Criminal justice

Defendant's rights are put in the dock

On 22 August 1996 Ralston Edwards was convicted on two counts of rape.

He defended himself in court and put his victim, Julia Mason, through six days of gruelling cross-examination.

Mason, who waived her right anonymity in order to publicise the alleged abuse of process, said after the trial: “I feel like I have been raped twice: once in his filthy den and once in front of judge and jury in a British court of law.”

Women's groups which have campaigned for many years about the inadequacies of the current rape laws are supporting her call for a change in the law to prevent a defendant from cross-examining his victim.

However, others argue that removing the right of an accused person to defend himself would be an erosion of civil liberties and might be overturned by the European Court of Human Rights.

Despite these arguments, there is already an exception to the rule. In 1991, the Criminal Justice Act removed the right of suspects in child abuse cases to cross-examine their alleged victims. Even barristers must now cross-examine children by means of a video link in another room.

In fact, the committee that made the recommendations on the cross-examining of children proposed that the use of video links in court should be extended to include adult sex crime cases.

The Edwards trial has provoked particular public outrage because many believed Edwards was using his right to defend himself in order to get a sadistic kick out of further humiliating his victim. This outrage was compounded when, after his conviction, Edwards' lengthy sex crime record was revealed, including the fact that he had previously successfully defended himself in court on a charge of rape.

Like the cruel and unnecessary practice of focusing on a victim's previous sexual history, the Edwards' case exposes an area of the law covering rape which is particularly vulnerable to abuse.

Feminists for many years have argued that the criminal justice system is particularly ineffective in convicting men of rape. Recent studies have shown that only one in 12 women who have been raped report it to the police. Of the cases reported about 50 per cent are dropped between the report and committal stage. Of the rape cases that actually make it to trial, only 60 per cent result in conviction.

Rape and other sexual offences are significantly different from other crimes in their impact on the victim. Women who have been raped often find it hard to tell even their closest friend. It is a common response for a victim to feel guilty and somehow partly responsible for the attack on her, especially when the attacker was an acquaintance. Yet how many victims of theft or mugging would feel ashamed and think twice before reporting the crime?

Harriet Wistrich is a founder member of the Justice for Women Campaign and a trainee solicitor.

“Whatever the verdict, the publicity will crucify him”

On the morning the Daily Mail splashed Julia Mason's harrowing account of her six- day cross-examination by Ralston Edwards, the man convicted of raping her, across its front page, I was working on another rape case.

The defendant in this case I will refer to only as 'Smith'. Unlike Edwards, Smith is a quiet, sensitive young man of good character with a high-profile job. Yet years after a date he has been accused of date rape. There is no corroboration and, of course, there are no witnesses. Smith's credible defence is consent.

He faces an unrelenting nightmare. If convicted of the charge he faces ruin and a long brutalising prison sentence. It is a question of whether the jury will believe him or the alleged victim. The jurors have to rely on the impressions they form of the protagonists in the alien environment of a courtroom. But whatever the verdict, the publicity will crucify Smith.

Mason and Smith find themselves unlikely allies in a campaign to change the law. They share a belief that the innocent should be shielded from destruction by the process intended to protect them. They rightly feel that rape trials are different from other cases.

The actus reus, sexual intercourse is, when consensual, an important part of human life. It happens in improbable places with improbable partners and without witnesses. Games are played by sexual partners and strong but inconstant feelings come into play. Consequently, only the participants ever know the whole truth.

A rape victim is frustrated by the need for objective evidence and the trial makes her feel as if she has been raped again in court. So, can the system be improved? Edwards could not be denied the right to represent himself. But a screen could easily have been erected to shield Mason from direct contact with him in court.

We can also stop the Press prematurely destroying the man I am representing. Mason already has this protection and so should Smith, unless convicted.

And we can introduce the Scottish verdict of “not proven”. Failed complainants could walk away without being branded liars, and Smith could be tried in a more rational framework.

James Saunders is a solicitor who specialises in criminal practice.

“The answer lies in judicial control”

No one can feel anything but sympathy and compassion for the victim who was subjected to the harrowing ordeal of a six-day cross-examination by the man who had raped her.

It is an understandable reaction to think that something must be done to prevent this ever happening again. But justice is never served by a knee-jerk reaction. If there is to be a change in a citizen's fundamental and time-honoured right to defend himself, it should not be done while emotions are running high.

Rape trials are always charged with emotion. Giving evidence is traumatic and deeply distressing, which is why alleged victims of sexual crimes are given a greater degree of protection than victims of other crimes. The shield of anonymity helps, as does using screens in court to prevent eye contact between victim and defendant.

Professional ethics and the code of conduct provide strict rules for advocates in the conduct of the defence. The judge has a duty to ensure cross-examination is restricted to the relevant and admissible.

But the objective in a rape trial is exactly the same as in any other, namely that the trial should be fair and justice should be seen to be done. It would be absurd to presume all alleged rape victims are telling the truth and all defendants are guilty. The burden and standard of proof in a rape trial is no different from any other trial.

Justice demands that those accused of serious crime have the right to be represented. The Criminal Justice Act 1991 has already made inroads into that principle in the case of children, but this must not be extended to other alleged victims.

The vulnerability of witnesses is not restricted to alleged rape victims. If vulnerability alone were the criterion many victims of assault, blackmail, burglary, robbery and fraud would also fit that category.

The key lies in judicial control, just as it does in any trial. The judge should give appropriate assistance to an unrepresented defendant. But that does not mean that the defendant should be given unfettered licence to ride roughshod over the rules of evidence.

Perhaps two observations are of interest in the R v Edwards case. First the jury could have had no better opportunity of assessing the defendant. Second, as soon as the judge intimated she was considering a life sentence, the defendant asked for and was granted legal representation. He would have been wiser to have done so sooner.

Nicholas Price QC is a barrister at 3 Raymond Buildings.