Vera Baird

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“Seeing is Believing” – Dame Vera Baird QC launches a new report on Northumbria’s unique Court Observers scheme

20th February 2017

A new report from Northumbria Police and Crime Commissioner Vera Baird DBE QC highlights how even small changes to court processes based on the observations of a unique scheme of Court Observers could help improve the rape conviction rate.

The 12 observers, local members of the public, watched on a rota basis 30 rape trials at Newcastle Crown Court between January 2015 and June 2016.

The report “Seeing is Believing” is published today (Monday 20th February). As a result of the observations changes have already been made by the Judiciary and the CPS to local working practices.

Dame Vera said:

“We have called this report “Seeing is Believing” because it sets out what 12 members of the public have seen and noted. These individuals have watched 30 rape trials over eighteen months. What they have seen has happened. They had no other purpose but to watch. They have no axe to grind, no partiality, and so far as we know none of them had met any of the other observers before they started their work – a bit like a jury.

“We hope that what the observers saw can help our local criminal justice agencies ensure that more trials become like the best ones that were seen. We have already passed on some simple information which has made a difference.”

Dame Vera adds: “The observers were able to see what participants in the court process will not have seen. Their overview, as members of the public, from outside the local criminal justice culture is an entirely unique perspective on how rape is being tried and how in Newcastle Crown Court these important, difficult and delicate cases are being run.

“Although there is criticism in this report, there was much in what the observers saw that they applauded. Throughout the report examples of good practice appear and are thoroughly commended.”

Recommendations

Recommendations include that ISVAs (Independent Sexual Violence Advisers) are allowed to stay with victims while they give their evidence.

That all prosecution barristers meet with complainants ahead of trial to explain the process and make them feel valued and involved; that technical equipment in the court room properly works.

Arrangements ensure that complainants and defendants do not meet and that evidence of previous sexual conduct is not introduced into the proceedings without proper applications.

Dame Vera concludes: “We can draw no causal link between anything observed and the outcomes, although clearly many of the matters raised in the report are capable of having played a role.”

“This was an extensive piece of work which could not have been delivered without the support and commitment of the court observers and other partners. I am grateful to all for their efforts”.

Of the 25 cases which were finally resolved (5 cases were to be re-tried) 6 were guilty verdicts and 19 were acquittals. 6 guilty verdicts from 25 cases is a charge to conviction rate of just less than 25%.

The report notes how the complainant’s previous sexual conduct was used in 11 of the 30 cases. 

In 7 of those 11 cases the proper procedure – to apply for the judge’s consent well ahead of trial with notice to the prosecution – was not followed.  There was either no application at all or it was made at trial without notice. While Judges are understandably reluctant to refuse to hear late applications in case there is material relevant to the defence, the effect is to ambush the complainant and the prosecution.

In 2 of the 7 cases, defence barristers simply made allegations of previous sexual conduct to complainants in front of the jury, with no application and no consent. In a 3rdcase, the defendant himself blurted sexual allegations out, observers noting that neither the prosecution nor the judge intervened.

The report continues:

“In most of the 11 cases in which sexual conduct was used it related to sexual conduct with other men.

In trial 1 the defence sought expressly to use sexual conduct with other men to discredit the complainant. The defence barrister said that it was to show that: “she is an adulteress”.

In trials 12, 14 and 20, previous sexual conduct with other men was used with a catalogue of non-sexual behaviour such as shoplifting, being suspended from the nursing register and taking drugs, to discredit the complainants. (No observers recorded any argument that this material was relevant to any other issue in any of these trials).

Guidance in Section 41 Youth Justice and Criminal Evidence Act 1999

Yet, Section 41 says that previous sexual conduct should not be considered relevant if its purpose or main purpose is ‘to establish or elicit material for impugning the credibility of the complainant as a witness’ (subsection 4). The legislation was intended to stop any implication that the complainants previous sexual conduct made it more likely that she had consented to the defendant or made her/him less worthy of belief.

We repeat the observers did not record that this previous sexual conduct was relevant to any issue in the case. Even if it had been, the section is clear. It says that previous sexual conduct may not be used if its purpose/main purpose is to impugn the complainants credibility EVEN if it ‘relates to a relevant issue in the case’ (ss3) and EVEN IF the material is such that its exclusion ‘might have the result of rendering unsafe a conclusion of the jury’ (ss2b).

That is a very high test and it is extremely hard to square how the previous sexual conduct admitted in trials 1,12,14 and 20 met that high test.

Rather, it seems that previous sexual conduct was used to discredit her/him, in precisely the way that Section 41 was intended to prevent and that the legislation, at least in these 4 trials, did not work well.”

The report draws attention to and makes a number of important recommendations for the CPS, for Court staff, and for the Police and judiciary and for OPCC. Here we list just some of them:

For the CPS to:

  • Ask in open court at the pre-trial case management hearing whether the defence intend a Section 41 application and get a clear note of the response.
  • Should remind barristers that they are required to challenge all late Section 41 applications.
  • Ensure that prosecuting counsel robustly opposes all applications for the admission of Section 41 material and if an application succeeds, further seek to limit the ambit and quantity of such material to the minimum.
  • Work with prosecuting counsel to anticipate rape stereotypes which may come into cases, whether or not introduced by the defence, and use the model directions to dispel them in outlining the case at the start of the trial.
  • Require prosecuting counsel to challenge any stereotypes if they are deployed by the defence, in order to ensure that they are not accepted as correct by the jury.
  • Should ensure that all prosecuting counsel are aware that, whilst at the very least, they should be meeting the complainant in good time on the morning of the trial, a pre-arranged meeting ahead of the trial date will give better reassurance and is considered better practice.
  • To ensure that the complainant is made aware of what special measures have been granted at the earliest opportunity and well before the day of the trial, for reassurance.
  • To ensure that prosecution barristers understand the professional nature and the scope of the ISVA role.
  • To ask all complainants whether there is an ISVA or other trained supporter who they wish to accompany them when giving evidence and to request consent for this from the judge.
  • To review/address any quality concerns raised by individual ABE (Achieving best evidence) interviews and ensure that good equipment is available

For HMCTS to:

  • To ensure that all technology and equipment (including physical screening of the complainant from the court where applicable) is working and sufficient.
  • To review/address the quality of the equipment used to play ABE (Achieving best evidence) interviews as a matter of priority.
  • To ensure that the equipment available allows the complainant to give their evidence effectively if they wish to sit whilst giving evidence.

For police to:

  • To review/address any quality concerns raised by individual ABE interviews and ensure that good equipment is available.
  • All officers understand the need to approach every rape and sexual assault case as an evidence-led prosecution (in which the maximum use of wider sources of evidence, including witness testimony, is standard practice) and to ensure every effort is put into foreseeing the issues likely to be raised by the defence and countering them.
  • To ensure that the types of evidential failure observed in these 30 trials are not repeated in the future.
  • To ensure that at the first point of reporting it is made clear to the complainant that the account is believed and that a full investigation takes place and that where appropriate evidence is collated effectively and work with CPS to ensure that file preparation is timely and thorough.
  • To ensure that cases are pursued with appropriate vigour, equipment is fit for purpose and all witnesses are considered as to their appropriateness and relevance.

For the judiciary:

  • Judges are believed to be understandably reluctant to refuse to consider a late Section 41 application in case it concerns material relevant to the defence case. Where the defence are challenged at the case management hearing and say that they do not intend to apply but still make a late application, Judges are requested to take full account of that earlier opportunity, the requirements of the Criminal Procedure Rules, the potential impact on the complainants’ resilience of a sudden application ‘at the door of the court’ and on police resource availability at short notice and to consider taking a more robust approach. (there are four more Section 41 recommendations)
  • Observers praised highly the judges who explained and dispel rape stereotypes and would support the recommendation of the DPP.
  • To support good practice by asking, as a matter of routine, whether prosecuting counsel have met with the complainant and facilitating a meeting/further meeting if advisable.
  • To ask whether the complainant has been asked and where possible to permit applications for an ISVA or other trained supporter to accompany complainants when giving evidence.

For the OPCC:

  • OPCC has identified a recommendation that it will continue to work with the Rape scrutiny Panel to identify where improvements can be made to investigations.

Footnotes:

  • The Office of the Police and Crime Commissioner (OPCC) advertised in the local press and on social media for volunteers and were pleased by the good numbers of well-qualified citizens who came forward.
  • They were interviewed by a panel, as if applying for employment and twelve people were recruited and then trained by the regional CPS in order to follow the essentials of the trial process and the specific provisions around rape cases.
  • CPS and OPCC staff assembled, with the observers, a matrix of questions which followed the course of a rape trial and focussed on key stages and likely key issues.
  • Panel members worked, on a rota basis, almost always in pairs but very occasionally on their own, sitting in the public gallery which is separated from the body of the court by a slightly darkened Perspexscreen. They took care not to draw attention to themselves so as to avoid any risk of affecting the parties in the trials and wrote notes.
  • They watched the whole of each trial from beginning to end, except in two cases, (Trials 3 and 16) when domestic issues intervened.
  • The project was greatly assisted by the former Resident Judge, whom was consulted at the outset, including by sending him the questionnaire. They were also supported by his successor and by all the local Judiciary concerned in these cases.
  • Some early findings were reported to the Judiciary after a few months and to the CPS who both responded positively. At about the same stage the OPCC ran a mock trial session to refresh the observers’ training.