Tuesday, 2 October 2018

Word for Word & Measure for Measure - More Justice in Rape Cases

Sitting down with your client after they have been convicted of a serious offence is an unenviable task familiar to all defence advocates, even the most brilliant ones.  One of the chief virtues of prosecuting is that because your client is the Queen, (notionally at least), you never have to sit down with your client.  And indeed it is surprisingly rare following an acquittal for a prosecution advocate to have to account to anybody for the result beyond filling in the rather euphemistically named adverse verdict report.

In particular it is very rarely required of the prosecution advocate that they have to sit down with the complainant and explain why the jury found the defendant not guilty.  Generally the complainant is long gone by the time a jury's verdict is returned and it is the job of the police to let them know the outcome.  The complainant, however, is (rightly) entitled to speak to the prosecution advocate on request at a formal meeting.  It is not something I have ever had to do but I know barristers who have.  They can't be easy meetings for anyone involved because the complainant wants answers and frankly the barrister is usually unable to give them.  Juries don't give reasons for not being sure of the defendant's guilty and second guessing why they weren't sure is a fool's errand.

I have prosecuted and defended serious sexual offences for a number of years now and have a fairly clear sense of the sort of features in a case that will make a conviction unlikely.  What is much less clear to me is what makes a strong case.  I am, obviously, not talking about cases in which the defendant has denied intercourse took place and his semen is found on swabs or cases in which (unusually) an assault is caught on camera or is witnessed.

I mean a case in which a complainant comes forward and says they were raped in their home or the defendant's home or a hotel room and the defendant says sex took place but it was consensual.  What then makes for a strong case?  Is it time candidly to admit that if those are the facts that such a prosecution is intrinsically weak, uncorroborated as it is by any evidence emanating from a person without a vested interest in a conviction or a person without a vested interest in an acquittal?

The Guardian in the last week or so has shone a powerful spotlight on rape prosecutions in England and the now familiar cry has gone up that there are not enough convictions.  Unenthusiastic as I am about statistics generally I positively recoil from them in the context of sexual offences.  It is correct that you can count the number of allegations made to the police, you can count the number of charges approved by the Crown Prosecution Service, you can count the number of guilty pleas, you can count the number of jury acquittals and convictions.

However claims about the number of wrongful acquittals are just that.  The whole point of the trial process is to test whether a jury of 12 are sure of a defendant's guilt.  If juries are not sure they are supposed to acquit and, however imperfectly, that signifies that justice has been served.  That is understandably cold comfort for the complainant who has endured the stress and indignity of giving evidence under oath in public.  But it's the best process we have devised so far.

The general tenor of The Guardian's reporting is that the system is broken and something must be done to boost the conviction rate.  Rash is the commentator, however, who is prepared to say publicly what the 'correct' conviction rate should be.  A clear theme is that juries are still falling prey to the myths and stereotypes that cause them not to believe the accounts of complainants.  That opinion leads swiftly to the conclusion that trying rape cases should be taken away from the prejudiced public and placed in the hands of objective trained professionals.  Alternatively the burden of proof could be placed on the defendant to prove that consent was given.  Lastly the standard of proof could be reduced from sure of guilt to probably did it.

Juries are people and people get things wrong.  Objective trained professionals are also people and they also get things wrong.  Furthermore it is possible to be a trained professional and yet be utterly unobjective.  The difference is that in a jury of 12 bias and prejudice should be flushed out within group discussion.  I am also not persuaded that with the current burden and standard of proof that removing rape cases from juries would necessarily result in more convictions.

Of course the burden of proof could be reversed so that defendants would have to prove their innocence or the standard of proof diluted so the prosecution only had to make juries a bit suspicious.  The inescapable result of either of those changes would be the conviction of the innocent.  There are some for whom that is a price worth paying to get more rapists convicted.  I am not so sure.  A criminal justice system that is cavalier about whether those that are being brought to justice are in fact criminals is a system that works against social cohesion not in its favour.

I do however have a proposal for an improvement.  It is not a proposal designed to ensure more convictions, it is however a proposal to ensure that trials are fairer and more just.  Like many I have watched from afar Brett Kavanaugh's appearance before the Senate Judiciary Committee.  In this piece in Current Affairs the author has undertaken close textual analysis of the transcript of the proceeding to venture an opinion about the veracity of the nominee.  You may or may not disagree with his conclusions.

What I will say is that examining the words actually used by a witness enables a tribunal considering them to consider what was actually said.  That may not sound especially insightful or surprising but did you know that juries retire to deliberate without any transcripts of the evidence that they have heard? Instead barristers try to keep a note of the questions that they have asked and the answers that they have received.  I don't know if you've ever tried to pat your head and rub your stomach at the same time but it is child's play compared to trying to cross-examine a defendant in a rape case while keeping a verbatim note of his answers.

Of course the poor old/young judge is the one charged with keeping a note for reminding the jury of the evidence in the case.  Some judges can, surprisingly, almost type at verbatim speed which leads to a very (very) long summing up.  Other judges note only that evidence they regard as being important which can lead to a very (very) general review of the evidence.

Frankly both these approaches are absurd.  It is the 21st century and technology is supposed to be the salvation of us all but most especially within the criminal justice system.  How is it possible that juries do not retire with verbatim transcripts of the words actually used by witnesses in the witness  box in answer to the words actually used by the barristers questioning them?  If I am assessing somebody's account I want to read exactly the words they used because equivocation and deceit can turn on a comma.

Better tools lead to better outcomes and whether that leads to more convictions only time will tell.