Caricature of Sir Charles Russell QC MP. Caption read “Cross Examination”. (Photo credit: Wikipedia)
In the recent case of Lord Janner, we are told that those who make the allegations must face cross examination. We are told that this is necessary for justice. We are told that this is what the UK legal system requires. Yet, there is a deeper, darker, element to this request-the ability to destroy the witness.
Court is a brutal place of legal combat
When someone is cross-examined in court, they face a brutal environment. They are at the QC’s mercy. The contest is neither fair nor balanced. It is combat. The UK system is based on adversarial justice. The QC is a master of their art. Their goal is to win. If the witness is destroyed, that is of no consequence. Their job is to win by testing the evidence; nothing more, nothing less. As long as they stay in the code of conduct they can do what they want.
Only doing our job, we must “test the evidence”.
As we are reminded, if the QC did not test the evidence then they will have failed their client.
Indeed, not to test the evidence properly would itself be a breach of the Code of Conduct, which requires that barristers, “must at all times promote and protect fearlessly and by all proper and lawful means his lay client’s best interests” (Written Standards for the Conduct of Professional Work, para 5.2).[1]
The victim is there answer questions. The QC is not interested in the truth for this is not a philosophical inquiry. It is a battle, through a test of the evidence, to determine guilt or innocence. Anyone who believes that the legal process is a quest for truth understand neither the law nor philosophy. Even though both rely on cross examination one has a goal to understand, to discover the Truth, the other is focused on persuading the court of someone’s guilt or innocence by “testing the evidence.”
Attack the character as Aristotle recommended.
As Aristotle explained in his treatise Rhetoric, one technique to persuade an audience is to attack the witness’s character.
For if we have no evidence of fact supporting our own case or telling against that of our opponent, at least we can always find evidence to prove our own worth or our opponent’s worthlessness. Other arguments about a witness-that he is a friend or an enemy or neutral, or has a good, bad, or indifferent reputation, and any other such distinctions-we must construct upon the same general lines as we use for the regular rhetorical proofs.[2]
Beyond the character, a QC’s will attack their psychological state. The QC may even do it sympathetically for they cannot have the jury hate them too much. They will be sure to make the witness relive the experiences they have alleged. They will walk them through each humiliating detail. They will repeat back to them what they said. All of this is to test the witness’s psychological endurance under the cover of a test of the evidence. Whether they intend it or not, they punish the witness.
The adversarial system allows this approach.
Immediately, one may protest and say “Surely, this is not so. The judge would intervene.” Yet, this is the case. The judge cannot set the limits to the number of lawyers questioning a vulnerable witness nor can they limit how long the question lasts.
As it stands, judges have no real power to limit the duration of questioning or the number of lawyers who can cross-examine a highly vulnerable witness in court. Practice directions encourage judges to set limits, but despite this judicial practice remains very uneven.[3]
If a witness requests, and the court grants it, they may be treated as a vulnerable witness. They can
“[H]ave had the option of benefitting from a variety of different measures that are enshrined in the (Youth Justice and Criminal Evidence Act 1999). These measures include giving evidence with screens in order to prevent the victim from seeing the defendant (s 23), or giving evidence via videolink, thus allowing the victim to be in another room altogether whilst giving their evidence (s 24). Section 17(4) automatically classes sexual offence complainants as being intimidated and therefore eligible for special measures. They must still request them, but they are assumed as fulfilling the criteria to be eligible for them.”
Let’s consider how barristers acted with Abby who was questioned aggressively by seven solicitors[4] every day for three weeks.[5] In Abby’s case, the Bar Council was concerned enough to raise it at their meeting.[6] Her case is hardly the exception. It is depressingly common.[7] More to the point, her treatment is after the Youth Justice and Criminal Evidence Act 1999. Before that Act, vulnerable witnesses had no such protection.
If you think it is bad today, imagine what it was like 50 years ago!
One can only shudder at what it would have been like to testify in the 1950s, 60s, or 70s. For someone to bring a case to court, they will have had to struggle against the institution where they were abused. They would have had to convince a sceptical police. They may have even faced a police force that wanted to favour their accuser so that their claims were dismissed out of hand. If they are able to overcome their institution, the police, they face the final challenge–the court. The court experience, even in the last five years is a brutal experience. As one victim said, they would not go through it again.[8]
Test the evidence or punish the witness?
With this knowledge, we can see why QCs want to “test the evidence”. They know what they can do. The witnesses will be at their mercy. Even if the witnesses are right, the QCs will have done their work. They will give the witness a thorough, if legal, beating. For some defendants, this is enough for they will inflict pain to balance the scales. At the end, the public will be told “they were just doing their job”. The broken witnesses will have been taught a brutal lesson about the law.
The law teaches a brutal truth
We know that Lord Janner will not be cross examined. His alleged victims will.[9] This about sums up UK justice for CSE survivors. The strong rule the weak and the weak suffer what they must.
[1] http://www.halsburyslawexchange.co.uk/frances-andrade-case-the-treatment-of-vulnerable-victims-in-the-court-system/
[2] http://classics.mit.edu/Aristotle/rhetoric.mb.txt
[3] See http://goo.gl/sFpxos at https://hansard.parliament.uk/commons/2016-07-06/debates/16070660000001/Cross-ExaminationOfVulnerableWitnesses
[4] One wonders why after the 3rd barrister making the same points did not succeed the remaining four thought they would succeed?
[5] http://www.theguardian.com/law/2013/may/19/lawyers-oxford-abuse-ring
[6] The Bar Council was suitably concerned about the case and others to raise it at one of their meetings. http://www.barcouncil.org.uk/4767.aspx see also http://www.newlawjournal.co.uk/nlj/content/question-time
[7] The case is not isolated it is one of many. It is hard to believe but the UK criminal justice system has improved in recent years with some guidance for treating vulnerable witnesses. One can only imagine how brutal the QCs could have been in the past assuming a victim could convince the police to investigate and the Crown Prosecution Service to bring a prosecution. See for example, http://www.independent.co.uk/news/uk/crime/court-is-just-as-traumatic-girl-who-faced-aggressive-cross-examination-aged-nine-says-she-has-never-8631662.html and http://www.felicitygerry.com/wp-content/uploads/2014/10/IARS-Vulnerable-witnesses-dignity-and-respect-FRGQC-FINAL.pdf
[8] One victim who suffered such an ordeal when they gave evidence said they would never give evidence again as it was worse than had their abuser gone free. http://www.bbc.co.uk/news/world-europe-jersey-27949117
[9] One wonders if, as a QC, Greville Jenner avoided cross examination as he knew what it entailed?
Philosophical Politics 