Children and Vulnerable Adults: Abuse

Lord Thomas of Gresford Excerpts

Thursday 26th June 2014 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, I was a member of the panel under the chairmanship of Sarah Champion MP, sponsored by Barnardo’s, inquiring into the effectiveness of current legislation for tackling child sexual exploitation and trafficking. My particular concern was the way in which the judicial system dealt with complaints. We heard evidence from members of the Bar who were highly experienced in prosecuting and defending charges brought under the Sexual Offences Act 2003. They identified a number of issues.

One was training and specialisation of the judiciary. A judge plays a crucial role in setting out ground rules at the start of a trial. He determines what special measures should be employed for putting a complainant at his or her ease; for example, by the use of remote television. An experienced judge will decide whether a registered intermediary would be helpful. In particular, he may set a time limit for cross-examination. In the course of the trial he will intervene if he feels that cross-examination is too aggressive or strays too far. He should prevent different defence barristers asking the same questions over and over again. I noted what the noble Baroness, Lady Howarth, said and I think that this is not a course that is followed in all cases.

The powers of control are not generally exercised in most criminal trials before a jury because when a judge “steps down into the arena”, as we say, a jury may react badly and think that he is taking sides. The trial process may be distorted. It is also the case that in the past many judges may have had no courtroom experience of sex cases, or at least recent experience, since such cases have over the past 30 or 40 years in my experience tended to be left to junior barristers and to women, who are unhappily under-represented on the Bench. In my 35 years as a Queen’s Counsel, I can recall being involved in only three cases in which rape alone was alleged. These have usually involved the most unusual circumstances, such as the alleged rape of an 82 year-old lady suffering from Alzheimer’s. She had died before the hearing and the evidence was confined to a video of her interview.

In nearly 30 years sitting as a recorder, I tried only one case of rape and that was probably a mistake in the listing. Sensitive training of the judiciary is essential. There is such training on sexual offences cases for judges, although it has been reduced quite recently from a three-day course to a two-day one. It is now necessary for any judge who is ticketed to try these cases to undergo a refresher course every three years and there are supplemental courses on vulnerable witnesses. The Barnardo’s report concluded that,

“no judge should be assigned to try a complex child sexual exploitation case without having received such training”,

and that thought should be given to limiting those authorised to preside over sexual exploitation cases unless they had previous relevant experience of working on ordinary sexual offences cases.

With regard to the training and specialisation of advocates, Nazir Afzal QC of the CPS told us that there has been a change of mindset. The CPS has produced revised guidelines on prosecuting cases of child sexual abuse and has introduced specialist rape and serious sexual offences units embedded into the Crown Court team. Patricia Lynch QC, who both prosecutes and defends and is a tutor judge at the Judicial College, told us that her Chambers used to have a self-imposed rule that,

“you didn’t conduct a sex case until you were seven years call and 10 years for rape. Only Silks and very senior juniors did rape and serious sex cases and they were tried by High Court and Senior Circuit Judges. Now anyone can take on a sex case; Silks are deemed too expensive and there are not enough practitioners trained to do the specialist cases”.

There lies the problem. The fact is that no one wants to spend their whole career at the Bar doing this type of case. They are not well paid, are more than usually distressing and rarely of high profile. It is only in the high-profile celebrity cases that you will see Silks of standing stepping forward to do them. They generally have no experience of doing sexual offence cases generally. We called for specialist training for both prosecutors and defence counsel and recommended that,

“legally aided defendants should be restricted in their choice of representation to a panel of solicitors and counsel who have undergone specific training in CSE issues. The professional bodies should have the power on complaint to remove an individual from such a panel”,

if it were appropriate by reason of the conduct of the advocate in court.

Finally, with regard to jurors’ perceptions, all those who appeared before our panel were concerned that a jury consists of,

“people who are unfamiliar with child abuse and how it manifests itself”.

Jurors tend not to understand,

“the levels of coercion and manipulation used to control and exploit young people”.

I hope that abuse is not so widespread that it does come within their life experience. Young people tend not to present themselves as victims and become defensive, aggressive or even laugh as they give their evidence. Eleanor Laws QC told us:

“Trafficked victims don’t behave the way a jury thinks they should behave. There is a danger that the jury sits in judgement”,

not on the abuser but on the victim.

Myths and stereotypes do exist. Judges may warn the jury against making assumptions about the possible effects of sexual offences on victims and increasingly do so at the outset of a case. I proposed that members of a jury panel, before the actual jury is selected out of it, should be shown a standard and agreed video about common myths and stereotypes, just as they now see a video explaining their role as jurors. The report recommended that the Ministry of Justice should explore,

“the development of materials, either written or filmed, to better inform jurors”,

about those continuing myths and stereotypes that undermine our judicial system.

The report contains much more guidance on special measures and the possibility of pre-recorded evidence closer to the time of the offence. There are pilots under way. But the essential thing is that justice is done, for victims certainly, but for the health of society as a whole as well.