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REDRESSING THE BALANCE
Cross-Examination in Rape and Sexual Offence Trials
A Pre-Legislative Consultation Document
PRINCIPLES
- It is a fundamental tenet of the Scottish criminal justice system that a
criminal trial must be conducted fairly. The question of whether or not a
trial is conducted fairly has, however, traditionally been answered only in
relation to whether it is fair to the accused. Since the whole court process
is directed towards answering the question of whether or not the accused is
guilty of the crime alleged, this is hardly surprising. There have, however,
in recent times been increasing calls for attention to be paid to whether
the court process is also fair to those other than the accused who are required
to take part in it, namely those called as witnesses, and in particular those
who are the victims of the crime alleged. In the Scottish system witnesses
may seem essentially passive participants in the process, with no control
over what happens during any part of it. They may feel that in general their
views and feelings are not taken account of. Witnesses who are also victims
of the crime alleged may find the court process almost as distressing and
disempowering as the original crime, resulting in what is sometimes referred
to as the "secondary victimisation" of victims.
- If the criminal justice system is organised and managed in such a way that
victims of crime feel "re-victimised" by it, this is not only wrong
in itself, but self-defeating. If the victims of crime do not have confidence
that the system will accord them at least the same degree of respect, dignity,
consideration and fair treatment as it accords to accused persons, they will
not only be unwilling, but may in the worst cases be unable, to take part
in it.
- The basic objective of a criminal trial, ie the determination of whether
the accused is guilty or not of the offence charged, can only be achieved
by the use of evidence. It follows that it is essential, if the interests
of justice are to be met, that witnesses are willing and able to come to court
to give evidence, and are not discouraged from doing so by fears about the
ordeal they may undergo in the witness box. When they do come to court, they
must be able to give their evidence fully and to the best of their ability.
It is also, however, in the interests of justice that all evidence should
be properly tested as to whether it is reliable and credible, and that the
accused has an opportunity to pursue all legitimate lines of defence.
- It is equally important to recognise that there are some limitations to
the extent to which the criminal justice process can, by itself, meet all
the needs of victims. There will be places where the needs of the victim and
the needs of the system are entirely consistent, and places where they are
not. For example, the need of a victim of crime to be believed and to have
their experience "validated" can come into direct conflict with
the need of the criminal justice system to ensure that the truth of all allegations
of crime is tested. There may even be times when, in order to achieve the
fundamental aim of a fair trial, the victim of the crime alleged will have
to experience a certain amount of discomfort and distress. This may be unavoidable
and it would be a disservice to victims to suggest otherwise.
- What can be done however is to minimise that discomfort and distress and
ensure that appropriate support is available to victims both within, and from
outwith, the system, to help them deal with both the consequences of the crime
and any distress caused by the process leading up to the trial, the trial
itself, and thereafter. This paper concerns itself with ways in which changes
to the law of evidence might contribute to an improvement in the way in which
certain witnesses are treated in court. It should be seen as only one element
of what we intend to be a more holistic approach to the way victims of crime
are treated in our society.
- In formulating proposals for change in this area of law, we have tried to
test them against the principles which the criminal justice system holds as
essential for a fair trial for the accused, and also against certain principles
we consider to be essential to respect the human and moral rights of witnesses.
Any proposals put forward for consideration by the Scottish Parliament must
be compatible with the European Convention on Human Rights, and the need to
ensure such compatibility will be an essential element of the final decision
as to what legislative measures are proposed.
- As regards the accused, the principles set out below are intended to reflect
the rights under Article 6 of the European Convention on Human Rights
which are considered to be particularly relevant in the context of the issues
this paper discusses. They are:
- The accused is innocent until proven guilty;
- The burden of proving the facts alleged is on the Crown;
- The facts alleged must be proved beyond reasonable doubt and this must be
done within the rules of evidence as to relevancy, admissibility and sufficiency;
- The accused has the right to silence;
- The accused has the right to prepare and present his defence, with legal
assistance provided free when the interests of justice so require;
- The accused is entitled to examine or have examined witnesses against him
and call witnesses in his defence;
- The accused has the right to defend himself in person or through legal representation
of his own choosing.
- As regards witnesses, the legal system of Scotland has, at least up to now,
been less specific in according rights. Even the European Convention does
not confer any rights on witnesses as such. Witnesses do, however, have a
legal entitlement to the protections afforded to everyone by the Convention,
including, for example, the right under Article 8 to respect for their
private and family life. In addition, they may be said to have certain moral
rights arising from an appreciation of how a decent society should treat those
of its members who have been the victims of crime, or have witnessed crimes,
and who are fulfilling a public duty in appearing as witnesses. The principles
we have formulated are:-
- A witness is entitled to be treated with respect and dignity throughout
the process;
- A witness is entitled to security and protection from harassment and intimidation
throughout the process;
- A witness is entitled to have his or her privacy respected insofar as this
is consistent with the interests of justice;
- A witness is entitled to receive such support and assistance as he or she
needs to enable him or her to give evidence fully, with confidence, and to
the best of his or her ability;
- A witness who is on oath is entitled to be presumed in the first instance
to be telling the truth.
- These two sets of principles should, we believe, be seen as complementary
rather than contradictory, although at various points in the criminal justice
system there may be a tension between them. Nowhere is this more likely to
happen than in the cross-examination of the complainer in a rape or sexual
offence case. It ought however, in our view, to be possible to achieve a better
balance than currently exists between respecting the rights of the accused
and respecting the rights of the complainer. The proposals discussed in this
paper are aimed at achieving such a balance.
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