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Powers protecting rape victims from testifying in-person not being used because of time delays

Mark Fenhalls QC, the chairman of the Bar Council, said the “Section 28” rules - which are intended to spare people from the trauma of testifying at trials - were also proving hard for courts to schedule. (Picture posed by model/Gareth Fuller/PA) (PA Archive)
Mark Fenhalls QC, the chairman of the Bar Council, said the “Section 28” rules - which are intended to spare people from the trauma of testifying at trials - were also proving hard for courts to schedule. (Picture posed by model/Gareth Fuller/PA) (PA Archive)

Powers that allow rape complainants and other vulnerable witnesses to pre-record their evidence instead of going to court are being left unused because police and lawyers do not have time to prepare the cases, a barristers’ leader has warned ministers.

Mark Fenhalls QC, the chairman of the Bar Council, said the "Section 28" rules - which are intended to spare people from the trauma of testifying at trials - were also proving hard for courts to schedule.

He said that was causing delays, adding to the time between rapes being reported and prosecuted, as well as “trouble elsewhere in the system.”

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He said the result was that "the experience of most criminal barristers is that the courts are not using the Section 28 powers we already have.”

Mr Fenhalls, a criminal barrister from London’s 23 Essex Street chamber whose specialisms include murder and serious sex offence cases, added: "We should not assume that more of Section 28 necessarily works in the interests of complainants."

The pre-recording of evidence is currently allowed for rape complainants in seven Crown courts nationwide including Kingston-upon-Thames, Harrow, Isleworth and Wood Green in London.

The scheme is expected to be expanded significantly in an announcement from Justice Secretary Dominic Raab on Thursday and is supported by campaigners and others including the Victims’ Commissioner for England and Wales Dame Vera Baird.

But Mr Fenhalls said that even before the expansion practical problems meant that the intended benefits of pre-recording evidence were not always being delivered.

“The experience of most criminal barristers is that the courts are not using the s28 powers we already have,” he said in a speech at London’s Gray’s Inn.

“Why? First, because the police and the Crown Prosecution Service just do not have the time and resources to prepare the prosecution case and assemble the material that should be disclosed before these hearings can take place.

“Secondly, the courts are finding the exercise in scheduling these hearings to be causing more delay and trouble elsewhere in the system. We should not assume that more of s28 necessarily works in the interests of complainants.”

Mr Fenhalls added that a better solution would be to address the shortage of criminal barristers by raising their pay and for the government to invest more heavily in cutting the large backlog of court cases, which is hindering efforts to secure justice for victims.

He added: “The Government has made strong and clear commitments to restoring public faith in the criminal justice system by increasing the charging and prosecuting of rape and serious sexual offences.

“But we have to ask ourselves if we have the people to meet the public demand? In crime the answer is frankly ‘No’. There are not enough judges or barristers. The backlog is not just much bigger than it was before; the extra problem we face is that the composition of the backlog is far more challenging, as the proportion of complex and difficult, often multi-defendant, trials has increased.

“Attracting and keeping high quality people to work in the criminal jurisdiction is vital to the public interest, that cases be tried fairly within a reasonable period.”

Mr Fenhalls said an additional solution would be for all Court crown court trials to begin within six months of the suspect first appearing.

He said this would be likely to “vastly increase guilty pleas” and reduce the number of “complainants and witnesses who otherwise lose heart as cases are delayed for years” and give up on their fight to obtain justice.

His remarks follow a report this week by London’s Victims’ Commissioner Claire Waxman in which she warned that the proportion of rape complainants in the capital withdrawing their support for prosecutions has risen to 65 per cent.

She said the reasons included concerns about handing over their mobile phones and the accompanying data and the length of time taken to bring cases to trial.

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