC) if the defence requests it (Rule 8.2(2), Criminal Procedure Rules). The scope of this disclosure is narrow – normally, a brief summary of what the case may be against the defendant, prepared by a police officer. There is clear evidence that pre-trial disclosure by the CPS is often inadequate (for example, see J. Plotnikoff and R. Woolfson, A Fair Balance? Evaluation of the Operation of Disclosure Law, RDS Occasional Paper No 76).
Depending on the timing of PRCE of complainants, this issue may be significant. If the prosecution fail to disclose their case and relevant materials to the defence in a timely fashion, the lawyer charged with undertaking the cross-examination would be ill-equipped to effectively question the complainant. A ground rules hearing in advance of PRCE is used to determine what questions will be asked – but if the defence lack the material needed to properly design these questions, they are disadvantaged.
This is not a fanciful argument because of the potential for PRCE to take place well in advance of trial, and possibly shortly after initial interview of a complainant. Indeed, one of the arguments presented in favour of section 28 PRCE is that early questioning will improve the recall of witnesses. It is well known that the prosecution have struggled for some years with timely and complete disclosure in advance of hearings. Should this be the case in relation to a section 28 PRCE, the potential for fairness to be undermined would be palpable. In such circumstances, PRCE should be delayed to ensure full disclosure – but this then creates an unfairness for complainants and undermines the rationale for early PRCE. Further, in the current culture of efficient case management and economy, one can envisage the court being disinclined to allow any delays. This problem is largely theoretical at this stage (although the pilot does raise and discuss the issue of disclosure); but it is an issue worth bearing in mind.
Jury assessment of testimony
In removing the process of cross-examination from the courtroom, the most obvious question is: will this affect the ability of jurors to assess the evidence? One might be inclined to conclude that the evidence remains the same wherever it is presented. However, this is perhaps naïve. The tradition of live evidence is founded on the idea that we communicate both verbally and non-verbally, and that both provide clues as to the reliability and credibility of the evidence. For example, body language, tone of voice, and facial expression all indicate something about how honest and genuine a witness (defence or prosecution) is. Requiring someone to provide evidence under oath in the formal environment of the court is designed to truly test their credibility. There are legitimate arguments about such an environment distorting and even destroying credibility of witnesses purely because of nerves or stress. However, this does not automatically mean that live evidence should be abandoned – it can be mitigated, as the various other special measures under YJCE Act 1999 have demonstrated.
PRCE does not prevent jurors from seeing and hearing the evidence of complainants. But it is hard to deny that there is a significant difference between observing someone in the flesh as part of a formal court process, and watching a recorded version. The question that should be raised is therefore whether jurors will be able to ‘read’ PRCE in the same way as live evidence. This is an issue that merits focused research, and would perhaps justify a less than full roll-out to more comprehensively ‘road test’ section 28.
A practical consideration is the logistical challenge of implementing section 28 (as recognised by the Lord Chief Justice). Quite clearly, PRCE depends on technology, both at the recording and presentation stages. The equipment used to record PRCE must be of substantial quality to ensure that the evidence is clear and understandable for the court that views it. The same can be said of the equipment used to play it. The facilities in which it takes place must be adequate. Practitioners need to be adequately trained in the use of this technology and in dealing with evidence via recording, which will clearly require a different approach to traditional court room advocacy. Careful thought needs to be given to the timing of PRCE; for example, how far in advance of the trial should it be recorded? Has full disclosure taken place? How does this fit with other case management requirements?
Organising this vital procedure (which is essentially part of the trial) may be challenging considering the aggressive timetables courts must work with, the extensive requirements on all parties in advance of trials, and the financial challenges facing courts, prosecutors and defence lawyers.
Significant issues with any of the above could impair the ability of both the prosecution and the defence to present their best case and ensure that fair trial rights are upheld. For example, what if a recording is of poor quality or the jury cannot clearly observe how the complainant engages with questioning? What if practitioners simply do not know how to effectively undertake PRCE? What if the defence have not received crucial evidence? What if fixing a date becomes so difficult that PRCE either occurs too early (hurting the defence) or too late (hurting the complainant)? Again, how likely these are to be issues is currently unknown.
Best possible evidence
Another issue is the rationale that PRCE enables complainants to give ‘best possible evidence’. Undoubtedly, this is a noble goal and important – if complainants cannot provide an optimum version of their testimony because of fear, stress, confusion or other traumatic emotions, this will unfairly undermine a prosecution. This is arguably one of the primary reasons that so many rape prosecutions fail or are not pursued in the first place. Removing the barrier of psychological and emotional distress is central to ensuring a court hears all relevant evidence in its best light and legitimises the process as a whole.
However, to do so at the expense of the defence also providing best possible evidence is hard to justify, and section 28 may do this. Adversarial procedure is premised on the idea that both prosecution and defence are able to present the best version of their case, which a jury can then adjudicate on. Where there is imbalance due to factors not directly pertinent to the evidence (for example, the emotional distress of a witness or a lack of legal representation for a defendant), this process cannot function properly. The essential word is balance – both sides must have equality of opportunity to provide best possible evidence.
It should also be remembered that trials are not merely the airing of one-way narratives; they are about effective questioning of a case and honest presentation of evidence for all. Best possible evidence, for both parties, must allow this.
The potential problem with PRCE is that the advantages it offers to complainants may create some of the disadvantages for the defence alluded to above. It might be argued that, in some circumstances, the defence will not be able to legitimately and effectively question a complainant because:
- follow-up questions are limited to the initial recording (unless a further re-examination is granted by the court – which, considering the pressures of case management, is not likely to be encouraged);
- new issues cannot be addressed; or
- because the jury cannot observe live evidence and the reactions of the complainant.
This may compromise cross-examination as a whole, which is normally a central component of the defence case. Full and legitimate cross-examination is part of the defence’s opportunity to provide ‘best possible evidence’. If PRCE compromises this in favour of the prosecution, the adversarial balance is threatened and fairness of trials called into question.
Without doubt, more has been done and must continue to be done to ensure the well-being of rape complainants during the criminal justice process. There have been too many tragic instances of those alleging rape opting to remain silent or, at worst, taking their own lives.
At the same time, the ruin of the lives of those accused of rape and found to be innocent is a blot on the record of the system – admittedly, a statistically smaller one but no less serious. Balance is vital; fairness is crucial; we cannot take from one party and give to another. Ultimately, the criminal justice system is a formal process of truth-seeking; it cannot make assumptions about the defendant or the complainant, cannot take sides (impliedly or otherwise) and cannot lose sight of the need to preserve safeguards against miscarriages of justice.
It might be extreme to say section 28 dilutes the burden of proof or subverts the presumption of innocence; but it certainly has implications for them. A jury will observe a defendant in the dock and a complainant in the protected environment of a section 28 PRCE and may well draw inferences. PRCE will not necessarily cause miscarriages of justice; statistically, the majority of defendants will be convicted and the majority of complainants will be rape victims. But statistics should not compromise fair and robust criminal procedure, and do not justify weakened safeguards.
It has been argued that section 28 is part of a ‘feminised justice’ agenda – namely, that criminal justice should promote and protect the rights of women more proactively. This conclusion is questionable; whilst the offence of rape is clearly gendered, section 28 fits within a much broader and long-running pro-victim agenda which has influenced all areas of criminal justice.
The Blairite policy of ‘rebalancing in favour of the victim’ implied that defendants had too much going their way (which should be disputed in itself). Since that point, we have seen the introduction of special measures for vulnerable defendants, the victim impact statement, the victims code, limits on sexual history evidence, and other measures in non-sexual areas of criminal law. Much of this laudable – the motivation behind it cannot be criticised. But at times this agenda loses sight of the importance of fair and balanced procedure, the danger of prejudicial impressions of parties to trials, and the risks (equally damaging) of miscarriages of justice. Rebalancing with too much weight simply creates a different form of imbalance – in this sense, in favour of complainants.
The final point to raise is that none of issues raised above are easy to demonstrate. These are not concrete conclusions – merely questions that should be asked regarding the balance between protecting and assisting rape complainants and the fair trial rights of defendants. These are questions that, at present, have not been adequately addressed.
Author: Tom Smith and Ed Johnston
Tom is a senior research fellow and associate lecturer in the Faculty of Business and Law, University of the West of England. His primary research interests are criminal defence lawyers, legal aid and criminal procedure. Ed is a senior law lecturer at UWE. His PhD thesis ‘The Role of the Defence Lawyer in the Modern Era’ is due to be submitted in July 2017