Anyone involved in the criminal justice system will agree that one of the most challenging tasks an advocate can ever face is to prosecute or defend an individual or group accused of sexual offences.
The nature of sexual exploitation is such that complainants in these cases are often inherently vulnerable, whether by virtue of age, disability or personal circumstances – and that in turn makes the task of cross-examining them a delicate one, with potentially catastrophic implications if handled insensitively.
There can hardly be a more vivid example of the ordeals such vulnerable witnesses often face in court than the trial of nine men on a range of sexual offences against seven girls in Shropshire that took place in 2011.
Taking the stand
The defendants were accused of the systematic and organised sexual abuse of girls in Telford; each man had his own legal team. While some of the defence advocates conducted themselves in an exemplary manner, the conduct of others caused an outcry amongst both the profession and public alike.
One teenage victim was cross-examined for 12 days during which she was asked whether she “repented of her sins”. Another was required to read, line by line, from a statement she had made in unconnected proceedings which described sexual abuse against her by a family member. Eventually, the judge stopped the case from proceeding.
When the case was retried in Worcester before a different judge, he remarked that “the way things went last time is just so wrong that we should all be very ashamed that our justice system allowed it”.
There are a number of reasons that trials involving sexual offences require expertise to conduct. The laws of procedure and evidence, which are designed to protect witnesses from the ordeals of giving evidence, are highly complex; case papers are often voluminous and may encompass decades of incidents; witnesses are regularly asked to describe the most degrading of experiences in front of complete strangers and in alien surroundings.
The problem is that the aspects of the criminal justice system that generate these problems are also at the heart of a democratic society.
The burden of proof in any trial must rest on the prosecution, which has to prove its case beyond reasonable doubt; the defendant must have a fair trial, which includes the accused’s right to challenge the case against them.
This inevitably means that there will come a point where the defendant’s advocate will have to question the accuser. Alternative versions of events will have to be explored and anything which might undermine the veracity of the witness’s account needs to be established.
But despite the inevitability of this difficult interaction, it would surely surprise many to learn that lawyers require no additional training to defend in these sorts of cases beyond that they received when qualifying at the beginning of their career.
Work in progress
Despite the specialist training and supervision that other professionals require to work with vulnerable individuals, defence advocates require none. Even when the poor handling of a case results in judicial censure and regulatory admonishment, there is nothing to stop that advocate continuing to represent defendants in other cases.
Only suspension or disqualification will prevent them – and that is reserved for the most serious of cases of misconduct.
In response to cases such as the Telford trial, the justice secretary has announced that it will become compulsory for publicly funded advocates who appear in cases involving sexual offences to be trained to deal with vulnerable witnesses properly.
Some steps have already been taken to rein in prosecutors: since 2007, the Crown Prosecution Service has only allowed those advocates who have demonstrated the right skills and who have undertaken accredited training to prosecute sexual offences cases.
A working group set up by the Advocacy Training Council (the body who ensure standards of advocacy amongst barristers are maintained) produced a lengthy report entitled Raising the Bar, which identified an inconsistent standard of knowledge and skills among advocates working in the area and recommended the introduction of a “ticketing” or accreditation system to clarify which advocates are suitably trained for this kind of work.
The group also produced an online resource, The Advocate’s Gateway, which provides comprehensive guidance for conducting cases with vulnerable witnesses and defendants. It is recommended reading for all criminal practitioners, though not yet compulsory.
Some of its guidelines for advocates will be regarded by traditionalists as verging on heresy: advocates involved in cases with child witnesses are instructed not to ask leading questions while cross examining and to find alternative ways to put their case besides cross-examination. But these steps are essential in maintaining the balance between a defendant’s right to a fair trial and a witness’s right not to be subjected to degrading treatment.
Meanwhile, in a corollary to the “ticketing” plan, the Advocacy Training Council working group has also been designing a training course for advocates to undertake, formulating a “kite mark” to certify those with demonstrated expertise. This training will ensure that all advocates understand and demonstrate the requisite expertise to an objectively approved standard.
Protect and serve
Although the full details of the government’s proposals have not yet been revealed, skillful and diligent practitioners have nothing to fear from having their expertise assessed and accredited. There is nothing in these proposals to date which prevents the full exploration and presentation of a defendant’s case to a jury. Far from it: it is fairer for a trial be decided on the merits of the evidence rather than the emotional response of a jury to a highly distressed victim or witness.
But above all, to simultaneously protect complainants and ensure cases are heard fairly, we need a criminal justice system that is properly resourced.
Lawyers need to be paid according to their level of expertise; courts need to be fully staffed to ensure cases can come to trial as quickly as possible. Above all, prosecuting authorities need to be able to ensure that supportive communication with witnesses is maintained throughout the legal process – and that takes time, money and staff.
Only when these wider problems are addressed can the dignity of witnesses be preserved while ensuring the fairness of the trial process.