Abstract
So far, I have argued that rape trials hold significant barriers to survivor justice because of difficult practicalities and a cultural scaffolding that reinforces the use of rape myths, sexual history evidence, and wider societal stereotypes to undermine survivors’ voices. This chapter will expand on the evidence of deep-rooted barriers to survivor consideration, first by outlining the use of manipulative cross-examination techniques and then by unpacking the competing justice interests discussed by judges and barristers. Rhetoric about ‘rebalancing the system’ has emerged in the last decade, with increasing recognition that victims of crime are voters who can be won over with promises of improved rights in the criminal justice system (Duggan & Heap, 2013). Despite this, vehement opposition from legal professionals occurs each time an increase in survivors’ rights is suggested (for example, Naseem Bajwa & Niculiu’s 2016, response to the idea of sexual history evidence reform). Until now, little has been known about how these competing considerations are actually discussed at trial. Court observations shed light on this, demonstrating that many legal professionals are sensitive to survivors’ well-being, but a blinkered interpretation of the right to a fair trial can limit the extent to which this sensitivity is acted upon. This arrives at the heart of the difficulty with rape trials in England and Wales: In order to protect the accused’s right to a fair trial, it is assumed that survivors must suffer. While cross-examination is mostly restricted to adversarial jurisdictions, the other tensions are present internationally because the same right to fair trial is balanced against the same needs of survivors. Without a significant reframing of the rights of the accused and other witnesses, then, the criminal justice system will remain a hostile place for survivors of rape. Ultimately, this means that criminal justice cannot be the sole arena for survivor justice, as survivors’ needs will never be the central priority.
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Notes
- 1.
I do not argue that these barristers were doing anything wrong by defending a client that they had implied was guilty, but rather that they were doing the right thing in the context of their role and that this is why it is important to look beyond criminal justice to meet survivors’ needs. However, as will be clear in the rest of this chapter, I also argue that sometimes the barristers’ interpretation of their role in protecting the right to a fair trial was over-zealous and must now incorporate greater consideration of the human rights of other witnesses.
- 2.
The judges in R v Farooqi [2013] were also frustrated that cross-examination had become a series of comments posed as questions, when comment should be left to closing speeches (Henderson, 2016).
- 3.
While pre-recorded cross-examination may help here, the same questioning process will take place and Baverstock (2016) found that many survivors were unaware they were being questioned ahead of trial rather than at trial itself. This suggests that pre-recorded examination will have limited impact on cross-examination style.
- 4.
Matoesian (1993) also noted the gendered nature of interruption and control of the talking parameters, because men were more likely to interrupt successfully than women.
- 5.
The defence case in this trial had featured text messages between the survivor and accused, who were long-term partners, where they appeared to be trying to make their failing relationship work.
- 6.
Due to a 12–15 year time lapse between the rape and reporting to police , the survivor could only estimate the date of the alleged attack to an accuracy of between 3 and 5 years.
- 7.
Lord Judge (2013, cited in Henderson, 2016) later argued that these principles should be applied to all adult witnesses, and several appeal decisions suggest that this is indeed being done.
- 8.
This lateness appears to be due to another judge having ruled that some of these posts could be included and once more highlights the broad interpretation of sexual history evidence rules (see Chap. 4).
- 9.
The right to a fair trial includes a timely hearing and so involve a sense of efficiency .
- 10.
Once a witness is being examined, they are not allowed contact with the barrister who called them so as to avoid the evidence being contaminated or changed. This can be overruled in certain situations and several defence barristers did end up speaking to the accused mid-examination.
- 11.
The Juries Act 1974 states that the minimum size of a jury is nine lay people, and so it is legal to dismiss up to three jurors.
- 12.
I argue that the same piece of evidence could be interpreted as both relevant and irrelevant, so ‘truth’-seeking does not relate to finding truth itself, but rather the discourses about ‘truth’ used in trial.
- 13.
It is good that the accused’s right to a fair trial is the central concern for legal professionals and this research is not critiquing their consideration in itself, only the interpretation of fair trial as a necessarily favourable one.
- 14.
This includes all evidence gathered by the prosecution but which will not be used in their arguments, so that the accused has “adequate time and facilities as to prepare for his defence” (Human Rights Act 1998 Article 6b ).
- 15.
Two of the women had learning difficulties, one of whom needed an intermediary, while the third woman had substance abuse problems. Two of the women also had very significant mental health problems.
- 16.
After being found guilty of raping two of the three women in this trial, the men pleaded guilty to grooming.
- 17.
Although the evidential presumptions introduced by the Sexual Offences Act 2003 require the accused to present evidence of their innocence in certain circumstances, Bogan (2009) noted that trials remain fair so long as the accused can refute evidential presumptions and are aware of the right to appeal.
- 18.
While it is not known what sentence the survivor wanted for the accused, it seems contrary to her interests for the courts to wilfully disregard evidence of chronic domestic abuse or to imply that she was partly culpable for the rape because she ended their relationship.
- 19.
About 75–80 per cent certainty is more in line with the lower standard of proof called ‘preponderance of the evidence’, which is used in some civil cases.
- 20.
The European Convention on Human Rights designated rights as limited, qualified, or absolute. Limited rights, for example the right to freedom, can be overruled relatively easily (such as if someone commits a crime and is imprisoned as punishment). Absolute rights, on the other hand, are presented as non-negotiable and must be upheld at all times. Qualified rights form the middle ground between these approaches (Gibson et al., 2002).
- 21.
Having said this, Hoyano (2014) noted that Article 6 in the Human Rights Act does not have specifically stated limitations and so it is difficult to understand how fair trial is qualified.
- 22.
One example is MC v Bulgaria [2003] (No. 39272/98, ECHR , December 2003) which although not related to cross-examination , is noteworthy because it ruled that rape does not need to include force or physical resistance. This means that States have a positive obligation under Articles 3 and 8 of the European Convention on Human Rights to effectively investigate and punish all forms of rape.
- 23.
Although Brienen and Hoegen (2000) found that survivors still regularly perceived cross-examination as harsh in France, Belgium, Germany, and Italy.
- 24.
These four countries are Sweden, Denmark, Portugal, and Norway.
- 25.
Although this would arguably still benefit all survivors because of the increased awareness of their rights, this justice gap would be unacceptable.
- 26.
Although this has mostly been confused in public debate. Brexit involves withdrawing from the Charter of Fundamental Rights and the European Court of Justice, but not the ECHR or the ECtHR .
- 27.
However, the 2015 Conservative Manifesto did suggest that it would replace the Human Rights Act with a British Bill of Rights. It seems unlikely that such a Bill of Rights would greatly differ on the issue of fair trial and inhuman treatment.
References
Bar Standards Board. (2005). Guidance on witness preparation. Retrieved from https://www.barstandardsboard.org.uk/code-guidance/guidance-on-witness-preparation/
Bar Standards Board. (2017). Bar Standards Board handbook: Including 9th edition of the code of conduct. London: Bar Standards Board.
Barrett, D. (2013, February 16). Frances Andrade: New scandal as police deny counselling to other rape victims. Telegraph Online. Retrieved from www.telegraph.co.uk/news/uknews/crime/9875034/Frances-Andrade-new-scandal-as-police-deny-counselling-to-other-rape-victims.html
Baverstock, J. (2016). Process evaluation of pre-recorded cross-examination scheme (Section 28). London: Ministry of Justice.
Bentley, D., & Thomas, R. (2009). Fair trial. In M. Colvin & J. Cooper (Eds.), Human rights in the investigation and prosecution of crime (pp. 252–283). Oxford: Oxford University Press.
Bogan, P. (2009). Self-incrimination, the right to silence, and the reverse burden of proof. In M. Colvin & J. Cooper (Eds.), Human rights in the investigation and prosecution of crime (pp. 347–375). Oxford: Oxford University Press.
Boyle, C. (2009). Reasonable doubt in credibility contests: Sexual assault and sexual equality. International Journal of Evidence & Proof, 13(4), 269–292.
Brereton, D. (1997). How different are rape trials? A comparison of the cross-examination of complainants in rape and assault trials. British Journal of Criminology, 37(2), 242–261.
Brienen, M. E. I., & Hoegen, E. H. (2000). Victims of crime in 22 European jurisdictions: The implementation of recommendation 85 (11) of the Council of Europe on the position of the victim in the framework of criminal law and procedure. Tilburg: Wolf Legal Productions.
Burman, M. (2009). Evidencing sexual assault: Women in the witness box. The Journal of Community and Criminal Justice, 56(4), 379–398.
Burton, M., Evans, R., & Sanders, A. (2007). Vulnerable and intimidated witnesses and the adversarial process in England and Wales. International Journal of Evidence & Proof, 11(1), 1–23.
Cahill, M. T. (2005). Three perspectives on criminal justice. Journal of Law and Policy, 13, 181–188.
Chalmers, J. (2014). Independent legal representation for complainers in sexual offence cases. In J. Chalmers, F. Leverick, & A. Shaw (Eds.), Post-corroboration safeguards review: Report of the academic expert group (pp. 185–189). Edinburgh: Scottish Government.
Council of Europe. (2012). Convention on preventing and combating violence against women and domestic violence. Strasbourg: Council of Europe.
Council of Europe. (2015). Equal access to justice in the case-law on violence against women before the European Court of Human Rights. Strasbourg: Council of Europe.
Criminal Justice Act 2003. London: HM Stationary Office.
Crown Prosecution Service. (2016). Speaking to witnesses at court: CPS guidance. London: Crown Prosecution Service.
Daly, K. (2016). Reconceptualising sexual victimisation and justice. In I. Vanfraechem, A. Pemberton, & F. Mukwiza Ndahinda (Eds.), Justice for victims: Perspectives on rights, transition and reconciliation (pp. 378–395). London: Routledge.
Davies, M., Croall, H., & Tyrer, J. (2015). Criminal justice (5th ed.). Harlow: Pearson.
Dickman, B., & Roux, A. (2005). Complainants with learning disabilities in sexual abuse cases: A 10-year review of a psycho-legal project in Cape Town, South Africa. British Journal of Learning Disabilities, 33(3), 138–144.
Dinos, S., Burrowes, N., Hammond, K., & Cunliffe, C. (2015). A systematic review of juries’ assessment of rape victims: Do rape myths impact on juror decision-making? International Journal of Law, Crime & Justice, 43(1), 36–49.
Doak, J. (2008). Victims’ rights, human rights and criminal justice: Reconceiving the role of third parties. Oxford: Hart Publishing.
Dublin Rape Crisis Centre. (1998). The legal process and victims of rape. Dublin: Dublin Rape Crisis Centre.
Duggan, M., & Heap, V. (2013). Victims as vote-winners? The antisocial behaviour/hate crime nexus. Criminal Justice Matters, 94(1), 24–25.
Ellison, L. (2000). Rape and the adversarial culture of the courtroom. In M. Childs & L. Ellison (Eds.), Feminist perspectives on evidence (pp. 39–57). London: Cavendish.
Ellison, L. (2001). The adversarial process & the vulnerable witness. Oxford: Oxford University Press.
Ellison, L. (2007). Witness preparation and the prosecution of rape. Legal Studies, 27(2), 171–187.
Ellison, L., & Munro, V. (2010). Getting to (not) guilty: Examining jurors’ deliberative processes in and beyond the context of a mock rape trial. Legal Studies, 30(1), 74–97.
European Parliament. (2012). Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA. Brussels: European Parliament.
Garvin, M., & Beloof, D. E. (2015). Crime victim agency: Independent lawyers’ for sexual assault victims. Ohio State Journal of Criminal Law, 13, 67–88.
Gerry, A. (2009). Victims of crime and the criminal justice system. In M. Colvin & J. Cooper (Eds.), Human rights in the investigation and prosecution of crime (pp. 447–468). Oxford: Oxford University Press.
Gibson, B., Cavadino, P., & Faulkner, D. (2002). Introduction to the criminal justice process (2nd ed.). Winchester: Waterside Press.
Greer, S. (2017). Implications of Brexit for the European Convention on Human Rights. E-International Relations. Retrieved from http://www.e-ir.info/2017/07/27/implications-of-brexit-for-the-european-convention-on-human-rights/
Hamer, D. (2010). Probabilistic standards of proof, their complements and the errors that are expected to flow from them. University of New England Law Journal, 1(1), 71–107.
The Havens. (2010). Wake up to rape: Research summary report. London: The Havens.
Henderson, E. (2016). Best evidence or best interests? What does the case law say about the function of criminal cross-examination. International Journal of Evidence & Proof, 20(3), 83–199.
Hlavka, H. R. (2014). Normalizing sexual violence: Young women account for harassment and abuse. Gender & Society, 28(3), 337–358.
HM Crown Prosecution Service Inspectorate [HMCPSI]. (2013). Disclosure of medical records and counselling notes: A review of CPS compliance with rules and guidance in relation to disclosure of complainants’ medical records and counselling notes in rape and sexual offence cases. London: HMCPSI.
HM Government. (2015). Sexual violence against children and vulnerable people: Progress report. London: HM Government.
HM Government. (2017). Press release: New measures to allow ratification of Istanbul Convention. Retrieved from https://www.gov.uk/government/news/new-measures-to-allow-ratification-of-istanbul-convention
Hoyano, L. (2014). What is balanced on the scales of justice? In search of the essence of the right to a fair trial. Criminal Law Review, 4(1), 4–29.
Hoyano, L. (2015). Reforming the adversarial trial for vulnerable witnesses and defendants. Criminal Law Review, 2, 107–129.
Hucklesby, A. (1997). Court culture: An explanation of variations in the use of bail by magistrates. Howard Journal of Criminal Justice, 36(2), 129–144.
Human Rights Act 1998. London: HM Stationary Office.
Juries Act 1974. London: HM Stationary Office.
Kagehiro, D. K. (1990). Defining the standard of proof in jury instructions. Psychological Science, 1(3), 194–200.
Kebbell, M., O’Kelly, C., & Gilchrist, E. (2007). Rape victims’ experiences of giving evidence in English courts: A survey. Psychiatry, Psychology & Law, 14(1), 111–119.
Kelly, L., & Lovett, J. (2009). Different systems, similar outcomes? Tracking attrition in reported rape cases in eleven countries. London: European Centre on Violence Against Women.
Khan, J. (2013, February 13). Justice for Frances Andrade: A success or a failure? Huffington Post Online. Retrieved from www.huffingtonpost.co.uk/javed-khan/frances-andrade-justice_b_2678753.html
Kirchengast, T. (2010). The integration of victim lawyers into the adversarial criminal trial. Australian and New Zealand Critical Criminology Conference Proceedings 2010, 1st–2nd July 2010, Sydney Institute of Criminology, University of Sydney, Australia.
Kirchengast, T. (2016). Enforceable rights for victims of crime in adversarial justice. Journal of Criminology, 3, 11–42.
Konradi, A. (2007). Taking the stand. Wesport: Praeger Publishers.
Lando, H. (2009). Prevention of crime and the optimal standard of proof in criminal law. Review of Law and Economics, 5(1), 33–52.
Larcombe, W., Fileborn, B., Powell, A., Hanley, N., & Henry, N. (2016). ‘I think it’s rape and I think he would be found not guilty’: Focus group perceptions of (un)reasonable belief in consent in rape law. Social & Legal Studies, 25(5), 611–629.
Lees, S. (1997). Carnal knowledge: Rape on trial. London: Women’s Press.
Leveson, B. (2015). Review of efficiency in criminal proceedings. London: Judiciary of England and Wales.
Loewy, A. H. (2010). Taking reasonable doubt seriously. Chicago-Kent Law Review, 85(1), 63–75.
Londono, P. (2007). Positive obligations, criminal procedure and rape cases. European Human Rights Law Review, 2, 158–171.
Matoesian, G. M. (1993). Reproducing rape: Domination through talk in the courtroom. Cambridge: Polity Press.
MC v Bulgaria No. 39272/98, ECHR, December 2003.
McGlynn, C., Downes, J., & Westmarland, N. (2017). Seeking justice for survivors of sexual violence: Recognition, voices and consequences. In M. Keenan & E. Zinsstag (Eds.), Sexual violence and restorative justice: Legal, social and therapeutic dimensions (pp. 179–191). London: Routledge.
McWilliams, M., & Ní Aoláin, F. (2016). Moving slowly to regulate and recognise: Human rights meets intimate partner sexual violence. In K. Yllö & M. G. Torres (Eds.), Marital rape: Consent, marriage and social change in global context. Oxford: Oxford University Press.
Ministry of Justice. (2011). Achieving best evidence in criminal proceedings: Guidance on interviewing victims and witnesses, and guidance on using special measures. London: Ministry of Justice.
Ministry of Justice. (2015). Code of practice for victims of crime. London: Ministry of Justice.
Murphy, W. J. (2001). The victim advocacy and research group: Serving a growing need to provide rape victims with personal legal representation to protect privacy rights and to fight gender bias in the criminal justice system. Journal of Social Distress and the Homeless, 11(1), 123–138.
Naseem Bajwa, A., & Niculiu, E. (2016). Sexual history evidence: Fair game? Counsel Magazine. Retrieved from https://www.counselmagazine.co.uk/articles/sexual-history-evidence-fair-game
Northern Ireland Law Commission. (2011). Vulnerable witnesses in civil proceedings. Belfast: Northern Ireland Law Commission.
Powles, S. (2009). Evidence. In M. Colvin & J. Cooper (Eds.), Human rights in the investigation and prosecution of crime (pp. 311–346). Oxford: Oxford University Press.
R v Barker [2010] EWCA Crim 4.
Raitt, F. (2010). Independent legal representation for complainants in rape trials. In C. McGlynn & V. Munro (Eds.), Rethinking rape law: International and comparative perspectives (pp. 67–280). Abingdon: Routledge.
Raitt, F. (2011). Independent legal representation: Delivering justice or just raising expectations? Fifth North East Conference on Sexual Violence, 28 November 2011, University of Durham Queens Campus, Durham.
Rock, P. (1993). The social world of an English Crown Court. Oxford: Clarendon Press.
Sanders, A., & Jones, I. (2007). The victim in court. In S. Walklate (Ed.), Handbook of victims and victimology (pp. 282–308). Cullompton: Willan.
Sexual Offences Act 2003. London: HM Stationery Office.
Smith, A. (2016). Representing rapists: The cruelty of cross-examination and other challenges for a feminist criminal defense lawyer. American Criminal Law Review, 53, 255–310.
Stanko, B., & Williams, E. (2009). Reviewing rape and rape allegations in London: What are the vulnerabilities of the victims who report to the police? In M. A. H. Horvath & J. Brown (Eds.), Rape: Challenging contemporary thinking (pp. 207–225). Cullompton: Willan Publishing.
Stern, V. (2010). The Stern review: A report by Baroness Stern CBE of an independent review into how rape complaints are handled by public authorities in England and Wales. London: Home Office.
Taslitz, A. (1999). Rape and the culture of the courtroom. New York: New York University Press.
Temkin, J. (2000). Prosecuting and defending rape: Perspectives from the bar. Journal of Law and Society, 27(2), 219–248.
Travis, A. (2013, July 8). Theresa May criticises human rights convention after Abu Qatada affair. Guardian Online. Retrieved from http://www.theguardian.com/world/2013/jul/08/theresa-may-human-rights-abu-qatada
UN General Assembly. (1985). Declaration of basic principles of justice for victims of crime and abuse of power: Resolution (A/RES/40/34). New York: United Nations.
Wemmers, J. (2009). Where do they belong? Giving victims a place in the criminal justice process. Criminal Law Reform, 20(4), 395–416.
Westera, N. J., Kebbell, M. R., & Milne, B. (2016). Want a better criminal justice response to rape? Improve police interviews with complainants and suspects. Violence Against Women, 22(14), 1748–1768.
Westmarland, N. (2005). Rape and human rights: A feminist perspective. Thesis PhD, Department of Social Policy and Social Work, University of York, York.
Wheatcroft, J., & Ellison, L. (2012). Evidence in court: Witness preparation and cross-examination style effects on adult witness accuracy. Behavioural Sciences & the Law, 30(6), 821–840.
Wilson, L. (2005). Independent legal representation for victims of sexual assault: A model for delivery of legal services. Windsor Yearbook of Access to Justice, 23(2), 249–312.
Wolhuter, L. (2010). German and Swedish procedures as models for the empowerment of racial minority women in rape trials. International Journal of Law, Crime and Justice, 38(1), 1–16.
Wright, D., & Hall, M. (2007). How a ‘reasonable doubt’ instruction affects decisions of guilt. Basic and Applied Social Psychology, 29(1), 91–98.
Y v Slovenia No. 41107/10, May 2015.
Zydervelt, S., Zajac, R., Kaladelfos, A., & Westera, N. (2016). Lawyers’ strategies for cross-examining rape complainants: Have we moved beyond the 1950s? British Journal of Criminology, 57(3), 551–569.
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Smith, O. (2018). Cross-examination, Fair Trial, and Survivor Justice in Rape. In: Rape Trials in England and Wales. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-75674-5_6
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