Counsel in rape trials could be required to have certain lines of questioning pre-approved by the judge under proposals floated by the Law Commission today. The idea appears in a consultation paper published to counter the effect of 'myths and misconceptions' in sexual offences trials.

The consultation paper states that barristers must ask questions that are relevant to the case. However, a particular line of questioning could be relevant in one case but irrelevant in another. ‘For example, if a complainant was asked why they waited for two weeks to report an offence to the police, that would be irrelevant. Evidence shows that lots of people delay reporting an offence. Delay doesn’t affect whether the report is true or not,’ the consultation document says.

‘However, sometimes a question like that could be relevant. For example, if the defendant says that the complainant has made up the allegation because they were angry after a fight, and that was when they made the allegation. The defendant’s barrister could ask why the complainant waited for two weeks to go to the police.’

Relevance should remain the threshold, the consultation paper suggests – however, there are several ways this could be encouraged, including ‘a requirement for judges and counsel to discuss lines of questioning before the trial, which might involve the judge approving of certain lines of questioning or restricting others’.

Other proposals include giving complainants the right to participate in applications relating to their personal records or evidence of their sexual behaviour, and access to independent legal advice and assistance.

Law Society president Lubna Shuja said: 'Criminal trials depend on the participation of complainants, so it is vital criminal justice agencies and the courts ensure their interests are protected and their experience in the trial process is as trauma-free as possible. But the fundamental right to a fair trial of the defendant must also be ensured and it is heartening to see the Law Commission recognises this.'

The commission was asked by the government to review the law, guidance and practice relating to the trial process in prosecutions of sexual offences and consider the need for reform to improve the treatment of complainants while ensuring that defendants receive a fair trial.

The consultation closes on 29 September.

 

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