On 21 September, the government announced that each Crown court in England and Wales will have a specialist courtroom to deal with rape and sexual offence cases. This will be implemented over two years and was welcomed by many.
In June, the backlog for jury trials in the Crown court had reached 80,829, with some bail cases fixed for 2030. The latest statistics indicate 15,373 of these are awaited trials of alleged rape and serious sexual offences.
These are some of the most sensitive and difficult cases to be heard. They invariably involve issues of trauma and vulnerability, requiring specially trained judges, prosecutors and defence lawyers.
They also involve special directions to juries about guarding against myths and assumptions concerning sexual offending, as well as complex legal directions on the trial process and the many different sexual offences themselves.
In reality, such trials are regularly heard daily at each of the 70 Crown courts, often in multiple courtrooms.
For both the complainant and the defendant awaiting trial who have often already waited for some time to see if the case would be charged, this will bring further stress.
The announcement of these courts is of course separate to the difficult and complex questions of how such sexual cases are brought in the first place.
Several options which feature as part of this plan are already routinely employed. No prosecution witness in such a case sits in the public area with the defendant or their possible witnesses. It is right that they do not have a separate waiting room, but they sit within the prosecution witness area and should already have separate access to the court building.
Court staff dealing with such cases have experience and training in facilitating special measures – to help a witness give their best evidence: pre-recorded first interview account, screens in a courtroom, video links to avoid a courtroom and the use of an intermediary to facilitate communication.
The announcement of these new courts comes with a newly stated commitment to ensure private waiting rooms, court staff who have had trauma training and a dedicated single point of contact at the court. These are important and welcome aspirations.
This will need to be considered in the context of the reality of courts dealing with everything from shoplifting to murder, and where those who are in custody awaiting trial by law have to have their trials listed considering time limits which exist on keeping someone in prison when they have not been convicted. Those limits are often extended because a judge or courtroom is unavailable.
The most striking aspect of the new announcement is the commitment to a fixed trial date for all such sexual offence cases. In other words, not an intention but an absolute.
The judiciary already tries to ensure that these cases are given a fixed date rather than being placed in a rolling ‘warned’ list for trial, but that is not always possible. Some cases also ‘float’, meaning they are listed on a particular day in the hope that a courtroom becomes available.
In terms of cutting waiting lists and achieving listing certainty, there can be discussions about alternatives to prosecution and diversion from the criminal justice system. Then, even if a court has up to 20 courtrooms, not all open every day. There has always been the issue of permission for the number of sitting days, which can be restricted.
In April, noting the current backlog, the government removed the restriction on sitting days for this financial year in the hope that up to 113,000 days will be available.
In other words, the opening of courtrooms needs funding, while also acknowledging the reality of court buildings that often need modernisation or repair.
Delays can also be caused by prison defendants arriving late to court. One prison van will almost always service multiple court centres often miles apart.
Is there anything else to be done? Every court centre has specialist murder judges, and multiple full-time and part-time rape judges. Several specialist court centres already deal with terrorism, fraud cases, or trials fixed to last many months.
In September 2022, the use of the section 28 procedure – pre-recorded cross-examination – was extended from witnesses under 18 or with cognitive/ psychological vulnerabilities to intimidated witnesses, including in sexual offence cases. This means that witnesses can, in fact, give the totality of their evidence months or sometimes a year before the rest of the trial takes place. Will greater use of this help to further the aims of this announcement?
An assessment will need to be made of whether these measures will significantly deal with the delays or, in fact, whether rape and sexual offences actually merit their own specialist court centres where every courtroom deals with such cases daily. Finally, if such specialist centres are created, a further question arises: should other difficult, sensitive cases such as alleged domestic violence be included in such provisions?
Maryam Syed KC is a barrister at Church Court Chambers, London
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