Winning isn't everything

Someone asked me the other day what I liked best about my job. As that someone was waiting for the prison van to remove him from a Crown Court cell to a better guarded residence, I paused to search for an encouraging answer. He got in before me. 'Winning, I expect,' he said wistfully.

As we had just come a fairly poor second, it did not seem particularly politic to reply. Obviously, a defence barrister who disliked acquittals would be a little freakish, and merry chortling and high-fives are not unknown in robbing rooms. But there are different sorts of winning '“ cases where the prosecution lose a case through bad investigation, bad policing, bad procedures, bad preparation and bad advocacy have all the entertainment of shooting fish in a barrel.

Victory's hollow ring

Contrary to our public reputation, defence briefs do not sit licking their lips as prosecution witnesses stumble through evidence that does not and never could have amounted to much, nor do they get much satisfaction from cross-examining an officer on the failures of an investigation, which if done properly might have had something to do with justice and less to do with budgets.

(I am not saying that isn't fun '“ but it is not particularly wholesome, and certainly not nutritious to our spirits). And winning in those cases has a hollow ring to it '“ it is not a victory when the other side gave up before it even started.

Take for example rape cases '“ there is much public bemoaning of the low conviction rate, presently standing at around 9 per cent of cases that go to trial.

And it is true that the conviction rate is atypically low '“ coming back to chambers and announcing an acquittal in a rape case gets the response 'well, what did you expect?' rather than 'goodness me what a star you are'.

And there are a lot of theories about why this is: sexist juries, a puritanical dislike of sexually active women, horrible bullying defence barristers, lackadaisical judges failing to protect the rights of women, too many rights for the defence '“ and there has been over the years a raft of legislation to protect the rights of women who make this most personal of complaints.

It is absolutely right that we should have to justify each and every question we want to ask about previous sexual behaviour (under s.41 of the Youth Justice and Criminal Evidence Act 1999), and that such questioning is limited to what is evidentially viable and essential. It is also right that a nervous complainant should be given special measures to help her give evidence freely, such as screens and video links. It is clearly correct that a defendant should not be able to cross-examine the complainant personally, and that his right to represent himself is suspended in this one area of the law. And it is equally proper that a complainant can now be legally represented if the defence apply for her medical records in disclosure under third-party witness summons applications: indiscriminate trawling through medical records should now be a thing of the past, and mental health history should be useable only where it is directly relevant to the complaint. The shameful days when defence counsel could say 'she's a nutter, don't believe her' or hold up a pair of flimsy knickers and tell a jury 'she asked for it' are over, and as somebody who campaigned for those days to be over I am pleased they are.

But none of this has worked '“ the conviction rate for rape is still lower than for any other offence. Clearly, it is not my brief to say that prosecutorial 'success' means a 100 per cent conviction rate '“ a system that is working sensibly has to produce a good tranche of acquittals, if only to demonstrate that juries retain the power of independent thought. But no one sensible would argue that the vast majority of complainants of rape are giving false evidence and deliberately putting themselves through the process out of spite. Something is going wrong, and the ever-present risk is that the government will, when capitalism is safe again, and they have time on their hands, bring in new legislation to right it.

Recent ideas have been a proposal to give the prosecution a right to call psychological evidence to explain behaviour such as not reporting offences quickly enough, or a dilution of the burden of proof in rape. Before embarking on yet more 'reform' perhaps the Ministry could look rather closer to home, at the investigation process and the nature of a criminal trial.

Juries are immensely fair minded '“ this is, after all, what they are for. They hesitate before convicting anyone on the word of one other person '“ it would be a useful exercise to compare the rape statistics with other cases where the only evidence was that of one prosecution witness. And because of the private nature of sexual crime, there will not be witnesses to the unconsensual act, so ancillary and collateral evidence becomes more important.

And the police fall down on this all the time: they run about collecting evidence to 'forensicate' '“ and then, either because of budget cuts, complacency or sheer stupidity, do not do it '“ leaving evidential holes in their case, and valid points to be made for the defence.

Process of investigation

And it goes further '“ juries, who may be after all unconsciously prejudiced against women, need to understand that the process of investigation has been fair to the defendant so that they give the complainant a fair hearing: the police duty to investigate lines of inquiry whether they lead to or away from the suspect is fatally ignored in rape cases. Juries become very stony faced when police officers stumble through questions about things they have left undone that might have helped the defence. And it might be a good idea to rethink video interviews of complainants; juries see the film of the complainant in the comfy room with the nice police lady who never challenges her but merely parrots her words back to her, rarely asking the right questions '“ it has no immediacy and no rigour '“ do they take it as seriously as they do oral evidence in front of them?

Who wins and who loses in these cases is a wider question than which brief came second.