Tony Lenehan: Who will limit the limiters?



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Recently I came across the text of a lecture by Sir Andrew McFarlane, President of the Family Division of the High Court in England and Wales. In 2019 he delivered the Baroness Butler-Sloss Family Law Lecture at Exeter University.

His subject was the development in understanding by social work and judicial structures of the abuse of children as it evolved over recent years and decades, both at home and abroad. Baroness Butler-Sloss, some may remember, led an inquiry following the events in the Cleveland child abuse case which involved well-meant but over-enthusiastic diagnosis of sexual abuse.

The need and desire to protect children from abuse and prosecute wrongdoers is one of those axioms that no rational soul would challenge unless they sought to bathe in public and political ire.

I wrote an article in The Scotsman a short time ago cautioning our politicians against the alluring dangers that surround such emotive and unchallengeable causes, in the connected shape of the prosecution of sexual crimes. I didn’t think I was challenging the good cause itself, but I had enough resultant social media ire for at least a decent scrub.

And yet here I am again.

A comment in Sir Andrew’s lecture seemed resonant to me. Resonant in the context of the present public discussion about abandoning juries in sexual crime cases, and some less public changes to which I will turn. No doubt with events like the Orkney and Cleveland child abuse enquiries in mind, Sir Andrew acknowledged that sometimes the pendulum of well-meaning intervention swung too far. This is my fear in sexual offence prosecutions, hence the resonance. Sir Andrew saluted the successes and improvements in the field but drew attention to this temptation to go too far, in pursuit of an emotive cause.

These good causes, be they protection of children from abuse, or vindicating the rights of victims of sexual abuse, are so naturally attractive to right-minded citizens that they can tempt the incautious into puritanical displays of vehemence and zeal. That road leads away from justice, not toward it.

I don’t know how much the reader knows of our current system of criminal justice in sexual offence trials. Parliament enacted a mechanism for judicial limitation of questioning of complainers in sexual offence cases. 2022 will be its twentieth anniversary. If my memory and experience are to be relied upon, for many years the mechanism proceeded with something towards unanimous support. Twisting a complainer’s brushes with mild mental ill-health into something sinister was outlawed. Never-ending trawls through childhood misbehaviour of questionable relevance to the matter in hand, or tabloid criticism of lifestyle or dress, were excluded from the trial process. Like Sir Andrew McFarlane’s acknowledgement of general progress and improvement over decades, sections 274 and 275 of the Criminal Procedure (Scotland) Act 1995 were broadly saluted in their application.

Without any further substantial parliamentary addition though, in recent years this mechanism of judicial limitation of defence challenge has mushroomed. Lawyers in the field, both prosecuting and defending, commonly hold the view that access to evidence which challenges a sexual allegation is now so tightly controlled that a modern jury would likely be astonished by what they are forbidden to know.

It is this perspective of ordinary citizens which causes criminal court lawyers concern. The initial practical effects of the legislation, back in 2002, we think would have been welcomed by the ordinary citizen. The things which were excised from the evidence had insufficient relevance or merit to be worth the time and embarrassment bringing them up caused.

Now though there is a widespread view, communicated to me, that we have gone beyond that stage of natural balance, and Sir Andrew’s experienced warning against over-swing needs urgent consideration.

Our courts are thriving when they are proud to display their workings to the public whom they serve. Trust in the system of criminal justice comes from welcoming the participation of citizens into the process, whether in their role as jurors, or simply inviting them to watch the process and be satisfied by what they see.

Excessive restriction on what jurors can be told is unwelcome and should be avoided. The contemplated complete exclusion of citizens from the process, by removing sexual cases from a jury’s reach, must be seen as abhorrent in an advanced democracy. If the perceived present trajectory is allowed to continue then we will have serious sexual offences tried with ever more limited access to honest defence challenge, and by judges alone without the benefit of any citizen’s advice at all.

I claim no special ability to determine public mood exactly but I am an intelligent person experienced in the field, and I am trusted by the Faculty of Advocates’ Criminal Bar to voice concerns on their collective behalf.

The question of forbidding citizens from sitting as jurors in sexual offence trials will need debate in Parliament, and that provides public engagement in, and scrutiny of, the decision-making process. In a democracy, that is what gives validity to the eventual decision.

The point of this article is to advocate a pause for breath in the tightening interpretation of ss.274 and 275 of the Criminal Procedure (Scotland) Act 1995; the restrictions on evidence the jury in a sexual offence case can be told about. There doesn’t seem to be any public input into or oversight of that process at present. The twentieth anniversary in 2022 would represent a natural point of reflection on how this mechanism is working in practice. It may well be that the senior judiciary would welcome our society’s views on the matter since the young witnesses on stage at trials are living in a social and sexual world far removed from that of the youth of our senior lawyers and judiciary. It is known that the Appeal Court will update the application of law to reflect societal changes, and input from wider society on those changes should be welcomed, not simply from special interest groups.

We must have a system of justice that lawyers and judges are proud to have citizens explore and understand. Moving citizens further back to limit their view, or excluding them entirely, does no good in fostering public trust and confidence in this most important of social institution.

It is often said that we have a system of criminal justice that is the envy of many other countries. Let us continue to strive towards perfection, keeping public trust at its centre. Twenty years after creation, the time is ripe for collaboration between the criminal justice system and the citizens to see that the operation of one continues to respect the wishes of the other.

Tony Lenehan is president of the Scottish Criminal Bar Association