Brian McConnachie QC responds to Lord President’s comments on cross-examination in rape cases

Brian McConnachie QC explains the importance of cross-examination on behalf of accused persons and expresses concern at the idea gaining currency that complainers in sexual offence cases deserve special treatment as distinct from other complainers.

No right thinking lawyer would disagree with the recent views expressed by the Lord President that complainers in cases of a sexual nature ought not to be subjected to cross examination which crosses the boundaries of aggression or hostility and that cross examination should be focussed and relevant. Indeed it might well be thought that every witness, no matter the crime, should be treated in the same way. There is no logical reason why a complainer in a rape case should be treated differently from a complainer in an assault case. They are both claiming they are victims of the accused’s conduct.

However there are a number of matters which should not be lost sight of in the quest for fairness. It is of equal importance that the person accused of these serious crimes receives a fair trial. Defence counsel/solicitors carry out an extremely difficult task in carrying out the cross examination of complainers, no matter the crime. If there is a trial then it is self evident that the accused maintains he/she is innocent and that the allegations are false. It is imperative in these circumstances that cross examination is robust and properly tests the evidence given by the witnesses who, according to the accused, are lying in court.

Good cross examination is focussed, as detailed as required and no longer than necessary. It is not in the interests of the accused to have pointless, lengthy and repetitive cross examination. It is a concern that what might be being suggested here is that complainers in sexual offence matters are somehow deserving of special treatment. Whilst it is acknowledged that giving evidence of such matters may be more difficult than in some other cases that is only so if the witness is telling the truth. The purpose of a trial (of which cross examination is an important part) is to determine whether or not the complainer is in fact a victim and provided that the cross examination stays within the established boundaries it is the only proper way to test the evidence. It is difficult to avoid the conclusion that this call for protection stems from some notion that because it is a sexual offence then somehow the evidence must be true.

It is undoubtedly the case that the reasons for the relatively low rate of conviction in sexual offences trials are complex and multi factorial and the subject matter may make giving evidence more difficult. However one factor is that juries are often not prepared to accept the complainer as credible and reliable. On many occasions that is due in no small way to the proper, careful and skilled cross examination of the complainer on behalf of the accused. Anyone charged with such an offence or anyone who had a family member charged with such an offence would expect nothing less and rightly so.

It is hardly surprising that the recent article connected the speech by the Lord President to the recent case of Dreghorn in which I was the defence counsel criticised by the court. There are a number of issues in relation to that case which are often ignored when it is referred to.

The appellant in that case faced an indictment containing 44 charges. At the end of the trial the jury convicted him of a total of 8. By the time the case went to the jury there were 25 charges left. Of those 20 of them depended upon the testimony of the witness who was the subject of the cross examination which was criticised. The jury acquitted the appellant of 16 of those 20 charges. The court criticised the prosecution, the defence and by implication the trial judge. In my view that criticism was unjustified and as it was never raised at all during the hearing of the appeal none of those criticised had any opportunity to answer the criticism.

The prosecutor was dealing with a difficult witness who was speaking to a very large number of charges. He was required to lead all of the evidence in relation to all of those charges. With the best will in the world that was bound to take a significant period of time.

There were no questions about what the complainer had for supper. The questioning was as focussed as the victim allowed. Cross examination required to deal with each and every charge involving allegations of multiple rapes, child abuse etc and of necessity was longer than normal. There was a lengthy police statement given by the witness and it was a necessary and proper exercise to contrast parts of that statement with the witness’ testimony where there were significant differences. In fairness to the witness, the accused and the jury hearing the case these matters required to be dealt with at an appropriate pace so that all understood the points being made. The learned trial judge was a very experienced judge who at no time admonished either the prosecutor or the defence for the manner in which the trial was being conducted. Indeed the only person who was admonished was the witness who was instructed that the questions were perfectly proper and that she should answer them. This was in my 30 years’ experience as a lawyer a unique case and not one which should be used in any way to shape the structure of or lead to any curtailment of cross examination.

There are already in place mechanisms for a trial judge intervening in examination in chief or cross examination where he/she considers it necessary and appropriate to do so and they do so on a daily basis. In my opinion those who defend are as a rule careful to observe proper standards in cross examination and if they fail to do so they will rightly be stopped.

In my opinion we do not need any new legislation or any new rules to enable this to be done.

I am sure that we as advocates, whether prosecuting or defending are not perfect and can continue to learn better ways to conduct cross examination of vulnerable witnesses especially children. I understand that the Faculty of Advocates has instituted further training to seek to ensure that the high standards of cross examination and advocacy in general are maintained.