Closing the door on rape cases - Is excluding the public the answer?

This article reports that prosecutors are to start asking complainants in rape trials if giving evidence in a closed court is something that would help them give evidence. It is reported that the purpose of this is to drive up conviction rates. 

As all lawyers know and, I hope much of the public too, there are a raft of special measures designed to try and make giving evidence easier for victims of crime. Advocates can remove court dress, the witness can give evidence behind a screen or via a live link from another room in the court building or another building all together.

Recently there has been a national rollout of something that has been piloted for some time at a few courts and that is pre-recorded cross-examination. That means that many victims of sexual offences will be video interviewed by the police and then undergo video cross-examination many months before their case goes before a jury.

If pre-recorded cross-examination becomes the default the days of rape victims giving evidence in a court room in front of a jury may be over. There is perhaps some cause for content there but there is also cause for concern. All barristers that specialise in sexual offences know that the immediacy of victim testimony from the witness box will always be more effective than watching a recording on a screen.

Something that I still do not know the answer to, and I practise in these cases, is how judges are supposed to deal with notes from the jury containing questions that they want put to the victim if the victim is not participating in the trial process as a live witness. The whole point of pre-recorded cross-examination is to minimise distress to victims caused by delay awaiting the start of the trial. This is rendered completely ineffective if the victim has to deal with a jury question that arises on the hoof once the trial is underway.

In any event shutting the court room door to the public seems, in light of what serious sexual offences within the criminal justice system really require, a negligible benefit to victims coming at the expense of open justice. Indeed in my experience the public gallery is usually deserted with many of the catastrophic problems in the criminal justice system going completely unnoticed precisely because the public are not seeing what is happening and how it's getting worse.

That said I do not doubt that the court being a public arena is, and naturally is, a significant worry to many victims. That is what the range of special measures routinely deployed are for. It may be that there are some victims for whom giving evidence by live link does not suffice to allay their anxieties knowing that family, friends, supporters or just random members of the public are watching the evidence in the public gallery. That being so cavilling at a reminder that judges have powers to address those concerns may seem retrograde but I am concerned that this is a sticking plaster when the patient is suffering mortal wounds. 

The fact of the matter is that sexual offences are difficult, time consuming to investigate and deliver high emotional and life consequences. They require and deserve the best police, the best prosecutors and the best advocates.

Being best requires training, skill and experience. The combination of those three factors creates expertise. What rape cases absolutely do not need are amateurs, however enthusiastic, and newcomers, however willing. Over the last 10 years police numbers have been devastated and the CPS budget cut to the bone and this has coincided with rape cases becoming evidentially vastly more complicated. If you lose one good officer or one good lawyer the team takes a hit but there comes a point when too many are lost that institutional knowledge and awareness goes too and that is not retrieved by one good hire or a recruitment drive.

Shutting the door is not the answer, opening the purse strings is.