Defence questioning must respect victims' rights, Carloway warns

Defence lawyers should show more respect for the rights of witnesses making allegations of sexual assault, and trial judges should intervene where cross examination strays beyond proper bounds, the Lord Justice Clerk has stated in a new criminal appeal decision.

Lord Carloway, sitting with Lord Malcolm and Lady Cosgrove, made his remarks in refusing the appeal against conviction of Duncan Begg, who was sentenced to eight years' imprisonment last year after being found guilty of eight charges of assault and rape against two women committed during the 1990s.

Rejecting a challenge for the accused that the verdict was unreasonable in that the evidence for one of the complainers could not have been regarded as credible, when a guilty verdict had been returned in only four out of 17 charges involviong her, the judge expressed his concerns at her treatment by both Crown and defence counsel over the three days she spent in the witness box.

He commented: “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.”

The complainer's examination had lasted for many hours and must have been a “substantial ordeal”. Her cross examination, by defence counsel Brian McConnachie QC, had then begun with the comment “You are a wicked, deceitful, malicious, vindictive liar?”

Lord Carloway described this as “a direct salvo rather than a question, presumably designed to destabilise the witness”, and the cross examination that followed, which lasted for hours, as “conducted in a manner apparently calculated to break the will of the witness, which at times it undoubtedly did”.

He added: “Due regard must be had to the right to test a witness's evidence by properly focused cross examination. That right, however, does not extend to insulting or intimidating a witness.

“The court must be prepared, where appropriate, to interfere when cross examination strays beyond proper bounds both in terms of the nature of the questioning and length of times a complainer can be expected to withstand sustained attack.”

The trial judge was “entitled to stop questioning if he considers it to be 'protracted, vexatious and unfeeling'. If a proper balance cannot be achieved by the representatives of the Crown and defence, the court may have a duty to intervene”.

Thomas Ross, President of the Scottish Criminal Bar Association, defended Mr McConnachie, who he described as one of the most experienced and skillful cross examiners. Cross examination of the complainer in a rape case was the most difficult advocacy exercise, and witnesses' emotions ran high. “On top of all of that,” he continued, “you have the heavy responsibility of representing a citizen who claims to be completely innocent. In short, if you do not take the cross examination to the absolute limit of what can be achieved, you may be contributing to an innocent person going to prison for upwards of five years.”

On the present case Mr Ross commented: “I don’t think that it is possible to judge the appropriateness of the cross examination simply by reading the transcripts of the evidence, but there is certainly no doubt that the complainer’s conduct merited intervention by trial judge. If there was material to suggest that the complainer’s conduct was being exaggerated in an attempt to influence the jury in her favour, then trial counsel was almost bound to put that suggestion to her for comment. Lord Carloway made much of the time that the cross examination took, but two people were involved in that process – apparently the behavior of only one merited intervention by the trial judge.”

He added: “The Scottish Criminal Bar Association of course recognises the right of the Lord Justice Clerk to comment upon matters of professional practice. That said, it is extremely important to recognise also that our members perform this extremely difficult task every day, under the heavy weight of clients' expectations, in a manner that respects the dignity of the complainer AND the right of the accused to a fair trial.”

Concluding, he said his members continued to have the utmost respect for Mr McConnachie.

Click here to view the appeal judgment.

Click here to read Mr Ross's response in full.