Looking back on nearly 10 years of blogging I've noticed that a topic that I've written about even more than underfunding of the criminal justice system is serious sexual offences:
I keep coming back to it because it is one of the most sensitive areas of the criminal justice system and because it's an area where I believe many victims are seriously let down.
The simple part of the problem relates to funding and its lamentable shortage. In an underfunded system the following things go wrong:
i. Victims encounter inexperienced or insensitive police officers
ii. There are delays and shortcomings in forensic scientific testing
iii. There are delays and shortcomings in the consideration of mobile telephone and other digital media evidence
iv. There are delays and shortcomings in the gathering of 3rd party material (records not held by the police)
v. There are delays and shortcomings in the provision of case files to the CPS
vi. There are delays and shortcomings in the charging process
vii. There are (massive) delays in the court process
viii. There are shortcomings in trial advocacy
In a properly funded system there is a sufficient supply of SOITs (specialist sexual offence officers) so that victims don't have to interact with police officers who have no knowledge or understanding of sexual offences. Comprehensive scientific evidence is swiftly analysed. Such mobile phone analysis as is proportionate and necessary is conducted promptly with phones returned immediately to victims. 3rd party material is rapidly accessed and scrutinised. Files submitted to the CPS are ready to charge upon first submission. The CPS has enough specialist prosecutors that charging decisions can be made within days of receipt of a new file. Trials (and not video recorded cross-examination) take place within a few months at most of charge. All advocates involved in the trial are experienced specialists in serious sexual offences.
These are all issues that money can solve. But the more complicated question is what shortcomings there are or might be in a perfectly funded system. Last night I watched in the cinema a broadcast of the hit West End play 'Prima Facie' starring Jodie Comer. If I was a secondary school head teacher I would be campaigning for it to be shown in schools and indeed the production has partnered with an excellent charity Schools Consent Project which goes into schools to explain and discuss consent from a legal perspective.
You can read any review you like for a full analysis of how utterly transfixing Jodie Comer's performance is. This post is not intended as a review. Suffice it to say it is a play of real significance. It also does something I have never seen on stage or screen before which is show the backstage of cross-examination. Its opening is a riveting real time commentary on a cross-examination while it is taking place. This play really lifts the bonnet on how (some) barristers think and how they service the criminal justice system.
One recurring theme is the concept of legal truth. The truth that emerges in court and how it's got at. The adversarial process is about identifying weaknesses in the other side's evidence and exposing them. Inconsistency often lies at the heart of that process. Where inconsistency is the product of deceit or an advertent desire to mislead then that exposure serves justice. Where inconsistency is the product of trauma then it may have the opposite effect.
Anyone who has prosecuted or defended serious sexual offences for a long time will have been in at least one case where the defendant has walked out of the dock at the end of the trial leaving behind a nagging sense that they should have left court by a different exit altogether.
The burden and standard of proof really bites in sex cases. When something has occurred between a complainant and a defendant in private it does not suffice merely to believe the complainant, the jury has to be sure that their account is the accurate and truthful one. It is not difficult to see how quickly a doubt becomes a reasonable doubt in such circumstances.
For a genuine victim of a serious sexual offence that means, at best, being called mistaken about their trauma in public and, at worst, a liar. Critiquing that process, as 'Prima Facie' does so devastatingly, is a legitimate exercise. But if it is not to be a redundant exercise realistic proposals for improvement need to be made.
We could:
i. Shift the burden of proof - defendants would have to prove consent was given
ii. Shift the standard of proof - juries would need not be sure to convict, they could be satisfied on the balance of probabilities (more likely than not)
iii. Abandon the adversarial trial process entirely and replace it with an inquisitorial process.
English criminal lawyers balk (with good cause in my opinion) at all of those possibilities. I've yet to read a really constructive list of proposals as to what changes could and should properly be made that doesn't amount to a (generally unevidenced) assertion that juries are habitually resorting to myths and stereotypes or that barristers are engaging in the kind of demeaning and bullying cross-examination that was forbidden years ago.
I think there is a useful debate to be had about the propriety or benefit of an increased use of expert psychological evidence in such cases. A combination of funding constraints and the impermissibility of expert commentary on the ultimate issue (is the complainant giving a truthful account) has militated heavily against the use of such experts hitherto. But an analysis of the complainant's conduct, demeanour and responses to an incident and its aftermath seems to me to be a proper matter for expert opinion.
I hope that 'Prima Facie' will prompt such a debate that transcends simply the demand that something must be done.
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