SCBA responds to Lord Carloway’s comments on alleged rape victims

The Scottish Criminal Bar Association (SCBA) has responded to comments made by the Lord Justice Clerk that counsel’s questioning of complainers should not be “protracted, vexatious or unfeeling” in a judgment from a case heard last year.

Lord Carloway made his comments following the appeal against conviction of Duncan Begg, 44 in the Criminal Appeal Court last year. Mr Begg, whose appeal failed, was jailed for eight years for raping two women in the 1990s.

He was represented by Brian McConnachie QC, who began cross-examination of one woman by saying to her: “You are a wicked, deceitful, malicious, vindictive liar.”

Lord Carloway took issue with Mr McConnachie’s manner of questioning, which he said disrespected the victim’s rights.

He said: “Cross-examination opened with a direct salvo rather than a question, presumably designed to destabilise the witness.

“It is doubtful whether the ubiquitous informed bystander would have regarded the conduct of this trial as affording due respect for the complainer’s rights.

“Leaving aside a question of whether the correct procedure … was followed in this case … it is important to emphasise that a trial judge has a power to control the nature and scope of questioning. He is entitled to stop questioning if he considers it to be protracted, vexatious and unfeeling.”

The Lord Justice Clerk went on to write: “While not wishing to be over-critical of the advocate depute or defence counsel for the manner in which this case was conducted, given the latitude which seems still to be afforded in practice in cases of this type, it has to be said that both the manner and length of examination and cross-examination give cause for concern in relation to the treatment of a vulnerable, or indeed any, witness testifying in the criminal courts”

Responding to the comments president of the SCBA, Thomas Leonard Ross, said in a statement they could “only be construed as critical of defence counsel”.

He suggested that Mr McConnachie’s style is part and parcel of trial situations and made the point that cross-examination of a complainer in a rape case is a delicate task that only skilful and experienced lawyers are trusted to undertake, adding that Mr McConnachie “undoubtedly” is such a practitioner.

Mr Ross also said that emotions run high in trials and added that it is incumbent on defence counsel to take the cross-examination to its “absolute limit” because a potentially innocent person’s liberty is at stake.

As a result, he said that “one size fits all” approaches will never work and noted that counsel must be able to shift from one approach to another as cross-examination progresses.

In this case, if, as was suggested, the complainer’s conduct was exaggerated in order to influence the jury then, Mr Ross noted, Mr McConnachie was “almost bound to put that suggestion to her for comment”.

He said: “Lord Carloway made much of the time that the cross-examination took, but two people were involved in that process – apparently the behaviour of only one merited intervention by the trial judge.”

Finally, he noted that every day advocates must balance “the dignity of the complainer and the right of the accused to a fair trial” before adding: “Nobody outside the profession could imagine how much high quality work you have to do to earn the respect of your peers.

“We have approximately 150 members and none of them is respected more than Brian McConnachie QC.

“The Scottish criminal justice system is extremely lucky to have him and the unfortunate publicity that this difficult case has attracted does not lessen our respect for him one iota.”