Respecting the 'victim'
Originally published in the Law Society Gazette.
Last month, I announced new proposals to better assist victims and witnesses called to court to give evidence in criminal trials. I readily acknowledge that sections of my draft guidance are controversial for some, which is why I decided to publicly consult on the guidance. I welcome the debate that has taken place across the legal community and am grateful to the Gazette for this opportunity to address concerns.
I have been privileged to meet victims and witnesses during my first year as the director of public prosecutions. They often tell me that the fear of not knowing what is going to happen in court is often worse than the actual experience of giving evidence - and these personal accounts have really stayed with me.
Since launching this consultation, some have argued that witnesses not knowing what to expect is an important part of the adversarial process. But no one - prosecution, defence or the public more generally - benefits from a situation which is unfairly stacked against a victim.
Cross-examination is not about ambush or subjecting people to memory tests. This is a widely held opinion; the Court of Appeal has made it clear that to treat the criminal justice system as a game is not acceptable. The court process is about giving everyone the opportunity to give their best evidence - and this is what my guidelines aim to do.
Gazette readers will be all too familiar with the workings of the courtroom. But we should never forget how alien it is for the majority of victims and witnesses who do not choose to be there.
There is also concern that my proposals are in danger of amounting to coaching victims and witnesses and training them how to answer likely or specific questions. Those concerns show right and proper regard for the principles of our system - regard that prosecutors not only share but proudly protect.
What I am proposing is limited and within the boundaries of our current system. We know where the line is drawn and prosecution advocates have been conducting pre-trial witness interviews with victims of alleged sexual offences for some years. We have not seen a rise in abuse arguments, rehearsed evidence or unfair trials. What we have seen is better evidence, which is in the interests of all concerned.
My guidance extends this existing service to victims and witnesses of all crimes and is clear about how far prosecutors can go. Reactions in court will remain unrehearsed, but should be less distorted by shock and distress. Nowadays, the prosecution and defence disclose much more to each other than ever before and this guidance is aimed at ensuring victims and witnesses are now included, to an appropriate level, in this approach.
In a rape case, a victim would be told if the likely defence was to be, for example, on the issue of consent - but would not be told of the evidence itself, or any further detail. They may also be told that the court has allowed that their sexual history be examined - but not why or what. In an assault case, I would want to tell the victim if the likely defence case was to be self-defence, or perhaps an identity dispute - but not why or how.
And if a witness to any case was going to be accused of being inherently dishonest, perhaps due to a past fraud conviction, I would want to tell them that previous convictions had been disclosed to the defence - but not how it may relate to the case.
Finally, I want to take this opportunity to address my use of the word 'victim' when referring to those who make allegations of criminal offences. Of course, whether someone is legally a victim of a specific crime by a specific person is for a court to decide. But I think it is really important that everyone in the criminal justice system acknowledges that when someone goes to the police they feel they are a victim of crime and we should respect that.
I hope most people will find the guidance compassionate and reasonable. I strongly encourage you to respond to our consultation at www.cps.gov.uk/consultations and to join the discussion on Twitter #victimsatcourt.