Over the past few months, there have been a number of reports in the media highlighting concern for witnesses and complainants of crime, particularly complainants of sexual offences. The current Director of Public Prosecutions (DPP), Alison Saunders, and the former DPP, Sir Keir Starmer, have been particularly vocal on the issue. The headlines include, “Victims of crimes like rape deserve better in court” and “Police stations are intimidating for rape victims”.
Some of the headlines are misleading. For example, on 18th January 2015, The Telegraph published an article titled, “Men must prove a woman said ‘Yes’ under tough new rape rules”. The article was referring to guidance from the DPP to the effect that police should ask those suspected of committing rape why they believed the complainant had consented. This does not require the suspect to ‘prove’ consent. When it comes to the trial, the burden remains that of the prosecution to prove, beyond reasonable doubt, that the defendant lacked reasonable belief in consent. However, if a rape suspect fails to respond to the questions put to them by the police, and then later, at trial, claims to have had a reason to believe the complainant had consented, the initial silence may be used against him, as evidence of guilt. Creating an expectation that a suspect should explain the basis for a belief in consent may increase the potential for adverse inferences of guilt to be drawn against those who do not do so, despite the fact that there may be an innocent explanation for their silence, such as fear, anxiety or legal advice.
The stories behind the headlines address legitimate concerns – that victims of sexual offences should not be deterred from reporting the offence; that the criminal process should be made as bearable as possible; and that the negative emotional impact of testifying in court should be minimised. However, recent announcements and proposals from the DPP, as well as the suggestions made by the former DPP, raise concerns of their own. On the whole, despite claims that any changes should be made “without undermining the rights of the defence”, there seems to be very little consideration given to those accused of criminal wrongdoing. While the concern for complainants is well placed, many of the current proposals act to reinforce perceptions that those who are accused of committing a crime are necessarily guilty, and that those who assert that a crime has been committed against them are necessarily truthful.
With this issue continuing to generate public attention, it is important to consider some of the worrying implications of what is being proposed.
Referring to complainants as ‘victims’
Alison Saunders has asserted that complainants should be referred to as “victims” from the time they make a complaint. She feels this appropriate because “when someone goes to the police they feel they are a victim of crime”. She also states that “There is, of course, no presumption of guilt and whether someone is legally a victim of a specific crime by a specific person is for a court to decide”.
In some circumstances there will be no question as to whether the complainant has been vicitimised, and the real issue will be who is responsible for their victimisation. Moreover, in an informal setting, there may be no objection to referring to someone who claims to have been victimised, as a victim. However, in the context of a formal legal setting, and in terms of the vocabulary used by legal professionals, it is not easy to rectify these two statements from Alison Saunders. If someone is not legally a victim until it is proved that an offence has been committed against them, then it may be no more appropriate to call them ‘victim’ than it is to refer to the accused as being ‘guilty’. For legal professionals to publicly refer to a complainant as a victim can reinforce public perceptions that the person accused of committing the offence is in fact guilty. This brings into question the presumption of innocence. Exactly what it means to presume someone innocent, and exactly what this requires on the part of state officials, is open to debate. However, it has been recognised by the European Court of Human Rights that the presumption of innocence protects against official insinuations that one is guilty before conviction.
Informing witnesses of the defence case
The DPP has also announced that witnesses should be informed of the general nature of the defence case and that they may be questioned as to their sexual history or bad character during the trial. Where a trial is to take place in the Crown Court, the defence is under an obligation to make quite detailed disclosure of the nature of its case to the prosecution. This in itself raises issues of compatibility with the right to a fair trial. However, since that is the position in law, what is the harm of the prosecution then sharing some of that disclosure with the complainant? Perhaps the most likely and worrying consequence is that witnesses will be able tailor their evidence to the nature of the defence case, making it more difficult for the defence to cast doubt on the accuracy of a witness’s testimony as well as making it more difficult to show that a witness is not credible. Not only could this increase the prospect of wrongful conviction, but it brings into question whether the defence would be able to effectively challenge the witness, as is the right of the defendant.
Adapting the trial process
There is no doubt that giving evidence at trial is a difficult experience, and that complainants of sexual offences can be subjected to aggressive and intrusive cross-examination. The defence’s right to examine witnesses has not always been easy to rectify with the complainant’s right to privacy and to be free from inhuman and degrading treatment. Since 1999, special measures have been available to vulnerable witnesses in court, to assist them to give their best evidence and to minimise the negative emotional impact of testifying. Complainants of sexual offences are automatically eligible for special measures. These measures range from screening the witness from the accused, to pre-recorded evidence-in-chief and cross-examination through a television link. In addition, there are special rules preventing complainants of sexual offences from being questioned about their past sexual behaviour, unless certain circumstances apply. One purpose of these rules was to correct the unfortunate ‘rape myths’. These myths had influenced the way in which criminal justice professionals responded to rape complaints and deterred reporting of rape. The crux of these myths is that promiscuous women are more likely to consent than virtuous women and that promiscuous women are more likely to lie about being raped than virtuous women.
It has been suggested that the current rules do not go far enough to protect vulnerable witnesses and complainants of sexual offences, and that they are not used as rigorously as they should be. It has also been suggested that our ‘adversarial’ trial may need to be reformed in order to accommodate the needs of witnesses. One possible reform, which has been put forward by Sir Keir Starmer, is to allow judges to have greater involvement in the examination of complainants of sexual offences, adopting a more inquisitorial style of trying cases. Not only is it wrong to assume that judges would be any better at dealing with the needs of witnesses than trained lawyers, but there are also inherent dangers in transplanting foreign procedures and hoping for the best. As Damska famously put it, “the music of the law changes, so to speak, when the musical instruments and the players are no longer the same”.
It is not disputed that the current rules may not be applied rigorously enough. But it seems that the logical response would first be to improve training of those responsible for implementing them (including through the toolkits published by the Advocates’ Training Council), and to ensure that complainants have access to the information and support which is already available (as is their entitlement under the Victims’ Code).
It is important that witnesses and complainants are kept informed and supported throughout the trial process, and that they are able to give their best evidence. However, this should not, and need not, come with such a high price for defendants. The balance has already been shifted very much in favour of the prosecution, with official rhetoric implying that being ‘for victims’ means being against defendants. This rhetoric has led to a number of significant reforms to criminal procedure and the law of evidence, including those in the Youth Justice and Criminal Evidence Act 1999 and the Criminal Justice Act 2003, some of which have arguably compromised the defendant’s right to a fair trial.
It is concerning that this rhetoric continues to gain ground and that, what are likely to be publicly popular announcements, have demonstrated little to no concern for those accused of criminal wrongdoing. Perhaps instead of making public declarations for new methods of support for complainants and witnesses (which may fail to adequately address concerns in much the same way as previous methods have), the focus should be placed on making better use of the rules and facilities already available, addressing the occupational failures and culture within the criminal justice system, and continuing to challenge outdated assumptions. If this proves to be insufficient, then the possibility of reform could be returned to, bearing in mind the implications for the defence.
As harrowing as the court experience can be for witnesses, the criminal process is about determining the guilt of the accused, whose future and liberty may be at stake. At the same time as battling misconceptions of how witnesses, particularly rape complainants, ought to behave, perceptions of an accused person’s guilt should not be created or reinforced prior to conviction.
Dr Abenaa Owusu-Bempah teaches Law of Evidence and Criminal Law at the University of Sussex.