Pre-trial cross-examination: why can’t Mr Grayling get his facts right?

Mr Grayling has announced that he is to introduce pre-trial cross-examination for complainants in sexual cases. Instead of having to attend court on the day of the trial, complainants will be able to record their cross-examination in advance.

The power to introduce the procedure has been on the statute book for many years but Mr Grayling, a Minister of Justice who likes making sweeping changes by secondary legislation (which he can do without engaging in parliamentary debate), has now decided to activate it. Wisely, the plans are to be piloted in just three areas, Leeds, Liverpool and Kingston upon Thames, before they are introduced across the country.

Many advocates will have had the enervating experience of conducting a case against an opponent that one cannot trust. It is something that induces a certain queasiness. The shifty opponent subtly misrepresents the evidence in their submissions. They agree facts and then deny that they made any such agreement. You never quite know, but often suspect, that they have been coaching their witnesses in privacy. They spring surprise legal arguments on you at ten o’clock in the morning, often supported by lengthy skeleton arguments which look impressive, but then turn out to omit the crucial authority because it does not support their case. Outright dishonesty is extremely rare, but an incompetent opponent can be as untrustworthy as a dishonest one.

The difficulty is that once you come to regard your opponent as shifty, for whatever reason, you begin to doubt their motives in anything that they do. So, I am afraid, it is with Mr Grayling. Ever since becoming Minister of Justice, and indeed beforehand,  he seems to have been playing games with the press.  Silly changes to the law of self-defence are demanded and made, for no discernible reason except to improve Mr Grayling’s political standing.  Human rights law is attacked prior to an all out attack on civil and criminal legal aid.  As a result it is unclear whether his latest announcement has been made because of the merits of the change or merely as part of a propaganda war against criminal lawyers.

The leakage of misleading figures about barristers’ legal aid earnings cannot, perhaps, be put down solely to Mr Grayling. It is almost part of the Season now, a ritual that just happens two Thursdays before Derby day. But it was carried out particularly enthusiastically by Mr Grayling this year as the debate over his legal aid proposals was raging especially fiercely. The press were softened up beforehand by the absurd suggestion that lawyers should not be paid more than the Prime Minister. This time not only barristers’ earnings, but also selected details of solicitors’ firms’ earnings were released. Such and such a firm was said to have “billed taxpayers for … £8.27M,” a statistic that a moment’s thought would have revealed to be almost meaningless on its own unless one is told how big the firm is and how many people it employs.

So when Mr Grayling announces this latest change in the law, is he doing so in order to save complainants from needless distress, or is he doing so to remind the electorate that barristers do nasty things, like making women and children cry?

If he had got his facts right one might be less cynical, but Mr Grayling’s appearance on Radio 4’s Today programme yesterday was less than reassuring. He appeared to be saying that complainants in sexual allegations are required to appear in “the cauldron of the courtroom.” According to Mr Grayling “although we put children behind a video link, of course adults who have been sexually assaulted … very often find themselves in the same courtroom as the person who allegedly committed the offence….” This is utter nonsense: all alleged victims of sexual offences, of whatever age, are already entitled to a variety of “special measures” designed to make giving evidence less stressful. One such measure, routinely applied in sex cases, is an appearance via video link. It is in fact very much the exception for sexual complainants to appear in the same court-room as the defendant; in practice it only happens if, as sometimes happens, the witness actually expresses a positive wish to do so. Either Mr Grayling knew this, and was dishonest, which does seem very unlikely, or he was ignorant of current practice in the courts, which does not reflect very well on a Minister of Justice.

There is a third possibility: that Mr Grayling just bumbled into saying something he did not really mean to say, but that too seems most unlikely with such a slick political operator.

One witness whose name has been dragged into the debate was Frances Andrade who tragically killed herself after having given evidence in open court against her abuser, Michael Brewer. But Ms Andrade had chosen to give evidence in open court. Nothing in the change that Mr Grayling is introducing would have stopped her from doing so. Nor will it stop advocates in the future from doing their often unpleasant duty of sometimes accusing complainants of lying. Sometimes in fact they do lie. Cross-examination will be just as painful. Witnesses will still be reduced to tears, it is just that the tears will come before instead of during the trial.

In fact, for some witnesses the new arrangements will be markedly worse. They will have to be cross-examined on two separate occasions, because new pieces of evidence will crop up that were not known about at the first cross-examination. What is more it will become a legitimate defence tactic to look for such evidence.

Moreover, there is a real danger that complainants who do not actually need to be cross-examined as things stand, will now have to be. Human nature being what it is many defendants – despite strong incentives and advice to the contrary – often leave their guilty pleas until the last possible moment. At the moment complainants in such cases would never need to be cross-examined at all; but under the new regime they will have to be.

On the other hand it is possible that the sight of a witness being cross-examined and remaining convincing may well encourage more defendants to plead guilty.

At best it seems that the new arrangements may marginally improve the lot of complainants in sexual cases, but in an unknown number of cases it may actually make matters considerably worse.

Given the uncertainty about the changes Mr Grayling is to be commended for introducing the scheme as a pilot rather than nationwide.

But one certainty is that it will be more expensive than the current system. Every cross-examination of a vulnerable witness will take up twice as much court time as it currently does, first when the evidence is recorded, and then when the recording is played back to the jury at the actual trial. On average, a day in a Crown Court is said to cost about £10,000 a day. A typical cross-examination of a complainant in a sexual case takes perhaps half a day. Strangely, we have not heard any estimate from the Ministry of Justice of the increased public expenditure that the change will entail.  We have not even heard an acknowledgment that the change will increase costs.

Given the desperate need to save public money, and the savage cuts he has planned for the legal aid budget, it does seem rather strange that Mr Grayling should simultaneously be introducing a change that will have at best a marginal benefit for some witnesses and will, without any doubt, cost a considerable sum of money.

 We are entitled to expect two things of a Minister of Justice. First that he is accurate in his description of the existing system, and secondly that he should give at least some estimate of how much his changes will cost.

 In both respects, so far, he has failed.

Author: Matthew

I have been a barrister for over 25 years, specialising in crime. You may also have come across some of my articles I have written on legal issues for The Times, Standpoint, Daily Telegraph or Criminal Law & Justice Weekly

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