In Part Two (which you can read here), we looked at Criminal Injuries Compensation Evidence (CICE), Character Evidence, Independent Legal Advice for Complainants and the Right of Appeal for complainants regarding the previous subjects mentioned.

In Part Three (which you can read here), we looked at the recommendations concerning ‘Measures to Assist with Giving Evidence’ or what was called ‘Special Measures’.

In Part Four (which you can read here), we looked at the what the Law Commission said about the role of Juries in Sexual Offence Prosecutions.

In this final part, we look at the conduct of the trial itself and whether specialist courts should be used.

Conduct of the trial in Sexual Offence cases

This is what the Law Commission wrote:
In Chapter 11, Conduct of the trial, we consider a range of measures to improve the regulation of advocates’ conduct in sexual offences cases to respond to concerns that myths and misconceptions continue to be introduced through lines of questioning and in opening and closing speeches. We recommend mandatory training for all legal practitioners on myths and misconceptions to ensure all practitioners working on sexual offences cases have appropriate training to identify myths and misconceptions and minimise the risk that they will be introduced to the jury. 

We also recommend that the Bar Standards Board considers amending its Code of Conduct to state explicitly that reliance on myths and misconceptions could result in professional misconduct consequences and that the use of generalisations based on myths and misconceptions is prohibited. Finally, we consider case management approaches to responding to the reliance on myths and misconceptions and recommend that the Judicial College considers introducing guidance for judges to assist in:
(1) identifying reliance on myths and misconceptions when assessing relevance;
(2) responding to generalisations which rely on myths or misconceptions where they are raised in advocates’ speeches.

Recommendations

R62. We recommend that the test for determining acceptable lines of questioning of a witness on subject matter which might otherwise invoke myths and misconceptions should continue to be relevance, other than for questioning about sexual behaviour, claims for criminal injuries compensation and bad character.

R 63. We recommend that legal practitioners should be required to undertake training on myths and misconceptions in order to work on sexual offences cases.

R 64. We recommend that the Bar Standards Board should consider amending its Code of Conduct and/or introducing guidance to:
(1) make explicit reference to the potential for professional misconduct consequences to arise from reliance on myths or misconceptions in sexual offences cases; and
(2) state explicitly that generalisations relying on myths or misconceptions about sexual offences in barristers’ speeches are prohibited as they constitute a breach of the duty not to mislead the court.

R 65. We recommend that the Judicial College should consider developing guidance on the following topics:
(1) identifying when lines of questioning may be irrelevant because they rely on myths or misconceptions, including consideration of the following factors:
(a) whether the line of questioning constitutes or relies upon a generalisation, unsupported by evidence;
(b) whether the line of questioning will be used to invoke an impermissible stereotype; and 
(c) whether the line of questioning is based upon a factual conclusion derived from the evidence in the case.
(2) how best to respond to generalisations which rely on myths or misconceptions where they are raised in advocates’ speeches. These generalisations include: 
(a) suggesting that complainants as a class are unreliable witnesses or that their evidence requires greater scrutiny than evidence given by other witnesses; or 
(b) suggesting that delayed reporting, in itself, makes complainants less credible.

This may depend on the length of the delay – a few months is one thing – a decade or more is something else

The Conduct of the Trial – our summary

The Law Commission, recommending such ‘training’, is suggesting nothing less than indoctrination with punishments for any who do not toe the line. It is, in fact, Orwellian Brainwashing. When the Recommendations suggest, for example, that the “Judicial College considers introducing guidance for judges…”; or that that “legal practitioners should be required to undertake training on myths and misconceptions in order to work on sexual offences cases”, they are suggesting that those professionals be indoctrinated to think what the campaigning organisations, via the Government, and the Law Commission would like them to think.
We believe that defence lawyers should be able to challenge such assumed myths, where there is reason to question their validity and where they can back up their questioning with research data. (Unless of course, the defence barristers have also been brainwashed).

One example is, of course, the knotty isue of the erroneous but claimed rarity of false allegations.
InR65, 1a – they want to prevent defence barristers from questioning which
“constitutes or relies upon a generalisation, unsupported by evidence” – which is exactly what we are against the recommendations doing.

In R65 2a, they want to prevent the suggestion that
“complainants as a class are unreliable witnesses or that their evidence requires greater scrutiny than evidence given by other witnesses” – that is okay, ONLY IF the same consideration applies to defendants.
The main problem with sexual offences prosecutions is that it is very often one person’s word against another, and true justice absolutely requires that both witnesses are accorded equal status.

In 2b, the argument is more subtle – whereas, per se, “suggesting that delayed reporting, in itself, makes complainants less credible” might be correct, in truth, it surely depends on the amount of delay; not because the fact that the complainant has not reported an assault immediately, but because the longer the duration since any event, the less reliable the memory becomes. This truism applies to anybody in any circumstances, not just reporting sexual offences.

Specialist Courts/More radical reform

This is what the Law Commission wrote:

In Chapter 12,  Specialist Courts/More radical reform, we consider but make no recommendations regarding the more radical options for reform we set out in the consultation paper. We recommend the introduction of specialist courts for serious sexual offences trials, and make recommendations about the model that would most effectively realise the benefits of doing so. We recommend a model of specialisation within existing court buildings, with improved access to measures to assist with giving evidence, additional training for court staff on trauma-informed practice, and prioritised listing. We do not recommend an entirely separate specialist court. This pragmatic position aims to operationalise the recommendations made throughout this report in an effective and holistic manner.

We consider other suggestions for more substantially altering the trial process for sexual offences prosecutions. We do not recommend screening prospective jurors for acceptance of rape myths and misconceptions,and we make no recommendation that juries should have to give reasons for their verdicts. We do not recommend the introduction of specialist examiners to conduct the questioning of complainants in sexual offences prosecutions.

We also consider calls to remove juries entirely from serious sexual offences trials, examining the concerns raised with the current position and the potential benefits of trials that would be conducted by a single judge, a panel of judges, or a panel made up of judges and lay assessors. We assess the potential benefits of such trials in the context of the aims of this project. We do not assess the use of the jury in the wider criminal justice system. We ultimately recommend the retention of juries in serious sexual offences prosecutions. We discuss the role of the jury in ensuring public confidence in the justice system, improving decision making through diversity and discussion, and enabling democratic participation in criminal justice. We do not consider that there is a sufficient evidence base to support removing juries in serious sexual offences prosecutions. We consider whether these concerns might be addressed through more limited reforms, such as a time-limited pilot scheme or voluntary election for a juryless trial by defendants. We do not recommend either approach.

Recommendations

R66. We recommend the introduction of a specialist sexual offences court within the existing court structure. We recommend the adoption of a model of specialisation within the existing court estate, combined with specialist listing practices. This should include features such as trained personnel, appropriate technology to access measures to assist with giving evidence, and specialist support for participants.

R 67. We recommend that a pilot scheme of specialist examiners should not be introduced.

R 68. We recommend that screening jurors for rape myth acceptance should not be introduced.

R 69. We do not recommend that juries be required to provide reasons for their verdicts.

R 70. We recommend that juries should be retained in serious sexual offences trials. We recommend that defendants in serious sexual offences cases should not be entitled to elect to have a juryless trial.

Specialist Courts/More radical reform – our summary

Although there are no recommendations for juror-screening or ‘specialist examiners’, it is hard to see how the recommendation of specialist courts would not delay such cases even more than they do at present – one of the biggest complaints by both complainant and defendant.

It is a pity that the Law Commission did not recommend juries giving reasons for their verdicts which would have aided the research into what really happens in such cases.

Final Conclusions on the entire Law Commission report

In all of the hullaballoo about insufficient prosecutions in Sexual Offence cases, the Law Commission has bent over backwards to accommodate governmental demands based on pressure from women’s groups to tilt the balance of justice in their favour.
One can easily say “while retaining fairness to defendants”, as the Law Coomission does, in the blurb, but there is not a lot of evidence of it, except insofar as in some cases they recommend no change.

There is supposed to be a principle of equivalence – equal forces and treatment of both sides, but these recommendations, where there are changes recommended, are all in favour of the complainant.

But the biggest problem is the blind assertion that the so-called myths claimed by the pressure groups are all valid – and there is no mechanism for challenging them.
Everyone, from barristers and judges to juries themselves are to be indoctrinated with the idea that certain beliefs are ‘myths’ – which is likely to make it exceedingly difficult for the defence to come up with any allowable defence beyond blank denial of having committed the crime at all.
Strategies that are permitted for murderers, undermining witness credibility etc., will actually be far harder for those accused of sexual offences to the extent that defending the latter becomes harder than defending the former – a potentially very dangerous state of affairs.

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Links

You will find links below to the Law Commission’s original consulation document, FACT’s response to that, the Law Commission’s Final report, and Part One of this review

• Evidence in Sexual Offence Prosecutions – Law Commission Final Report – Part One
• Evidence in Sexual Offence Prosecutions – Law Commission Final Report – Part Two
• Evidence in Sexual Offence Prosecutions – Law Commission Final Report – Part Three
• Evidence in Sexual Offence Prosecutions – Law Commission Final Report – Part Four
• Law Commission: Evidence in Sexual Offences Prosecutions – Consultation Paper and Summary
• FACT’s response to the ESOP Consultation Paper
• Law Commission: Evidence in Sexual Offences Prosecutions – Final Report