Rape victims will now be warned in advance if defence lawyers plan to scrutinise their character or sexual history in court. Alison Saunders, the Director of Public Prosecutions, has published a major consultation to ensure victims are properly ready for the trial process.

The new proposals, which are subject to an eight-week consultation, will instruct prosecutors, both in-house from the Crown Prosecution Service (CPS) and from the self-employed Bar, in preparing victims for the ways in which defence teams will attempt to undermine their version of events in front of a jury. The guidance would ensure victims are informed if their own character or sexual history is to be questioned in the witness box and made aware of the defence case.

Speaking today, the DPP Alison Saunders today said that the law was ‘not a game and the court process is not about ambushing the witness‘.

‘Asking someone to come to court without any idea of what they face in the witness box does not seem fair to me. To stand up in a formal setting and to be asked sometimes difficult and personal questions in front of a court full of strangers is a very big ask. In coming to court to give evidence, victims and witnesses are performing an important public service and I think we can assist them better – and I know from talking to victims that it is often not knowing what they will face that is most daunting.’

Saunders explained how this guidance seeks to improve support to victims through the court process and will give prosecutors confidence to do so without fear of allegations of coaching (see here)

Specifically, the guidance will instruct prosecutors to:

• Inform witnesses about the general nature of the defence case where known (e.g. mistaken identification, consent, self-defence, lack of intent);
• Inform witnesses of the fact that third party material has been disclosed to the defence which is capable of undermining the prosecution case (e.g. social services, medical or counselling records); and
• Inform witnesses if leave has been granted to the defence to cross examine them on bad character or sexual history.

As well as this prosecutors are expected to:

• Introduce themselves to witnesses and explain their role;
• Explain court procedure, including the oath taking and the order of the questions from various parties;
• Encourage witnesses to ask the advocate or judge to repeat or rephrase the question should they not understand;
• Remind witnesses that if they cannot recall an answer to a particular question, they should not be afraid to say so;
• Encourage witnesses to refresh their memory by asking to see their witness statement and go through it before answering questions in court;
• Explain the role of defence advocates and encourage witnesses to say clearly whether they agree or disagree with any suggestion put to them; and
• Encourage witnesses to ask for a break from questioning should they genuinely need one to restore concentration or compose themselves emotionally.

‘I know that some people will see these proposals as a radical change and that’s why I am seeking views from far and wide.’
Alison Saunders, Director of Public Prosecutions

A Telegraph article explains how the guidelines follow a number of high-profile cases in which witnesses or alleged victims have suffered during or after the trial process, including violinist Frances Andrade, who was found dead from an overdose a week after giving evidence against her abuser in January 2013.

Tony Cross QC, chair of the Criminal Bar Association, told the Today programme on BBC Radio 4 he is ‘deeply’ concerned about the proposal.

‘The Court of Appeal has clearly set out that training or coaching for witnesses in criminal proceedings – this applies to prosecution and defence witnesses – is simply not permitted. Our system of justice involves the confrontation – if I can put it that way – between the prosecution and defence as to what the witness is about to say, which should happen in the presence of the jury, not in a private room which the jury is not party to.’
Tony Cross QC

The Victims’ Commissioner Baroness Newlove, whose husband Garry was killed in August 2007 after he confronted a group outside his house, said most victims and witnesses do not know what to expect in court ‘until it is too late’ (see here) .

‘They are thrown into a highly intimidating situation through no fault of their own and then left with little or no explanation to help them through it.’
Baroness Helen Newlove, Victims’ Commissioner