Counsel of Despair

 I recently tweeted the following observation:

It’s important to say that the message that there’s no point in reporting sexual offences to the police is a counsel of despair. There are many police officers, lawyers and judges that make it their life’s work to take such allegations seriously and have them tried properly.

And it would be fair to say that, to some readers at least, it was neither an important nor welcome message.

A very niche benefit of Twitter to criminal barristers is that it's a reminder that when you address a jury what you think you're saying, or what you want to say, is not necessarily what the jury are hearing you say. Because juries don't provide feedback other than through their verdicts this is not a reminder often given in court.

For the avoidance of doubt here is a list of things I did not mean in that tweet:

1. That all victims of sexual offences must report to the police.

2. That if victims of sexual offences do not report to the police then they are not victims.

3. That if victims of sexual offences report to the police they are guaranteed to see their attacker convicted.

4. That all police officers are perfect. Or lawyers. Or judges.

5. That I do not think there are very serious problems with the criminal justice system, particularly in relation to sexual offences.

6. That I am oblivious to a prevailing, possibly near universal, view that reporting to the police is a futile act.

When the perception is that justice is very difficult or impossible to achieve it is entirely understandable why a victim of a sexual offence might prefer to heal privately in their own way and in their own time.

The sometimes re-traumatising effect of the criminal justice process is something that is frequently remarked upon and written about. Contending with a forensic challenge to your integrity and credibility when you have been a victim of rape must be, at the very least, a galling experience, if not profoundly upsetting and destabilising.

Acknowledging that reality while reconciling it with the need to maintain a rigorous and fair trial process is something that causes any lawyer of good conscience a great deal of concern and anxiety. An inescapable if harsh fact is that the criminal justice process is not therapy and its direct purpose is not healing. Its purpose is to correctly identify wrongdoers, hold them to account and punish them when required. Another equally difficult concept is that a not guilty verdict or even a decision not to charge does not mean that an offence did not happen, it means that there was insufficient evidence to prove that it did. Obviously when the main evidence comes from and is the person making the complaint that will feel like the most personal of judgements. But a system in which the making of an allegation of itself ensured a conviction would be a dangerous thing to have.

I have not experienced the criminal justice process as a victim of a sexual offence but I have witnessed those that have on scores of occasions. People often ask me how does it feel to defend someone I know is guilty. What I have never been asked is how it feels to sit with a distressed victim in a dilapidated room at court in the aftermath of the acquittal of a man who hours before I had suggested to a jury was a provable rapist. I can tell you how it feels. It feels really bad.

I know what is wrong with the criminal justice process and to some extent I know what is required to fix it. Money plays a very large part in that. But that's not the only part. Where Twitter and other platforms are useful is that you hear tales and narratives that rarely make it into law schools and court rooms. Social media gives victims a voice. I am always listening because without listening you don't hear and if you don't hear you don't learn.

But like a beleaguered doctor hearing about troubling symptoms I would never counsel not getting them looked at. The criminal justice process is not what it should be, too many victims are let down by the police and the courts. But disengagement from the system does not provide alternative recourse. If we don't use the system and make it work there is no other. There are people that care about it and the victims that have no choice but to use it and I should know because I see them every day.

Not every rape that gets reported to the police results in a conviction but no convictions result from rapes that are not reported.