Monday Message ‘RASSO Special’ – 23.10.23
The CBA submits today its Response to the Law Commission Consultation on Evidence in Sexual Offence Prosecutions.
The Consultation paper suggests:
- Complainants should be represented throughout by independent Counsel;
- Cross-examination of the defendant should be done by an additional specialist Counsel, not Defence Counsel;
- Barristers should be subject to disciplinary proceedings if they ask questions that are considered refer to a myth or misconception;
- The right to jury trial in rape cases should be removed.
These are extreme proposals based on anecdotal, small scale studies and research from Australia, New Zealand and Canada and on the assertion that our juries cannot be trusted to follow legal directions in rape cases.
We think there are widespread myths and misunderstandings as to how offences of sexual violence are dealt with in our courts and how criminal barristers carry out RASSO work in England and Wales. It is wrong to suggest to complainants and victims of sexual violence that they will not be believed by juries, that when they complain they won’t be taken seriously and that barristers will humiliate and denigrate them. This misinformation is contributing to a growing attrition rate which, when added to delays in our criminal justice system, are causing complainants and victims to give up. This must stop.
We set out in the Response the true position in the conduct of sexual offence cases in our courts, including the extensive training and monitoring of RASSO Prosecutors and Defence Counsel who conduct this sensitive and important work. The reality is that the conviction rate for rape offences is higher than other serious violent offences, has been for over 15 years and a defendant is more likely to be found guilty than not guilty.
Improvements are still needed. ISVA’s (Independent Sexual Violence Advocates) provided to complainants and victims to support them needed better training which is now accredited but court technology, used to play complainant recorded evidence, can be poor quality. There has been criticism of the questioning by police officers which is variable across different areas although research is on-going into the effect of Section 28 pre-recorded examination and cross-examination by the specialist RASSO advocates that conduct this work.
Most significant, in our view is the lack of information provided to complainants and victims and the failure to include them in the process from an early stage. We intend to publish a paper on engagement with complainants early in 2024. Whilst the CPS provide helpful information on their website, complainants don’t know it is there or access it, we suggest all complainants should receive a guidebook including step-by-step information about the process and special measures, with explanations for why disclosure might be needed in certain types of case and how questions on previous sexual history are limited by law under Section 41.
Whilst we disagree fundamentally with many of the proposals in the Consultation, the CBA and the CBA RASSO Group in particular, should be the first point of contact when policymakers and governments consider radical legal changes to evidence and procedure because we are on the frontline. We will work with any parliamentary body or government department to create a better system for all.
We are very proud of every one of our 668 RASSO Prosecutors, many of whom also defend and all criminal barristers who choose and dedicate themselves to this challenging area of work. Being “RASSO” trained Counsel is a mark of excellence and many of us have spent our whole careers in this field. We seek and maintain the highest standards of advocacy in RASSO cases as expected of us by the CPS, the courts and the public and will do no less.
I can be contacted on [email protected].
The CBA team wish you all well with your endeavors over the coming week.
Be excellent as always!
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