Defence Counsel: Home Office report warns of 'subtle and devious tactics'

A solicitor who campaigns for women's rights in the criminal justice system called on barristers to comply with a 'basic standard of behaviour' this week, as a Home Office report claimed that defence counsel are using 'devious' methods to circumvent legislation designed to prevent a victim's sexual history being aired in court.


A study of 23 trials commissioned by the Home Office revealed that sexual history evidence was heard in three-quarters of cases, despite provisions in the Sexual Offences (Amendment) Act 1999 designed to limit its use.


The report said that defence lawyers were deploying 'subtle and devious tactics' to raise doubts in the minds of judges and juries. It said that 'highly specific questioning' on sexual history was 'usually brief and to the point'. However, it noted that 'in at least one case in which an acquittal took place, the complainant was relentlessly questioned about her sexual history.'


The study found that barristers were often failing to comply with the Act because they were not making a written application to the judge before questioning the complainant on sexual history. Where applications were made, they were almost always allowed by the judge.


The study also noted that 'some defence counsel appeared to time their applications to create the most pressure on the complainant', by submitting them late in the day.


Members of the bench were 'inconsistent' in their understanding and interpretation of the relevant law, the report found.


Harriet Wistrich, a solicitor at City firm Birnberg Peirce & Partners and co-founder of campaign group Justice for Women, said: 'Defence lawyers will use devious methods to try to undermine a victim. There is a great temptation to do that. We need defence lawyers to be more ethical, and prosecutors and judges to be more rigorous.


'There ought to be some basic standard of behaviour from lawyers. Just because they are able to get around the rules and get away with it, that is not a reason to do it. It is an appalling state of affairs.'


She added: 'We need the prosecution to be more rigorous, and object to inappropriate cross-examination.'


Bar Council chairman Stephen Hockman QC rejected claims that barristers were subverting the goals of legislation. He said: 'The allegation that barristers are motivated by deviousness in their interpretation of the legislation devalues an interesting and useful report.'


Mr Hockman added: 'I hope that complainants in rape cases will not be unnerved.'