Who really knows what goes on in our criminal courts? A few people watch the occasional trial, friends of a defendant might attend to give them moral support, and an occasional academic may study half a dozen cases. But otherwise there is nobody there to see if our courts are just or efficient, or to see how they serve their local public. The Police, the CPS and the other criminal justice agencies are overseen by professional inspectorates, but remarkably nobody inspects or oversees the courts.
The judges preside over trials and determine points of law. In the course of that they influence how police, CPS and barristers behave during criminal cases. Her Majesty’s Courts and Tribunal Service administers the courts and they and the judges decide which cases are listed when and where. Together, their impact on justice and on the public involved with the courts is immense.
Elected Police and Crime Commissioners have twin duties under the 2011 legislation which set them up: to ensure that both the local police service and the criminal justice system are efficient and effective. We hold the police budget, can appoint and dismiss the chief constable and must consult the public on a Police and Crime Plan which the force must deliver. But PCCs have no power over local justice. The CPS and the Courts work to national performance targets and the local areas they serve have little influence over their operations. This is a particular problem since in 2015 PCCs were made into “local victims champions” and started to come into close contact with victims of crime, who often say that the criminal justice system does not look after them.
So what are we to do?
There is an increasing case for the administration of justice to be devolved. Accountability shouldn’t stop at the police. In the meantime I thought it seemed sensible to watch some cases at our local Crown Court to see what we made of how they were working.
We decided to watch rape trials. 85,000 adult women and 12,000 adult men are raped in England and Wales every year but only about 15 per cent make a complaint. Many are discouraged by the courts’ reputation for putting the victim on trial.
There has been much hard work, in recent years, to support victims and improve outcomes. The CPS has specialised lawyers and the judges have a portfolio of directions to warn juries away from rape myths. Labour legislation in 1999 slashed the use of allegations about the complainant’s sexual history and police now work with rape crisis centres to gain complainants’ confidence. All this has encouraged a 123 per cent increase in complaints in the past five years but the charge to conviction rate – in which the courts’ role is central – went up by only one percentage point last year, from 56.9 to 57.9 per cent. So rape cases remain challenging for courts, which means that studying them should yield interesting observations of how our legal system functions.
But who should do the observing? Since elected police and crime commissioners serve the public, the best people, I thought, are – obviously – the public themselves.
We advertised for volunteers, interviewed applicants and asked the CPS to train the team of 12 who went forward. Together we worked out a questionnaire which followed the course of a trial and sent it to our senior judge to approve. The observers sat, usually in pairs, on a rota basis in the public gallery watching every case from start to finish, as inconspicuously as possible to avoid any impact from their presence on the case itself. Some observers wrote contemporaneous accounts, others made notes during gaps or at the end of the day. When the case concluded, they emailed us their completed questionnaires and went back to their lives until their next rota session. One is a retired court legal adviser, one a Community Psychiatric Nurse, two are academics, one a teacher; they are nine women and three men. Their sole purpose was to watch. They had no axe to grind, no partiality. As far as we know none of them had met any of the other observers before they started their work – a bit like a jury.
They watched 30 rape trials at Newcastle Crown Court, between January 2015 and June 2016. Their report is called ‘Seeing is Believing’. By watching systematically, from outside the local criminal justice culture, they saw what participants in the process will not have seen.
There were some simple information gaps. ISVAs – the professional advisers for rape complainants – were being separated from long-term clients at the critical time of giving evidence. We thought that should be raised quickly and it seemed nobody had understood the professional nature of the role. Now that has changed and the court will usually let ISVAs support their clients throughout the trial. We hope this isn’t a pyrrhic victory because ISVA funding looks currently under threat.
In ten of the 30 cases, the prosecution counsel, contrary to long-established guidelines, did not speak to the complainant prior to the trial. There were 11 trials where the complainant’s sexual history was put before a jury, three times without notice and four through an application immediately before, instead of weeks before, as the rules require. In a few cases, the police seemed not to have gathered supporting evidence which seemed to be available. Judges were praised for using their myth-busting directions effectively, often at the start of the trial, though in six cases where rape myths were definitely used the judge, bizarrely, said nothing to the jury about them.
We have been lucky that court staff, CPS and the judiciary have all supported the project and all will be discussing the report with us in the weeks to come. The Ministry of Justice, senior judges and the Justice Select Committee have all had copies and some meetings are planned.
We don’t pretend that this is a sample, a survey or a contribution to scientific literature. It is what it is; what 12 free citizens saw and reported about their local Crown Court. But this depth of trial data now looks important for making sure that rules are kept and practice is consistent across the criminal justice agencies in local courts. It should start to be collected as routine.
The observers will return to the crown court next year.
Vera Baird is the Northumbria Police and Crime Commissioner. Read Seeing Is Believing here.