No one will dispute the merits of any objective which makes the trial process both effective and as comfortable as possible for those who are drawn into it. That is why any comment upon the recent proposals by Liz Truss the Justice Secretary to allow rape complainants to provide evidence in pre recorded interviews, including cross examination is prefaced with unanimous declarations of goodwill.
One of the reasons why the Government are rolling out the programme in the Autumn is that it will lead to quicker convictions, with trials ‘cracking’ or folding with a guilty plea in more cases where the procedure is implemented. A pilot scheme testing the reforms in three courts found that defendants pleaded guilty in 48 % of all cases where the complainant was cross examined on tape before the trial, compared to 9% in cases where they were cross examined via live video link.
Clearly, the implementation of the scheme is, to a significant extent, designed to illicit pleas of guilty after cross examination.
The future will be intriguing. Will the Sentencing Council provide a structure whereby a defendants sentence will be mitigated following a plea after cross examination? An interesting development, because if they do, why shouldn’t that apply equally to any other plea after cross examination of any complainant in crime?
We will watch in fascination as this well intentioned, but ill thought out procedure develops momentum, logically into all cases of sexual allegations if the principle is to be consistent.
You can’t help but be reminded of the relatively recent procedure, now up and running in our criminal courts that have been dubbed ‘Pressure to Plead’ hearings by criminal practitioners.
Again, the prime focus is to achieve quick pleas of guilty at the earliest possible moment in a trial process, effectively the first hearing in the Magistrates Court, with a reducing discount on the sentence for every hearing in which a plea is not tendered as the process continues.
All of this is predicated upon stacking up the conviction rate with the emphasis on the defence to make all the concessions. The mantra, endorsed by a number of the Judiciary is ‘ the defendant knows if he is guilty’.
Superficially, that sounds like a reasonable proposition, but not in the context of the criminal justice system.
Quite properly and central to our democratic process is the principle, if the State bring a case against the citizen, then the State should prove that case, so that the finder of fact is satisfied so that they are sure of any defendants guilt. There is the key word, ‘proof’.
For some time now our criminal justice system has been loosening the requirements incumbent upon the prosecution in a criminal trial, for instance, if the defence are aware of a legal flaw in a prosecution case which the Crown have not noticed, then the defence are legally obliged to draw it to their attention so that their case is a little more watertight against their client.
Bringing this analysis up to date, there are no consequent moves either governmentally or on the coal face in court by the judge’s to put any further pressure on the prosecution to comply with their disclosure obligations.
Time and time again, defence lawyers are pressed by the court and the judiciary to serve their Defence Case Statements, whether or not the Crown have complied with primary disclosure.
Take the Pressure to Plead hearings at the first court date. There is no way, under the present relaxed regime on prosecution compliance with disclosure that all relevant material will be properly served on the defence in advance of the trigger Pressure to Plead hearing to enable defence teams to professionally advise their clients. The mantra ‘he knows if he is guilty’ is being implied and at times expressly stated to overcome disclosure problems.
But the momentum is presently incessant and the recent observations by Ms Truss that her proposals will produce quick convictions betrays her measure as being at least, in part, another step in this process to speed trials.
What we are entering is a realm whereby a rape accuser is not challenged. See Goggins v UK and R v Evans & McDonald to see how risky it is. Many laws yet little justice.