Chapter Nine: Complainers' Experiences Of The Court Process
9.1 Examination of complainers' experiences of the court process is one of the key objectives of this study. This chapter presents the findings of 4 interviews conducted with women who experienced going to court as complainers in sexual offence trials, since the inception of the 2002 Act. Although the number of women interviewed is relatively small, the interviews provide valuable insights about the experience of being a complainer in a sexual offence trial, which could not have been gleaned from any other data source. Further information regarding the methodological approach used, and the specific characteristics of the cases which complainers were involved in, is provided in Chapter Two.
9.2 Complainers were asked questions in respect of 3 broad areas: their views and experiences in the period leading up to the date of trial; their experience of the trial itself; and their current reflections on the process as a whole. Questioning in respect of these 3 broad areas centred upon understanding and awareness of the process of giving evidence in a sexual offence trial including the provisions contained within the 2002 Act, the nature and impact of questioning during evidence in chief and cross-examination, and recommendations for future policy and practice.
9.3 A number of common themes emerged from the interviews. Key issues identified by complainers relate to their lack of preparation for giving evidence, their understanding of this process and the respective roles of criminal justice personnel. These themes are illustrated here, in the complainers' own words, by using excerpts from the interviews. The evidence unearthed here also contributes to, and resonates with, the limited existing research evidence which documents the experiences of complainers in sexual offence cases in Scotland, and elsewhere.
Awareness or knowledge of the 2002 legislation
9.4 At the time of the trial none of the women interviewed were aware of the 2002 Act, or the way in which this legislation may impact on the nature of questioning or evidence introduced in sexual offence trials. As previously stated, a written application to introduce sexual history or character evidence is now required in advance of the trial. Similarly, advance notification must be given to the Prosecution if the defence to be used is one of consent.
9.5 The nature and level of information given to complainers regarding these issues merits particular attention. Informing complainers that an application to lead sexual history or character evidence has been made, or that a defence of consent is to be used, allows the Prosecution to explore the complainer's position on these issues, and allows the complainer, to some extent, to be mentally prepared for questioning of this nature.
9.6 Interviews with legal practitioners indicate that while the Crown ascertains a complainer's position on matters raised by a Defence application, this does not necessarily mean that complainers are informed that a s.275 application has been made. Some Defence practitioners expressed concern about the level of information they are required to provide about their "line" in advance of the trial, particularly in terms of the preparation which this may afford the complainer (see Chapter Four for further detail about practitioner's views).
9.7 However, none of the women interviewed were made aware of the defence to be used in their case, or the likelihood of being questioned on sexual history or character. Yet, across the 4 cases, there were identifiable examples of a defence of consent, and past sexual history and character evidence being used during cross-examination.
9.8 One complainer was aware that she could be asked questions about her sexual history because "it's what you see on TV" , and expressed her anxiety about this prior to the trial:
"I think for weeks leading up to it, I was thinking if I get the opportunity to speak, I would say this, this and this, not actually thinking that that would be the case, worrying for weeks beforehand about my past being dragged up and then obviously that not happening. Just literally no preparation, speaking to the PF once about 6 months beforehand and then that just being it, you just turn up in court and that was it." (Complainer 1)
9.9 In this instance, past sexual history was not used and the complainer might have been reassured to know that restrictions on the introduction of sexual history and character evidence are in place, or that an application to lead such evidence had either not been made or granted in her case. This complainer also indicated that knowing what the defence would be would have helped her feel more prepared for going to court:
"I definitely think [complainers] should be given some indication of what will happen in court. For example the fact that I didn't know that sexual history wouldn't be dragged up, you know, they couldn't belittle your character - things like that. They're the things I think I worried about and I think they should advise you of things like that. Even just, not, you know, these are the questions you're definitely going to be asked, but at least I think you should have some indication of what the defence is. I had absolutely no idea of what his defence was. And I don't know if they can do that, but I felt like he knew everything that I had said. He had a full year to get a defence together, a pack of lies together to get me into court and I didn't have that." (Complainer 1)
9.10 Complainer 4 also said she might have felt better if she had known about the measures to limit questioning around sexual history and character evidence:
"I didn't know any of this, see if I had known this, it would probably have made me feel a bit better about, I don't know, but just knowing the fact that that law was actually out and I was still made to answer these personal questions, it's quite frustrating." (Complainer 4)
9.11 The nature of questioning required in a sexual offence trial, combined with the limitations of the legislation, compromises any guarantee that questions of a personal or sensitive nature will not be asked of a complainer. However, responses from complainers in this study suggest that having an awareness of the legislation, particularly in relation to the implications that it may have for their own case, would ease some of the distress and uncertainty involved in the process of giving evidence. In another case, for example, the complainer reported being completely unprepared for her previous convictions dating from when she was a teenager (she was in her late 30s at trial) being brought out at the trial:
"They never told us about any of the paperwork lying anywhere and then maybe I'd have said to myself, right, that's the notes probably from [support organisation]. They never said I'd get hit maybe with my criminal convictions, nothing like that, it was a total … I walked in blindfolded." (Complainer 3)
9.12 Two other complainers described questioning around character issues, the purpose of which they were puzzled about:
"I was asked if I was married. "Well, I believe you have children? Two different partners?" This was all brought up as well. They tried to bring up about [son]………..To me it was as if I'd neglected my son and allowed him to be abused. I don't know why they asked me those questions. They asked me about my marital status - I was single then. Before this all came out, about 6 weeks before, that's when I split up with my partner and it took [son] 4 weeks to tell me what had happened. I don't know. Was it to make out because I was a single parent or something that … I don't know, I honestly don't know why they asked." (Complainer 2)
9.13 Complainer 4 had a history of self-harming behaviour which she was unaware was known to the Defence:
"Just basically because I self-harm …, they actually used that against me, like you self-harm and stuff like that and I was like well what's that actually got to do with this court room today? I'm not here because I self-harm, I'm here because something bad happened to me. I was really, really angry about that." (Complainer 4)
9.14 These complainers were unprepared for these issues being raised, and as a result of their perceived irrelevance to the case, they expressed feelings of anger and confusion about evidence of this nature being used in court.
9.15 The level of information to be given to complainers in relation to s.275 applications, in their case, has recently been examined in the COPFS Review (2006). As previously stated, the review recommends that the Crown (through Victim Information and Advice) should advise complainers of an application by the Defence to lead sexual history or character evidence, and its subsequent outcome. Where there is evidence that the Defence intends to lead sexual history or character evidence, the procognoscer should explore the complainers position with sensitivity and re-precognosce the complainers if previously unexplored issues come to light following a s.275 application. It is also recommended that the precognoscer explain to complainers why potentially distressing questions are to be asked. In view of the responses made by complainers interviewed in this study, these recommendations have the potential to alleviate some of the distress associated with giving evidence in a sexual offence trial. However, it has not been possible within the timescales of this study to evaluate the impact of this guidance.
Information about what the trial involved
9.16 The nature and level of information provided to complainers prior to the trial about the process that they would be expected to go through varied, although all of the complainers described this preparation in limited terms:
"I did go to visit the court, but that was it, I never talked to anybody." (Complainer 1)
"Really just where everybody would sit: where he (the accused) would be, where I would be; where if it was public or family, where they would be; where the Judge would be. Who would be sitting where basically. That was really all." (Complainer 2)
"When we got our citations we were just told that there would be a witness protection person on the day that would tell us, basically, when we would probably get to go into court, which I thought, well, I should only be in
court for so long because I was basically thinking things myself without anybody saying, oh no, you could be in this long or this could happen. Nothing prepared me for what actually happened on the day, you know."
(Complainer 3)
9.17 Although they had received some practical information about going to court, all reported feeling inadequately prepared for the process of giving evidence and, in particular, what the process of examination and cross-examination would entail:
"And, I just had absolutely no idea what was going to happen when I got there, and I think that, I had no idea, no doubt he was prepped by his people saying you know, act this way, look this way, you know this sort of thing, and I didn't have any of that I just had to turn up, I didn't know what his defence was, I didn't know anything, and I just, to walk into something and not entirely be sure how to react, how to even speak, I just could have done with more. Just, you know, just somebody to tell me a little bit about the best way to be, or the questions that might be asked, and the best way to answer them."(Complainer 1)
9.18 For this complainer, her lack of preparation for giving evidence left her with a sense of imbalance compared with the preparation which the Defence may have had. Another complainer was particularly unprepared for the extent of the evidence she would be required to give:
"So, to me, I think that's a main thing that people should do is get them involved with either somebody from the witness protection coming out and seeing the person and letting them know exactly what they're gonna be going through before they even agree to anything. Because the only reason I kinda knew, basically, myself what I was gonna be going through is because I'd been through a trial just before [as a witness] but it wasn't … I thought, right, it'll be the defence will stand up … the PF will stand up and then the defence will stand up and then I'll be away in about an hour or so and totally flabbergasted when the day actually came, you know." (Complainer 3)
9.19 Based on her own experience, this complainer expressed a clear desire for more support and information to be given to complainers in future:
"...But I just think that things with court, they've got to change. More information, even a support person being there, contacting you, like saying to you, right, I'm gonna … I've been assigned to you until this trial is over. This is my number, make an appointment and come and see me … because it was originally supposed to be at Glasgow High and then it got moved to Edinburgh but even then they could have got somebody from Glasgow to work with us and tell us, right, you're gonna be going in here, there's a lot of reports in there, there's a lot of stuff [relating to the case] sitting there,
they could bring out your criminal convictions but just let them go on with that, you say your piece. But we never got anything like that either." (Complainer 3)
Delays in the case going to trial
9.20 All women reported experiencing delay and uncertainty concerning when and, sometimes, where the case would be calling to court. This is something which complainers highlighted as being particularly distressing:
"That going to court was an absolute atrocity. I was told that, we had a due date for court, I was told that, something like, one of my witnesses wasn't available - I think it was one of the policewomen, she was away on her honeymoon or on holiday - the Defence wanted to put the trial back because of that and the prosecutor said well we don't need her anyway, we've got all these other people. But he wanted to put it back and so I was told that we weren't going to court on that day and it would actually be a month or so later they would get in contact with me. Then I was contacted on a Friday, this was like the Wednesday or something, then I was contacted on the Friday and they said, "oh can you go to court on Monday" and I was like "oh I don't see how, when you had put it back by at least a month, I don't understand how I can go to court on Monday." "Just leave it with me, leave it with me." Eventually at about 4 o'clock, I spoke to somebody saying "look, you haven't come back to me, I don't even know what's going on, if I'm going to court on Monday, if I'm going to court on Wednesday or if it's going to be a month. You need to come back to me." And nobody phoned me back. So I sat all weekend thinking I could be going to court on Monday and they just couldn't be bothered to phone me back. On the Monday, eventually someone did phone me and say "No you're going to court on Wednesday, but that's just your opening start date so it might be later than that but we'll let you know." By this point, I mean I was literally, I just couldn't believe that, certainly that someone hadn't even bothered to phone me back on Friday, so I was sitting all weekend. I thought the way that it was handled with people contacting me as regards with my dates was just atrocious, it was appalling." (Complainer 1)
"And I thought, oh, I'll not maybe be up today, like the police were saying to me, oh, you probably won't get called on the day that you're actually at court, you'll probably be there for a couple of days and then what will happen is … and you … a couple of days will pass and then it'll be your time to go in. So, I thought going to court that day I was like, right, okay, I'm probably not gonna even get shouted today so, it was quite dramatic." (Complainer 3)
"I had waited 2 years for it to go to trial, so like 2 and a half years so it was dead upsetting having to wait that long and then also when it came to court on my birthday and stuff like that, then it getting cancelled, I got more uptight about it, so it was, I don't know, it was just dead like stressful should I say." (Complainer 4)
In the Witness Box
Complainers' experience of examination-in-chief
9.21 All 4 complainers expressed a belief that the role of the Advocate Depute was somehow to be "on their side" or that the Advocate Depute was "their lawyer". This displays a lack of information and understanding about the role of the Crown. Only 2 of the complainers had met the Advocate Depute prosecuting their case prior to the trial, despite recognition within the Crown Office that it is good practice for prosecutors to meet child or adult vulnerable witnesses before they give evidence. The Crown Office and Procurator Fiscal Service Review of the Investigation and Prosecution of Sexual Offences (2006) acknowledges that differing perspectives around what constitutes professional practice for Advocates in this regard have been in existence. This position is clarified by the review, which suggests that: "an introductory meeting is an essential part of preparing the victim for trial" ( COPFS, 2006: 169).
9.22 The 2 complainers who had met the prosecutor prior to giving their evidence reported differing experiences of this process. For one complainer, this meeting seemed to go some way in allowing her to understand the approach taken during the evidence-in-chief:
" [Prosecution] actually grilled me more than his lawyer did because she told me "I'll do this so they don't have anything to ask." They only had very little questions, so she said "I'll ask you everything that I know that the jury need to hear and the judge" so that when it comes to his lawyer, she only had so much to ask me. I knew what [Prosecution] - I didn't know exactly what she was going to ask me - but I had an idea, so I knew what answers I had for her. I stumbled and everything because your nerves get the better, so some of the time, you were getting everything mixed up, so when it came to his lawyer, most of the hard questions had come out." (Complainer 2)
9.23 For the second complainer, the extent to which this meeting prepared her for giving evidence was more limited:
"But when I had first went into court it was like the [Prosecution], before I'd went into court he came round and told me right, just answer yes, no and any questions. I'm here to help you, basically, and I was like right, okay. Nobody told me that their lawyers were quite rough." (Complainer 3)
9.24 One of the complainers who did not have the opportunity for such a meeting indicated that it would have been helpful to have met the Advocate Depute before and after giving evidence:
"I think they [complainers] should be given more opportunity to speak to the Prosecution either before or after. I haven't spoken to the Prosecution at all afterwards and I still haven't been told that that is a possibility or I don't know maybe it is. I think the opportunity to speak with, or at least meet the person who is going to be asking the questions for the Prosecution, would be helpful." (Complainer 1)
9.25 With regard to the experience of the evidence-in-chief itself, complainers indicated that although this was less distressing than the cross-examination, it remained a difficult process. One of the main feelings expressed by complainers was that of embarrassment:
"I think I knew that he was sort of on my side if you like, but there to help me. I've never been in a situation like that before so it was quite intimidating. I remember at one point coming over really hot and feeling quite unwell and asking to sit down; I didn't feel majorly uncomfortable - a bit embarrassed - but mostly all right. I felt a bit intimidated by the amount of people that were there and the questions that they asked." (Complainer 1)
"Well there was one question - obviously I can talk about it now: it's still upsetting a wee bit, but I don't mind - and it was a question that, how can I put it, they asked me and it was something in the means of, how can I put it, it was a "blow job" but I actually had to say that sort of word in the court room. I had to say that word but I was trying to say it in another way so I didn't… but I had to actually say that for them to understand and it was quite … honestly, it was dead embarrassing to stand in front of all those people and say that. I felt "oh my God, I can't…" I did it but I just wanted to run away from the whole thing." (Complainer 4)
9.26 In response to a question about whether the evidence in chief had allowed her to explain what happened, in a way which she thought was a fair recollection of events, this complainer made the following comment:
"How can I put it, no, not really actually; I didn't feel as if I did because although he was the bad party, I felt as if I was, as if it was me that was on trial for something when it wasn't." (Complainer 4)
Complainers' experience of cross-examination by Defence
9.27 All 4 complainers reported feeling very distressed during cross-examination. This included feeling sick, angry, frustrated, embarrassed, nervous, shaky, stupid and confused. Distress was most heightened at the times when the Defence mounted attacks on their credibility, by introducing "bad" character evidence suggesting they were liars, that the allegations were false, and that they were dishonest in character. Two broke down in tears during cross-examination and the trial had to be stopped temporarily.
"But she basically was calling me a liar and I was roaring back at her. I know I was roaring at her because in that courtroom, you came from this door and right down by where the public would have sat, come past and it was him and 2 of his Reliance - I don't know - police officers with him, and this was my box here. My police escort- he was a nice big guy - he was behind me in case I collapsed or fainted. I actually held on to it there and my knuckles were red raw by the time I came out. The more she shouted at me - she wouldn't have called it shouting - but the more she put her point across, the more determined I was to, I actually roared back at her because she wasn't there, she didn't know." (Complainer 2)
"………..It was very, very embarrassing, upsetting mostly … I think I cried all the way through the trial when I was giving evidence. I managed to stop myself but then they would say something and it would kick me off again and, as I said, I marched out and then I got a break and then I went back in and then they were saying would you like another break and I was like that, no, I just want to get this over with and God man, I just wouldn't wish that on anybody." (Complainer 3)
"And they also used the fact against me that I was staying in a bed and breakfast. So because I'm homeless and I self-harm, that gives someone the right to do what they did to me? I don't think so. So at the same time I was obviously upset but I was actually angry at the way they were like speaking to me as if I was a piece of dirt. That's the way it felt honestly, and I was really angry, really angry. . . Then plus the fact - and I'm not ashamed to admit it - I actually used to prostitute myself, so that was another thing they used against me. It was all those things they were trying to use against me to make me look as if I'm just a down and out basically." (Complainer 4)
"… if that was me say, 3 year ago, I'd have collapsed in that court, I'd have clamped up and … but because I'd been to confidence building classes, building on my skills and all that, I managed to fight back. When he said something cheeky to me I said something cheeky back, you know. I didn't hide who I really was but I also didn't hide the fact that I was still paying for all the things that they had done to me. But some poor person could walk in there and God, it hit me like a ton of bricks, and there's got to be something changed." (Complainer 3)
9.28 Distress during the cross-examination related, in part, to difficulty in understanding the questions which were put to them by the Defence, and to their sense of embarrassment in answering questions of a sexual nature:
"But I just got such a fright because he was saying a question and I couldn't understand the meaning of it so instead of me answering yes or no to a question I didn't understand I'd asked him to repeat it in a different way and he said it the same way and I looked at the Judge and I said "excuse me, I feel silly but I don't understand what he's actually meaning." And she said, "can you phrase it another way for her to understand." And he said it another high tech way and he made me feel … I felt so stupid. (Complainer 3)
"…the questions they were asking me were quite, I thought, were quite dramatic the way they were treating me in that court room. It was disgusting and dreadful. I had actually to use some words of a sexual nature that quite embarrassed me in front of all those people in that courtroom and I was quite nervous as it was and I was awful shaky, so that didn't help me any more, that didn't help me. It was horrible." (Complainer 4)
9.29 On the whole, complainers did not report intervention or objection to Defence questioning by the Prosecution or the trial Judge. However one complainer did report intervention by the judge during particular points during the cross-examination:
"She intervened a couple of times and it was when … especially when he was coming out with this … he kept asking me this specific question but he was using these big words and I'd said to the Judge, "I feel as if he's trying to make me look silly" and I don't want to answer yes or no to a question that might be the opposite to what I say and I don't mean to say it but he's over the moon that I've said it so can he phrase it in another way. He would shout and she would go, "excuse me, I don't think you have to raise your voice" and then when he was going on about I was a constant liar, isn't it true you're just a constant liar and the Judge would go … and he would go on and on about being a constant liar and she would step in then. But she was a really good Judge, I've got to say that, she was." (Complainer 3)
Reflections on giving evidence as a complainer in a sexual offence trial
9.30 When asked to reflect on the experience of being a complainer in a sexual offence trial, all 4 complainers questioned whether the process had been worthwhile, or said that they would not contemplate going through the process again. Further, if someone they knew was sexually assaulted, they would recommend that they do not pursue the complaint:
"I would never do it again. If I knew this is what would happen, my advice to anybody would be, you know obviously who hasn't been dragged off the street and beaten to within half an inch of their life, I would tell them to do their very best just to forget about it. It's something I would, if, God forbid, if it ever happened again to somebody you know, I would say just get on with it. The only good thing that I know has come out of this is the fact that I'll probably never see him again and that he'll never contact me again, but I would never recommend that anybody should do it, never." (Complainer 1)
"But I mean, I'm not being funny, but see the whole thing about trials and rapes, I think it's a big joke. It's just as if … it's horrible. It's really horrible as well when you think nobody believes you, to go through that whole thing and then go through all that in the court room and you just think - what was the point?" (Complainer 4)
9.31 With regard to alleviating the distress involved in giving evidence as a complainer in a sexual offence trial, all complainers identified special measures such as the use of screens and live television links while giving evidence as important and positive provisions, even although not all complainers were offered, or accepted, these measures. The presence of a support person in court was identified as a particularly positive measure for complainers.
CHAPTER SUMMARY
9.32 Due to the small number of interviews with complainers, the views expressed here are illustrative rather than representative of complainers' experiences of giving evidence in a sexual offence trial since the inception of the 2002 Act. Nonetheless, a number of important common themes emerged from these interviews.
9.33 Key issues identified by complainers were that they felt inadequately prepared for the process of giving evidence, in that they had a lack of information about what this would entail in both general terms, and in terms of specific issues which were raised while they were giving evidence. Complainers indicated that it would be helpful to be aware of these issues, and to meet the Advocate Depute prior to giving their evidence.
9.34 Complainers identified questioning around "bad" character evidence during cross-examination as particularly distressing, and some complainers had further difficultly in understanding the relevance of specific issues which had been raised (e.g. marital status, self-harming behaviour).
9.35 The level of relevant information provided to complainers about the provisions contained within the 2002 Act has been highlighted as an area of particular concern. The COPFS Review of the Investigation and Prosecution of Sexual Offences (2006) has made a number of positive recommendations in this regard. However, as yet, it is too early to evaluate the implementation of these recommendations, and the subsequent impact they may have on complainers' experiences of preparing to go to court, and giving evidence in a sexual offence trial.
9.36 Since complainers in this particular study were only interviewed in respect of cases that went to trial, it is not possible to determine whether concerns about the possibility of past sexual history or character evidence act as a deterrent to making a sexual offence complaint, or pursuing this complaint within the legal system. This is an area which would benefit from further research.