Court Reforms and the Impact of Justice
Almost 3 years ago, in September 2016, HM Courts & Tribunal Service announced a series of reforms with the aim of transforming the justice system. The objective was to make the court process more clear-cut, accessible and efficient. £1 billion has been earmarked by the Government for the reforms, the ultimate saving for the taxpayer once the reforms are rolled out is allegedly £265m per year. The reforms are due to be implemented over six years with some changes already being actioned and some reforms being piloted.
One pilot scheme that is currently being trialled as part of the reforms is enabling rape complainants to pre-record their cross-examination evidence in advance of a trial. This pilot scheme was launched in three Crown Courts across the UK (Kingston, Leeds and Liverpool) in early June 2019.
The intention of the scheme is to provide judges with the ability to stop inappropriate cross examination of rape complainants, particularly when references are made to the complainants’ sexual history. However, the pilot has received a significant amount of debate. Disapproval is predominantly emanating from defence practitioners who warn that defendants could be prejudiced by this reform. It has been argued that this reform brings into question the right to a fair trial of those accused of rape. When the pilot scheme was first announced in March 2017, it was criticised by the then Lord Chief Justice, Lord Thomas who stated ‘all manner of issues will arise’ because of the unknown levels of uptake and logistics.
A criminal trial is a dynamic, organic and evolving process with new matters arising as the trial proceeds and as evidence is examined. Defence practitioners argue that the pre-recording of a complainants’ evidence could put the defendant at a disadvantage particularly if disclosure from the prosecution is not made within an appropriate timeframe. The issue of re-examination if additional information arises during the trial is also a concern as defence advocates can only re-examine a complainant with leave from the judge. This would also be conducted via video recording away from the court room and jury.
In addition to this, apprehensions have been raised in respect of the ability of the jury to assess the evidence of the complainant including both verbal and non-verbal ques such as body language, facial expressions, eye contact and tone of voice. This will of course depend largely on the technology available to police and the resulting quality of the recording.
Justice Secretary, Liz Truss has said that the pilot scheme will ‘will spare rape victims the trauma and inconvenience of attending court hearings’ she continued that it ‘will not reduce the right to a fair trial, but will make sure victims of these abhorrent crimes are protected and able provide their best possible evidence.’ It is of vital importance for rape complainants to be supported during the investigation and prosecution of a rape allegation. Steps to mitigate the stress and trauma of giving evidence and being cross examined in court are welcomed and are immensely important however this must be weighed against Article 6 of the European Convention on Human Rights and the defendants right to a fair trial. It will be interesting to see whether the pilot is able to demonstrate that a balance can be struck between guarding and supporting rape complainants and the defendants right to a fair trial.
Ilana is a criminal litigation lawyer specialising in white collar crime and corporate fraud matters. She has experience defending allegations of complex fraud including corruption, money laundering, tax evasion, insider dealing, fraud by abuse of position, fraudulently selling and land banking. Ilana's experience covers investigations and prosecutions brought by the Serious Fraud Office (SFO), Financial Conduct Authority (FCA) (formerly the Financial Services Authority), Crown Prosecution Service (CPS), HM Revenue and Customs (HMRC), The Royal Mail and National Trading Standards. Ilana advises professional clients in respect of regulatory proceedings including Solicitors Regulation Authority (SRA) investigations and interventions. Ilana also specialises in representing clients in Restraint and Confiscation proceedings.
0207 842 1633