The partner at James Murray Solicitors on fair rape trials
JUDGES have admitted turning a blind eye to new laws aimed at stopping defence solicitors probing the sexual history of rape victims in court.
It is only right and proper that the judiciary exercise their discretion to do this, as it can only be in the interests of justice.
There is no doubt that giving evidence in court for rape victims can be very traumatic. But there are already measures in place for witnesses which, if successfully applied for and granted by the court, enable them to give evidence via videolink or even behind a screen.
Protection, however, should not be such that cross examination of any rape victim is not allowed. While witnesses sometimes do not enjoy the experience, it is vital cross examination takes place to ensure that the jury is aware of all of the facts and to enable them to make sure justice is done.
The cross examination of a complainant in a sexual offences case is already significantly restricted. The law dictates that the alleged victim cannot be cross examined about any previous sexual behaviour without the permission of the Judge.
To prevent a defendant from being able to contest the very serious allegation of rape against him, by denying his lawyer the right to cross examination, would be a breach of the Human Rights Act and undermine his right to a fair trial.
Not every defendant is guilty and over the years it has required solicitors' firms, such as ours, to demonstrate to the court the errors and inconsistencies in prosecution cases.
The Judiciary have acted in this way as they know that to prevent cross examination completely would open the floodgates to miscarriages of justice.
l James Murray is a partner at James Murray Solicitors