Crossing the line

There can be fewer harsher illustrations of the perils of our trade than the pictures in the press last week following the Milly Dowler trial. Seeing the bloated ugliness of a triple murderer side by side with the unbearably young and bonny face of that poor lost girl wrung the heart, and would wring the hearts of anyone, however defence minded and court hardened the bearer of those hearts might be.

The debate that has followed is one which it is good to have: we should, as citizens as well as lawyers, keep the mind open about how we do our work, and how our tactics in court should adapt to changing social circumstances. It is not that long since barristers in rape trials could hold up women's knickers in court to demonstrate they were tarts for wearing them, and were able to say that if a girl had ever had sex she was up for it with anyone.

The feminist movement got rid of those tactics: is it time that the victim movement got rid of the kind of cross-examination complained about in this case? That movement says that the victims of crime have suffered enough before they get into court, and should be protected from any further grief.

Accusations that a parent is in some way responsible for the disappearance and therefore the death of their child is perhaps the most grievous accusation that can be made: various suggestions are being made to combat defences which involve such suggestions, from significantly greater punishment if the defence fails, to swingeing restrictions on cross-examination. And surely, if you can't now accuse a woman of being a slag who has thus divested herself of the right to refuse sex, restrictions on cross-examination in other areas would merely follow a civilizing trend?

And this is where we have to be forensic. The purpose of restrictions on cross-examination about sexual behaviour is to ensure that if a jury acquits or convicts a defendant it does so on the evidence, and not on prejudice or unease about sexual morality. Where previous sexual behaviour is relevant, on application to a judge it can go in: where it is not relevant, it is refused.

Of course restrictions on cross-examination in rape cases save women from humiliation or embarrassment, and that is a proven good '“ but it is relevance which is the arbiter not charity. Quite apart from the code of conduct which sets out the limits we must abide by, the rules which exist already to promote relevance overall in cross-examination are guarded vigilantly by judges. The most mild mannered of judges is a Cerberus at the gates to protect a complainant or witness from accusations which are unfounded on the evidence, or scandalous, or unrelated to the issues in the trial.

Applications to put in the previous criminal convictions or general bad behaviour of a prosecution witness never, unlike special measures applications to make giving evidence easier for witnesses, go through without hard fought argument '“ and woe betide an advocate who doesn't obey every word of the ruling a judge makes on that.

Harsh law

But if there is relevance, if there is evidence on which accusations can be founded, if the judge permits it, and if the client so instructs, it is the advocate's duty to plough on and make the best of it. Harsh cases make harsh law '“ one needs to step back, take a deep breath, and protect the principles involved at the heart of even the most distasteful defence. Because if one starts seriously down the road of limiting cross-examination which upsets or distresses a witness, then one might as well have trial by custody sergeant (in the 96 hours now allowed) and be done with courts and juries.

Witnesses have to be challenged '“ their version has to be tested '“ even apparently wildly unreasonable defences must be put to them. And what if those apparently wildly unreasonable defences turn out to be true? There was a case where the advocate put to the teenage complainant of a sex offence that it was a put-up job, got up by the mother with a grievance against the defendant, and a pack of lies from start to finish.

All most upsetting, and there were many tears and much distress in the court room. The jury acquitted, almost certainly conned into this by the sneaky defence barrister. And a few months later the young person volunteered to the ex-defendant that it was indeed all true, that the mother had exerted extreme pressure, and that she was very sorry indeed. That is not a fairy story, despite the happy ending '“ nor, admittedly, is it a typical case. But it happens. And we must make sure it can happen again.