Gordon Jackson QC defends cross-examination against judicial criticism

Gordon Jackson QC has joined Brian McConnachie QC in responding to the Lord President, Lord Carloway’s criticism of defence lawyers in sexual offence trials.

Writing in The Herald today, Mr Jackson said defence agents should be able to “conduct the trial without constantly looking over their shoulder and worrying about their own position”.

Echoing Mr McConnachie’s comments in Scottish Legal News yesterday, the QC said: “Of course, a witness should not be insulted or harassed and a judge is fully entitled to stop that happening.

“I support the proposal that a complainer has the right to be heard when the defence seeks her medical records; all well and good but there also seems to be an underlying suggestion that, nowadays, counsel regularly or generally cross-examine an inappropriate manner.

“That may happen on occasions but it most definitely is not the norm. Many lines of questioning must, in any event, be authorised in advance by the judge.”

Mr Jackson also said he was not aware of “questions during a trial that are irrelevant and designed to upset and insult the witness”.

He added: “If, however, that is the case and judges are not doing their job properly then I assume Lord Carloway himself can deal with that issue.”

“Defending and cross examining in such trials is not easy.

“The advocate is an officer of the court but is not an intermediary. His or her role in an adversarial system is to properly and robustly represent the interests of the accused and to do that fearlessly.”

Lord Carloway told Rape Crisis Scotland last week that: “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?’”

Writing in SLN yesterday, Mr McConnachie agreed with Lord Carloway that complainers should not be cross-examined in a way that “crosses the boundaries of aggression or hostility”.

Indeed, he went further, saying that no complainer in any case should suffer such cross-examination – not just those in sexual offence cases.

Defending cross-examination as it is practised he said: “The purpose of a trial (of which cross examination is an important part) is to determine whether or not the complainer is in fact a victim and provided that the cross examination stays within the established boundaries it is the only proper way to test the evidence.”

He added: “It is difficult to avoid the conclusion that this call for protection stems from some notion that because it is a sexual offence then somehow the evidence must be true.”

Mr McConnachie also robustly defended his cross-examination in Dreghorn, the case for which he was criticised by Lord Carloway.

He said: “The learned trial judge was a very experienced judge who at no time admonished either the prosecutor or the defence for the manner in which the trial was being conducted. Indeed the only person who was admonished was the witness who was instructed that the questions were perfectly proper and that she should answer them. This was in my 30 years’ experience as a lawyer a unique case and not one which should be used in any way to shape the structure of or lead to any curtailment of cross examination.”