Lord Carloway calls for alleged rape victims to be protected against aggressive cross-examination



Lord Carloway

Lord Carloway has called for alleged rape victims to be safeguarded from aggressive cross-examination in court.

The Lord President said judges and prosecutors were reluctant to stop harsh cross-examinations which some charities claim discourage women from reporting the crime.

Speaking to Rape Crisis Scotland, Lord Carloway said: “It is the duty of the court to stop abuses of the privilege of cross-examination. The dignity of the witness has to be protected and repetitive questions, insulting questions, have to be eliminated.

“The judge has got a duty to say to the prosecution at some point, ‘Are we actually going to get anywhere near the incident here instead of asking the witness what she’s had for her supper before she went to the pub?’”

Scotland’s most senior judge added that procurators fiscal, as well as advocates, “should be objecting” to lines of questioning they think “transgresses the line of propriety” and is simply “harassing the witness”.

In a case last year, Lord Carloway admonished an advocate over his cross-examination of a victim in a case in which appeal was refused.

He said at the time the right to cross-examination of an alleged sexual assault victim “does not extend to insulting or intimidating a witness” and trial judges should intervene where questioning “strays beyond proper bounds.

He also said in that case: “While not wishing to be over critical of the advocate depute or defence counsel for the manner in which this case was conducted, given the latitude which still seems to be afforded in practice in cases of this type, it has to be said that both the manner and length of examination and cross examination give cause for concern in relation to the treatment of a vulnerable, or indeed any, witness testifying in the criminal courts.”

Sandy Brindley, the national co-ordinator of Rape Crisis Scotland, said: “Too often we hear from rape complainers that their experience of giving evidence, particularly being cross-examined, can feel as traumatic as the rape itself.

“At times rape complainers can feel that no one is protecting them in court.”

Claire Mitchell, vice-president of the Scottish Criminal Bar Association (SCBA) said: “No judge ought to allow examination by the crown or cross-examination by the defence which is irrelevant to the matters at issue or designed to upset a witness.

“The members of the Scottish Criminal Bar Association carry out a difficult and demanding job and we prioritise continual professional training for our members on issues such as ‘vulnerable witnesses’ in order to ensure that anyone accused of a criminal offence receives a robust defence to ensure a fair trial.”