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REDRESSING THE BALANCE
Cross-Examination in Rape and Sexual Offence Trials
A Pre-Legislative Consultation Document

CROSS-EXAMINATION BY THE ACCUSED IN PERSON

The Current Law

23. As a general rule, any individual is entitled to conduct his own defence. The court may advise or indeed encourage him to obtain legal assistance, but if he chooses not to do so, he is entitled to conduct the case for himself in the same way as his defence lawyer would do, including calling his own witnesses and cross-examining those called by the prosecution.
24. There are only two situations currently where, if the accused is unrepresented, the court may appoint a lawyer to represent his interests. These are contained in sections 56(3) and section 92(2) of the Criminal Procedure (Scotland) Act 1995. The first is where there is an examination of facts following a finding that the accused is insane in bar of trial. If the accused is not legally represented the court will appoint someone to represent his interests in the examination of facts. The second is where an accused has so misconducted himself that, in the view of the court, a proper trial cannot take place unless he is removed from the court. The court must appoint a lawyer to represent his interests if he is not already represented.

Criticisms of the Current Law

25. There is a risk that, as the law stands, an accused may abuse his right to conduct his own defence. The purpose of cross-examination is to test the reliability and credibility of the witness’s evidence, not to humiliate the witness or afford personal satisfaction to the questioner. As things stand however, an accused could try to use his right to cross-examine the complainer as a way of obtaining some perverse pleasure in humiliating and controlling her, forcing her to recount to his face the full details of what happened to the complainer, in effect forcing her to relive the experience. There have been disturbing cases in England and Wales and in Scotland. Although the number of such cases is very small, the danger of equally or more serious cases occurring in the future cannot be ruled out. There is also a fear that increased publicity about the issue may lead to an increased risk of "copycat" cases occurring.
26. There are, of course, existing protections for witnesses. As confirmed in the case of Black -v- Ruxton¹, there is a duty on the court at common law to intervene to protect a witness from harassment and intimidation. In one of the recent cases in Scotland, where an accused conducted his own defence against a charge of shameless indecency, there was significant and sustained intervention by the prosecutor and the judge. There is however a concern in some quarters that this power may not always be exercised vigorously enough to protect witnesses in sexual offence cases in particular. The court may be reluctant to intervene too severely in a case where an accused person is conducting his own defence. Because an accused is not normally legally qualified or trained in criminal procedure, the court will not wish to be seen to be unduly restrictive to an unrepresented accused, since to do so might be seen as harsh and oppressive and give rise potentially to grounds for appeal against a conviction.
27. The characterisation of an accused as "abusing" (as opposed to simply "exercising") his right to cross-examine in such cases is of course based on an assumption that he is both guilty of the offence charged and that his motives are evil. These are not valid assumptions in law, since the accused is in law presumed to be innocent until proven guilty. The motives behind his actions can never be known with any certainty. If it were postulated instead that an accused person was innocent, it must follow that the witness is not being made to relive an experience for which the accused himself is responsible. Where the issue is one of consent, the accused will have been involved in the experience, but he will be arguing that the complainer was not subjected to any violence or intimidation and therefore cannot be said to be being made to relive a distressing experience.
28. The reality however is that some accused are in fact guilty and some are innocent. There is therefore in fact a danger that an accused who has committed the crime libelled, albeit that this has not been determined in law, may be abusing his rights by subjecting the complainer to sustained and intensive cross-examination. It is at the reduction of such a factual risk that the proposition that in some circumstances the law should prevent an accused from representing himself is aimed. The basic aim of such a proposition is to protect witnesses from the risk of being subjected to humiliating and distressing questioning which has no legitimate purpose.
29. It is, however, not always possible to identify what the purpose of a line of questioning is, and those whose motives are doubtful will be likely to try to conceal them. It may therefore be helpful to examine what the possible motives might be for an accused person wishing to dispense with legal representation and conduct the case himself. This may help to determine whether there is any principle at stake which is so fundamental that it requires that an accused person should never be deprived of the right to conduct his defence personally. It may also help to identify what measures need to be taken to ensure that in limiting the right of an accused to represent himself, the possibility of such limitation giving rise to any unfairness to the accused is minimised. Some possible motives are as follows:-

• He wishes to confront the complainer personally and make her feel guilty about the accusation which has been made so that she will admit the falseness of the allegation. This is understandable, but it is not clear that an accused would be able to achieve this aim more effectively than an experienced and eloquent lawyer, if the latter is properly informed by the accused of all the facts and circumstances.
• He does not trust lawyers, and considers that he has been let down before in his experience with the legal system. Such an attitude is certainly possible, if misguided. If the accused is required by law to be represented for any part of the case, this objection can be met by ensuring high levels of competence and experience in any legal representative appointed.
• He may wish to save himself the expense of instructing legal representation. This would be a valid objection if true, but can be dealt with by ensuring that legal representation is available free when it is a requirement.
• He simply wishes to assert his freedom and his right to autonomy and choice. Again this is a perfectly valid motive, but we do not consider this right to be so paramount that it should always take precedence over all other considerations, such as ensuring that witnesses are treated with respect and not exposed to the risk of being humiliated and abused.
• He wishes to harass, intimidate and humiliate the witness as a form of control and exercise of power, from which he obtains some personal pleasure or satisfaction, or by which he hopes the witness will be too fearful to stand up to his questioning. This is unreasonable and offensive and is simply not a legitimate motive.
• Another possible reason for the accused representing himself may be, not that he particularly wishes to do so, but that he wishes to put forward a line of defence which no lawyer is prepared to pursue on his behalf. He may, for example, propose to attack the character of the complainer without any foundation. We would suggest that it is in exactly such a case that the need to protect the complainer from personal cross-examination by the accused is most likely to arise.

30. Clearly this cannot be a comprehensive list of all the possible motives and reasons there may be for an accused person defending himself in person, but it is intended to illustrate the kinds of objection which might be raised to the proposition that in certain circumstances, an accused person will be required by law to be legally represented. We fully accept that in order to achieve the aim of protecting all witnesses from the risk of abuse it may be necessary to restrict the rights of some individuals who may have valid motives for wishing to conduct their defence personally. We also accept that the risk of such an abuse occurring within our criminal justice system at present is not high given the relatively small number of cases. It is however not negligible, and the effects on the witness, in the event of such an abuse, are likely to be devastating.
31. The question to be answered is whether the cost, in terms of the potential restriction of the freedom of action of some accused persons, is sufficiently outweighed by the benefit which is sought to be achieved, ie the avoidance of the risk of these freedoms being abused, resulting in humiliation and distress to witnesses. In the Executive’s view the cost is outweighed by the benefit.

Objectives

32. The basic objective is accordingly that an accused person, in certain categories of offences, will no longer be able to cross-examine the complainer personally. We accept that this may be a restriction of his rights, but consider the restriction justified. We also aim to ensure that the accused will have the fullest possible opportunity for all reasonable lines of defence to be presented to the court and for witnesses to be examined and cross-examined on his behalf. He will also have the same right as at present to legal assistance of his own choosing if he wishes to be represented. We now turn to looking in detail at various options for achieving these objectives.

 

Options for Change

Option One

Requiring the accused to be represented for cross-examination of the complainer

33. This would involve the accused being allowed to conduct his defence personally for all other parts of the trial, but being required to have a lawyer for the specific purpose of cross-examining a complainer. The accused would be told by the court that he would not be permitted to cross-examine the complainer himself. He would be invited to appoint a lawyer to do so, failing which the court, if it considered that it was necessary in the interests of justice for the complainer to be cross-examined on behalf of the accused, would appoint a lawyer to do so.
34. This is the solution which has been adopted in England under the Youth Justice and Criminal Evidence Act 1999. In evaluating this option, it is essential to recognise that there are very significant differences between the ways in which trials are conducted in England and Scotland. In England witnesses give attested statements before the trial, which are available to the defence, and there is generally much fuller disclosure of evidence before the trial, by both sides. This is quite different from the situation in Scotland. Here each side is responsible for the preparation of its own case, taking its own statements from witnesses, which are not disclosed to the other side. Evidence then emerges during the course of the trial; there are no opening statements setting out the facts which the prosecution will seek to prove and the defences which the accused’s lawyer will put forward.
35. In addition it is necessary for the defence to prepare the foundations of their case by questioning prosecution witnesses, and, where appropriate, putting forward alternative arguments to be founded on by the accused. To found subsequent lines of argument, the defence must, during cross-examination, put its alternative position to the prosecution witness. This is also in fairness to those witnesses, who must be given the opportunity to accept or reject propositions put by the defence. To do this effectively, the defence must be conversant with and involved in the whole case. In England it may be possible for a lawyer, who is "parachuted in" part way through the trial, to prepare relatively quickly by reading the attested witness statements and other items of evidence which have already been disclosed. This would be more difficult in Scotland in most instances, although there may be parts of the evidence which have been agreed in advance between the prosecution and the defence, and in some cases, where the accused has previously been represented, there may be precognition statements available. It would however generally be more difficult for a lawyer coming into a case part way through the trial to prepare, in a Scottish case, than would seem to be the case in England.
36. The order of the witnesses being called may have some significance. In many instances the complainer in a sexual offence trial is called as the first witness. This could mean that the lawyer would not so much be being dropped into the middle of the trial, as being there at the beginning and then handing over to the accused after the complainer has been examined. A general rule could be made that in a case where an accused was not represented, the complainer will always be called first. There will however be cases where the Crown will not wish to call the complainer as the first witness.
37. To assist the jury’s understanding of a case it can be preferable to lead evidence in an order which reflects the chronology of events. If there are several complainers featuring in several charges, it may be desirable to lead the evidence supporting each charge in a sequential manner, following on from each complainer. In a case where there is an essential corroborating witness upon which the question of sufficiency hinges, the Crown may wish to lead that witness first to assess whether there will be a case to answer, before putting the complainer through the ordeal of giving evidence. If a complainer’s support person, or the carer/guardian of a child complainer, is a witness in their own right, it is usually desirable to take their evidence first so that they can be present in court, in support, when the complainer gives evidence. There may also be cases where the complainer is called first, but recalled later.
38. These difficulties could probably be dealt with by having a lawyer "shadowing" the case from the start so that he was given access to any available papers and sat in during the course of the trial until the point when he was required to conduct the cross-examination. If there was any possibility of the complainer being recalled, he would have to remain available until the end of the trial. An alternative might be to have a contemporaneous transcript of the evidence made available.
39. There are some other difficulties with this option. During the part of the trial in which the accused has been represented by a lawyer, the lawyer may have done some groundwork, such as asking questions which would be the basis of further examination of other witnesses later on in the trial, which the accused may not be competent to follow up. If the complainer is not the first witness and the accused has been conducting his own defence up to that point, he may not have been able to do the preparatory work of laying foundations in evidence which a lawyer would undertake to allow a competent line of questioning to be followed. In summary, the accused may make a mess of work which the lawyer has already done, or alternatively may so mishandle the case at the beginning that the lawyer is unable to repair the damage. It could therefore be that, overall, the likelihood of the accused’s case being fully and properly presented to the court would be decreased. Since however this would be the result of the accused’s own choice to dispense with legal representation, we do not think that this would be likely to render such a trial unfair in ECHR terms.
40. The main advantage of this option is that it only restricts the accused’s rights to a small extent, and allows him to conduct the rest of his defence himself. It would be the minimum required to achieve the basic objective of preventing the risk of abuse of victim witnesses and we think it likely that it would be compatible with the European Convention. It can be seen however that it does throw up some significant, although not insurmountable, practical problems.

 

Option Two

The court to have discretion to appoint legal representative for accused in particular circumstances

41. This option has some attractions. It ought to mean, if the types of cases and circumstances in which the discretion can be applied are defined clearly, that a lawyer is only imposed on the accused where it is appropriate and necessary. It leaves the judge fully in control of the proceedings and gives him or her flexibility to make a decision appropriate to the individual case. It would be hoped that the knowledge that the judge has the power to require the accused to be represented may encourage him to act properly if he does choose to conduct his own defence. It might also discourage those situations which occur at the moment, where an accused who decides to represent himself frequently does so only at the last moment, dispensing with the services of his lawyer on the eve, or even the morning, of the trial.
42. There are however disadvantages. Since it relies on judicial discretion, there may be fears that some judges will be reluctant to use their discretion fully, or quickly enough to prevent some initial harm to the witness. The witness could be exposed to potential harassment if the accused is allowed to begin the cross-examination and only stopped when he begins to step out of line. This could also cause disruption in the trial and might prolong the ordeal of the witness, who would have to wait while the court is adjourned to allow a lawyer to be appointed and to familiarise himself with the background to the case. Delay would be inevitable. The witness might then have to repeat evidence already given, causing her further distress and embarrassment. In addition, if complainers know that they may have to face their alleged attacker, and cannot be reassured in advance that this will not happen, they may be discouraged from coming forward.
43. It may be argued that leaving the question to the discretion of the trial judge might lead to inconsistency between cases and perceived unfairness in comparing one case with another. At worst, if judges were to fail to exercise their discretion, the legislation might prove to be ineffective. We think however that this would be unlikely to happen. Judges will be fully aware of the purpose of the legislation, of their duty to act compatibly with the European Convention, and of the expectation that witnesses will be protected as necessary.
44. These objections could also perhaps be answered by requiring the decision as to whether, and the extent to which, the accused will be allowed to cross-examine personally, to be made right at the beginning of the trial, or at a pre-trial stage. This kind of discretionary decision could however only be made at an early stage if the decision is to be based on information about the nature of the charges and the vulnerability of the witness rather than on an assessment of how the accused is likely to behave during the cross-examination, since the judge will not have any information about how the accused will conduct himself during the trial. The Crown would be able to give the court such information as they have about the vulnerability of witnesses.
45. We do not think that there would be any difficulty with this option as regards compatibility with the European Convention in relation to the rights of the accused. Its flexibility as regards being able to take account of the individual circumstances of each case fits well with the approach generally taken by the European Court of Human Rights. It may not, however, completely guarantee that complainers are always protected from the risk of abusive cross-examination by the accused.

Option Three

Requiring the accused to be legally represented throughout the trial

46. This option does have some significant advantages in practical terms, as compared with the others. It would ensure that the case for the defence can be properly prepared and consistently and competently presented and that if a lawyer has to be appointed by the court, he can exercise his usual independent judgement as to how he handles the case, without being restricted by anything the accused has done, or not done. It would mean that the trial looked "normal", especially to a jury, in terms of current practice, and would ensure that there was seen to be an even contest between the Crown and the accused, with the accused being neither advantaged, nor disadvantaged, by acting without a lawyer. It would mean that no particular witness was singled out as being different from any other in terms of preference or disadvantage. It would also ensure, if the lawyer was appointed at an early enough stage of the legal proceedings, that the lawyer would be able to carry out any precognitions of witnesses for the defence. This is a matter which we discuss in more detail later.
47. The lawyer may of course be in some difficulty in preparing the case if the accused refuses to co-operate, but this is no more the case here than in either of the other options. Ensuring that a lawyer is appointed at an early stage ought to give the lawyer so appointed more opportunity to meet with the accused and persuade him of the benefits of co-operating in the preparation of his defence.
48. The main difficulty with this option is that it is less likely than options 1 or 2 to be compatible with the European Convention on Human Rights. Restricting the right of the accused to conduct his own defence may constitute an infringement of his rights under Article 6. The case of Croissant -v- Germany² does give support to the proposition that the accused’s right under Article 6.3(c) "to defend himself in person or through legal assistance of his own choosing" is not an absolute right. While restriction of the right may be justified, as here, by the need to protect the rights of another person (ie the complainer), it must only be to the minimum extent necessary. Requiring the accused to be legally represented throughout the trial, while it might be argued to be in his best interests, in that it should ensure that all reasonable lines of defence are properly presented to the court, is more than is required to achieve the basic aim of protecting the witness. It is, therefore, less likely than Options 1 or 2 to be compatible with the Convention.

Option 4

Questioning of the complainer to be done by the Judge

49. A fourth option, rather than having the court appoint a lawyer for the accused, would be for the accused to be permitted to represent himself throughout the trial, but when the stage of cross-examination of the complainer is reached, for questions to be put to the complainer by the judge rather than by the accused directly. The judge would in effect be acting as a "filter" or screen between the accused and the complainer. Such a process would involve the judge ascertaining from the accused what he wants to ask and the judge then formulating and putting the questions to the complainer. The judge would be able to limit the extent of any questioning if he felt that the accused wished to overstep the mark and was seeking to ask about matters which were irrelevant or unnecessarily intrusive into the witness’s privacy.
50. To some extent this, or something very similar, can happen already in cases where the accused is unrepresented. An accused who is not used to speaking in public and may be inarticulate will be unlikely to be very clear about what he is trying to ask. The judge may try to help the accused clarify what he is trying to say and in effect help to formulate the questions for him.
51. This option would have the advantage of lessening potential disruptions in the trial, since there would be no need to have adjournments to allow the accused to instruct a lawyer, or to allow a court-appointed lawyer to prepare the defence case. It would, however, be likely to look slightly artificial, especially in cases where the accused is articulate and intelligent and perfectly well able to formulate his own questions. The judge would then, in effect, be acting simply as a mouthpiece for the accused.
52. Nor does this option sit comfortably in the Scottish adversarial system. It could undermine the position of the judge as an independent and impartial "referee" between the accused and the prosecution. It might make it difficult for the judge to be seen to be maintaining a detached and objective view and being fair to both sides. There may therefore be some doubt as to whether it is ECHR compatible. It might also create greater opportunities for appeals. For example an accused might argue that the judge had misunderstood or misinterpreted what he wanted to ask, with the result that his defence was not properly put to the court. While a judge may sometimes, of necessity, have to assist an accused to present his defence, if all other avenues for ensuring that the accused has proper legal representation have been exhausted, it will always be a difficult and delicate task, and we doubt that it is one which judges would willingly undertake to the extent which would be required were it to be made standard procedure in all sexual offence cases. For all these reasons we do not think this a particularly attractive option.

Which Option?

53. None of the options is ideal. This is not surprising given the very difficult nature of the issue. The Executive is inclined towards Options 1 or 3, with the preferred option in policy terms being Option 3. The potential ECHR difficulties of this option must however be recognised. Views of respondents on all 4 options are welcomed.

Summary of Options One: requiring the accused to be represented only for cross-examination of the complainer; Two: giving the court discretion to appoint a legal representative for an accused who is unrepresented; Three: requiring the accused to be legally represented throughout the trial; Four: requiring questions which an unrepresented accused wishes to ask of the complainer to be put via the judge.

Question 1 Which of the above options do you prefer and why?

Scope of the Rule Against Self-representation

54. Changing the law so that in certain cases an accused will not be permitted to conduct his defence personally, or will be limited in the extent to which he can do so, creates an exception to the general rule that an accused is entitled to conduct his own defence. The question then arises as to how far, and to what types of case, the exception extends. We are convinced that saving witnesses from the risk of humiliation and abuse during cross-examination in a trial for a sexual offence is a legitimate aim. It can also be pointed out that such humiliation and abuse could occur in cases other than sexual ones. Examples which spring to mind immediately are cases of a child who may have been physically (but not sexually) abused or neglected, an elderly person subjected to a vicious mugging, or an individual made the object of racial abuse or other hate crime.
55. We fully accept that in such cases there is also the possibility of an accused person seeking to misuse his right to cross-examine. We consider however that this is more likely to occur in sexual cases. The very personal and intimate nature of the acts which would be alleged in a sexual case are those which most lend themselves to questions designed simply to humiliate a witness. Sexual cases are also those in which an accused who is motivated to derive personal pleasure from another’s distress is most likely to find it. Furthermore, because in many cases of rape or other sexual assault there is a pre-existing relationship between the accused and the complainer (a relationship which may itself be abusive) we think there is simply more chance of an accused who wishes to do so using that relationship to undermine a victim witness’s confidence and in effect further abuse that witness.
56. We therefore consider that there is ample justification for the rule against personal representation applying to all sexual cases. We do not, however, consider that the categories to which it might extend are closed, and we shall, in a consultation paper to be issued early next year, be considering whether and to what extent it might apply in other types of cases, or be available as a protection to certain types of witness.
57. As far as this paper is concerned, however, we propose that the rule should apply to all sexual cases. Section 274 of the Criminal Procedure (Scotland) Act 1995 contains a list of cases where the type of question that can be put to a witness is limited. We would propose using this list as the basis for the rule against personal cross-examination. It covers virtually all offences of a sexual nature and would mean that the rule applied whether the case was tried under solemn or summary procedure.
58. There may, however, be some charges, such as breach of the peace, which may have a sexual element which is not immediately obvious from its title. It should, however, be clear from the actual wording of the complaint. We think in principle that all charges with a sexual element should be covered, but welcome the views of respondents.

Question 2 (a) Do you agree that the rule against personal cross-examination should cover all cases referred to in section 274 of the Criminal Procedure (Scotland) Act 1995? (b) Do you think it should be wider than that? (c) How would cases to be covered then be identified?

 

Giving Notice to the Accused

59. Our policy is to restrict the accused’s right to a lawyer of his own choosing to the minimum extent necessary in the context of securing the objective of preventing any person accused of a sexual offence from personally cross-examining the complainer. The accused will have exactly the same right to legal assistance of his own choosing as he does at the moment, if he is willing to exercise that choice. It is only where he fails to do so that the court may make the choice for him.
60. In order to maximise the accused’s opportunity to exercise such choice and to encourage him to do so, we propose that, in rape and all other sexual offence cases, he is given notice at the earliest possible moment that he will not be permitted to cross-examine the complainer personally.
61. In cases where the accused has been arrested and held in custody, this could happen on the first occasion that the accused appears in court after being charged. He could be informed that, given the nature of the charge made against him, he will not be permitted personally to cross-examine the complainer, and that it is therefore in his interests to be legally represented throughout the pre-trial and trial process. He would then be invited to nominate a lawyer. In cases where the accused has not been in custody, such a notice could be included with the other papers sent to the accused by the Crown when he is served with the complaint or indictment.
62. The court could, at the same time, set a date for a further hearing at which the accused would be required to appear personally along with, or give details of, his legal representative. Failing such appearance, or if the accused intimates that he does not wish to appoint his own lawyer, the court would consider whether to appoint a lawyer for the accused. If it did decide to do so, that lawyer would then contact the accused and seek instructions to prepare the defence. At that point, some accused might agree that the lawyer could conduct the whole case, but at the minimum, the court-appointed lawyer would conduct the cross-examination of the complainer.
63. The procedural stages would need to be set sufficiently far in advance of the trial for any lawyer appointed by the court to have adequate time to contact the accused and try to prepare the defence. This may require some re-structuring of current practice.

Question 3 (a) Do you agree that the accused should be told at the first appearance in court, or when the complaint/indictment is served, that he will not be permitted personally to cross-examine the complainer and that it would therefore be in his own interests for him to appoint a lawyer to represent him? (b) Do you agree with the procedure suggested? (c) Do you have any views about the timescales which should be set?

64. There is already statutory provision for mandatory intermediate or first diets to deal with preliminary matters in all summary cases and in solemn cases in the Sheriff Court. There is also provision for preliminary diets in the High Court. There should therefore not be any insuperable difficulty, from a procedural point of view, in the court ascertaining whether, and if necessary ensuring that, the accused has a lawyer prior to the trial.

65. Things may of course not go according to plan. The accused may accept the invitation of the court to appoint a legal representative himself, but may then sack him very shortly before the trial or even during the course of the trial. If such a situation arises at the moment, the court would normally adjourn to allow the accused sufficient time to instruct a new lawyer and for that lawyer to familiarise himself with the case. Should the accused not wish an adjournment and instead wish to continue to present his case himself, he would at present be permitted to do so. It is possible that an accused person might, under the new arrangements, appoint his own lawyer but then wait until the last moment before the trial, or during the trial, to dismiss him, knowing that this would cause disruption and that there would have to be delay while someone else was found to represent him, or at least to cross-examine the complainer on his behalf. To discourage the use of such tactics, we propose that the court should, in rape and sexual offence cases, have an automatic power to appoint a lawyer for any accused who dismisses his lawyer during the trial or within 14 days before the date on which it is scheduled to start. Any lawyer dismissed within that period of 14 days should have a duty to advise the court so that a hearing could be arranged when the matter would be dealt with. We would not however intend that such an additional power should restrict the power of the court to allow an adjournment to give the accused a chance to find an alternative lawyer of his own choosing, if the court considers the interests of justice require it.

Question 4 Do you agree that in sexual offence cases the court should have an automatic power to appoint a lawyer for an accused who dismisses his lawyer during the trial or within a 14-day period before it?

Responsibility of Legal Representative

66. Any provision whereby an accused person is required to be legally represented, even for only a small part of the trial, will only work if a lawyer is willing and able to represent him. The involvement and co-operation of the legal profession is therefore an essential element to the success of any new provisions.
67. It is likely that if the prohibition against the accused cross-examining the complainer is made clear enough to him at a sufficiently early stage of the proceedings, the great majority of accused persons will take the opportunity afforded to them to obtain legal representation at that stage, rather than wait for the court to appoint a lawyer for them, or risk not being permitted to have the complainer cross-examined at all. There will, however, be a few cases where the accused will not do so and the court will appoint a lawyer. If the accused does not wish to be legally represented, the relationship between the accused and his appointed legal representative will not have the easiest of beginnings. The accused may prove recalcitrant and be unwilling to accept advice from or give any instructions to the court-appointed lawyer. In such cases the lawyer will undoubtedly have a difficult task in trying to represent the interests of the accused properly and cross-examine the complainer in such a way that the accused's defence is presented to the court. The lawyer may fear being accused of providing inadequate representation, leading not only to the possibility of the accused seeking to appeal against any conviction, but also possibly leading to damage to the lawyer’s professional reputation.
68. The equivalent English legislation, section 38 of the Youth Justice and Criminal Evidence Act 1999, contains a provision to the effect that a lawyer appointed by the court has no responsibility to the accused. The explanatory notes to that Act say that this is because the court-appointed representative has not been instructed by the defendant and so cannot be responsible to him. We would intend that the court-appointed lawyer should try to obtain instructions from the accused, with a view possibly to conducting the whole of the defence case, if the accused could be persuaded to agree. But clearly any responsibility the lawyer has to the accused must be severely limited in cases where the accused has not co-operated with the lawyer or has even tried to obstruct or mislead him.

Question 5 To what, if any, extent should a lawyer appointed by the court have responsibility to the accused?

 

69. Some of these difficulties might be dealt with by a Code of Practice being developed to cover these specific situations. Such a Code of Practice could be given a statutory basis, or could be developed by the legal professions as an extension of the present systems of professional self-regulation. Different Codes may be required for solicitors and advocates.
70. The object of such a Code or Codes would be both to protect the interests of the accused by setting out standards and procedures which the lawyer needs to meet and follow, and to protect the interests of the lawyer, by ensuring that if he follows those standards and procedures he has done all that is required of him. It might include such matters as requiring the lawyer to consider if there was any possibility of the accused suffering from a mental disorder, and a duty to seek medical opinion if he was in any doubt. In addition, by adopting measures such as the detailed recording of advice given to the accused, and noting of the basis on which decisions are taken and courses of action pursued by the lawyer, together with reporting to and supervision by the court of the relationship between the accused and the lawyer as the case progresses, it should be possible to reduce considerably the likelihood of a successful challenge to any conviction on the grounds of inadequate representation.

Question 6 (a) Do you agree that a Code of Practice should be developed for court-appointed lawyers? (b) Should it have a statutory basis?

 

71. The case of Anderson -v- HMA³ dealt with the issue of defective representation of an accused and the extent to which the accused’s solicitor or counsel could be held responsible for inadequate representation. In that case it was held that there could be a miscarriage of justice where the conduct of the defence counsel or solicitor was such that the accused’s defence was not presented to the court because he was deprived of the opportunity to present it, or because his counsel or solicitor acted contrary to his instructions, or because of other conduct which had the effect that, because the accused’s defence was not presented to the court, a fair trial was denied to him. We do not consider that the likelihood of an "Anderson-type" appeal should be any greater in a case where the solicitor or advocate is appointed by the court than where he is appointed by the accused himself. In our view the judgement in that case is consistent with our general approach, confirming as it does the duty of both solicitor and advocate to act independently according to their own discretion and professional judgement as to what it is proper for them to do in the accused’s best interests.
72. Our proposals in no sense deprive the accused of the right to have his defence presented to the court. He will have every opportunity to instruct a lawyer in order that this is achieved. If he fails to take such opportunities that is entirely his responsibility, and we do not see how he can, on that ground alone, claim to have been the victim of a miscarriage of justice.
73. It is, however, appreciated that there may be cases where the lawyer will find it extremely difficult to present any substantive defence, if the accused simply refuses to communicate with him. Even in such cases, it should be possible for the lawyer to test the sufficiency and reliability of the evidence adduced by the Crown. A partial analogy could be drawn with the situation where a solicitor or counsel is appointed by the court to represent the interests of an accused person at an examination of facts, the accused having been found insane in bar of trial.
74. The Thomson Committee, which recommended introducing the examination of facts procedure,⁴ stated that in such a case it would be a matter for the discretion of the defence counsel as to what, if any, evidence should be led for the defence, and the line of cross-examination of Crown witnesses. In general the defence counsel or solicitor would have a duty to test the Crown case, according to the information at their disposal, but would not be entitled to make any concession with regard to evidence. We would consider that such an approach would also be appropriate in a case where, under the new procedure we propose, an accused simply refused to give any information or instructions at all to his court-appointed representative. We accept that the situations are not absolutely identical, since even if the judge is satisfied, following an examination of facts, that the accused did the act or omission constituting the offence, there will be no conviction. In practice, however, the potential consequences for the accused - in an extreme case he could then be detained for the rest of his life - may be just as serious.

 

Legal Aid

75. We accept the principle that if the State imposes the requirement of legal representation on an individual who does not wish to have it, the State must also be prepared to pay for the cost of such representation. Legal aid will therefore need to be granted automatically in those cases where the court appoints a lawyer to act in the interests of the accused, if it has not been already granted. An amendment to the Legal Aid (Scotland) Act 1986 to allow the accused’s financial circumstances to be disregarded in such cases is likely to be required.
76. There is a possibility that an accused person in a sexual offence case, who knows that he would not qualify for legal aid on financial grounds, may say that he wishes to conduct his own defence, knowing that he will not be permitted to do so and that therefore the court will appoint a lawyer and award legal aid. In effect he would be using the new provisions as a means of ensuring he had legal aid to which he would not otherwise be entitled. However, by adopting this course the accused would be depriving himself of the right to have the lawyer of his choice, and this may act as a disincentive. Legal aid is currently refused in only about 13% of all summary cases and in a small proportion of solemn cases. We consider that, although the risk of an accused person taking advantage of the system is there, it is not unduly burdensome. The objective of ensuring that witnesses are protected from potential abuse is more important and justifies any additional financial burden in the small number of cases concerned.

 

Identifying a Lawyer for the Court to Appoint

77. There are a number of ways in which this could be done. The existing duty solicitor scheme could be used, perhaps in an expanded form. Lists of solicitors willing to be appointed by the court could be maintained by clerks of court, or by local faculties. Panels of names could be maintained by the Scottish Legal Aid Board, and a reference made by the court to them to appoint someone from the panel as required. The role of the Public Defence Solicitors Office could be expanded. In High Court cases, it will also be necessary to ensure the availability of an advocate or solicitor advocate to represent the accused. Views are welcomed from respondents on these and other possible options and as to the mechanics of maintaining up to date lists or registers, and of ensuring that the range and quality of representation available is high enough.

 

Question 7 (a) How should lawyers to be appointed by the court be identified? (b) What measures can be taken to ensure a sufficient pool of suitably qualified and experienced lawyers?

 

Precognition

78. The system of criminal justice in Scotland is based on each side preparing its own case. This means that in the process of preparing the defence, each side will interview potential witnesses and obtain statements of the evidence they are likely to give at the trial. This is called precognition. Once a prosecution has commenced, at common law there is a duty on a citizen to give such information to the Crown or the defence as he or she may be asked to give. In addition the prosecution has a statutory right to require witnesses to attend for precognition, and there are penalties for non-attendance and failure to co-operate. Crown precognitions are carried out by the Procurator Fiscal service. The defence do not have a right to require witnesses to attend for precognition, but would normally simply ask a witness to provide a statement on a voluntary basis. Should a witness refuse to do so, the defence can apply to the court for a precognition to be taken on oath before a Sheriff.
79. In some cases it may be to a witness’s advantage to give a precognition, since if the defence lawyer takes the view, following the precognition, that the Crown’s case is so strong that a conviction is likely, he may try to persuade his client to plead guilty. If the accused pleads guilty, and so spares the witness the ordeal of giving evidence, he may hope the Court will take this into account in passing sentence.
80. This situation could of course only apply if the accused is legally represented, and the precognition is taken by that legal representative or someone acting on his behalf. At present there is nothing to prevent an accused person who does not have a lawyer seeking to obtain a precognition from a witness himself. Fears have been expressed that the kind of accused who is motivated to misuse his current right to cross-examine personally may also seek to misuse his right to take precognitions in the same way.
81. To avoid this happening a witness could, at present, simply refuse to give a precognition to an accused personally. Where a witness had reason to believe that an accused person might use precognition as an opportunity to intimidate or harass a witness, it would seem perfectly reasonable for the witness simply to refuse to co-operate, so that the accused would then, if he wished to pursue the matter, require to apply for precognition on oath. We accept, however, that a witness may not feel confident enough to do this and that it would be helpful to have a general rule prohibiting an accused person in a sexual offence case from taking a precognition personally. Even in the case of a precognition on oath, it is theoretically possible that an unrepresented accused could seek to abuse the opportunity to question the witness in the same way as at a trial. We therefore propose an amendment to the law to the effect that, notwithstanding any rule of law to the contrary, any right of the defence to precognose witnesses who are alleged victims of the crimes charged can, in sexual offence cases, only be exercised by a lawyer or properly instructed precognition⁵ agent acting on behalf of such a lawyer, and not by the accused person personally.
82. The standard bail conditions could also be amended. They already have a condition to the effect that the accused should not interfere with witnesses but it is not clear whether this would be sufficient to prevent the accused approaching a witness personally with a view to a precognition. The conduct of an accused person in such a case could perhaps cause the witness distress and embarrassment without being sufficiently serious to count as "interference". An additional standard bail condition could be introduced to prohibit precognitions being carried out personally by the accused in sexual offence cases. Those accused who are not on bail would be covered by the provisions already mentioned.

 

Question 8 Do you agree with the proposals: (a) to prohibit an accused in a sexual offence case from taking a precognition personally; and (b) to amend the standard bail conditions to include such a prohibition?

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