As a criminal defence lawyer who regularly acts in serious sexual offence cases, I believe there is value in explaining what protections already exist, why they matter, and how the justice system seeks to balance two fundamental principles: the right of complainants to be treated with dignity and respect, and the right of defendants to a fair trial.
These principles are not in conflict. Indeed, a fair and effective justice system depends upon both.
One of the challenges in public discourse is that criminal trials are often viewed through the lens of individual cases. High-profile allegations understandably attract intense media scrutiny, and reporting can condense weeks of evidence, legal argument and judicial decision-making into a handful of headlines. In the process, important nuance can be lost.
The first misconception is that complainants are left without meaningful protection when giving evidence. The reality is very different. Over recent decades, Parliament, the courts and prosecutors have introduced extensive safeguards designed specifically to support complainants in sexual offence proceedings.
Many complainants are entitled to special measures, including giving evidence from behind a screen, by live video link, or through pre-recorded evidence. Courts routinely take steps to reduce unnecessary distress and anxiety. Judges have broad powers to control questioning and intervene where cross-examination becomes inappropriate or unfair. Prosecutors and judges receive guidance and training on the particular challenges that arise in sexual offence cases.
Perhaps most significantly, evidence relating to a complainant’s previous sexual behaviour is heavily restricted. Under section 41 of the Youth Justice and Criminal Evidence Act 1999, such evidence is generally inadmissible unless strict legal criteria are satisfied. Defence lawyers cannot simply explore intimate aspects of a complainant’s history because they believe it might be advantageous to do so. Applications must be carefully argued and judicially approved.
This framework exists for good reason. It reflects a growing recognition that sexual offence complainants should not be subjected to unnecessary intrusion or questioning based on outdated assumptions and stereotypes.
At the same time, public discussion of these issues can sometimes oversimplify the concept of relevance. Questions occasionally arise in media debates about whether defence lawyers should be permitted to ask a complainant about matters such as alcohol consumption, communications between the parties, or the circumstances leading up to an alleged incident. Presented in isolation, such questions can appear troubling, prompting an understandable response: why should that matter?
In many cases, it may not matter at all. But relevance in a criminal trial is rarely determined by the subject matter of a question alone. It depends upon the specific facts of the case and the issues the jury must decide.
The purpose of cross-examination is not to promote victim-blaming or perpetuate myths about sexual offending. It is to test evidence. Sometimes that may require questions that appear uncomfortable when removed from their wider context. The real issue is not whether a particular topic can ever be raised, but whether it is genuinely relevant, proportionate and necessary to the determination of the facts.
The distinction is important because there is a danger that legitimate scrutiny of evidence becomes conflated with improper reliance on stereotypes. Modern criminal courts are well aware of this risk. Jurors are routinely directed to decide cases based on evidence rather than assumptions. Prosecutors are given guidance addressing common rape myths and stereotypes, and judges play an active role in ensuring that prejudicial arguments do not influence proceedings.
Trial strategy is often difficult to assess from media reports alone, and lawyers should be cautious about commenting on the conduct of specific cases. However, it is reasonable to ask whether continued professional education on rape myths, victim experiences and trauma-informed practice could further strengthen confidence in the justice system.
Another concern is the risk of reactive policymaking. High-profile cases often generate calls for immediate reform. Political leaders understandably come under pressure to demonstrate action, particularly when allegations involve prominent individuals or attract widespread public attention.
Yet criminal justice policy should not be developed in response to headlines alone. Changes to evidential rules, procedural protections or defendants’ rights can have profound consequences. Reforms introduced in haste may create unintended difficulties that only become apparent once they are tested in real cases.
The challenge is to remember that victim protection and fair trial rights are not competing objectives. A system that sacrifices fairness risks undermining public confidence and increasing the likelihood of miscarriages of justice. Equally, a system that fails to support complainants risks discouraging victims from seeking justice at all. The goal must always be to achieve both.
Perhaps the most important lesson emerging from current discussions lies elsewhere. Many complainants who speak publicly about their experiences are not solely seeking punishment. Often, they describe a desire to be heard, believed, respected and taken seriously. They want acknowledgement that their experiences matter.
The criminal courts are designed to determine guilt or innocence. They are not always well equipped to address every emotional or personal need that may arise from traumatic experiences. That is not a criticism of the justice system; it is simply a recognition of its purpose.
As we continue to examine how sexual offence allegations are investigated and prosecuted, it may be worth considering whether additional mechanisms, either within or alongside the criminal justice process, could help meet those needs. Doing so need not compromise due process or the presumption of innocence. Instead, it may strengthen confidence in a system that must serve everyone who comes before it.
In the aftermath of major news stories, the temptation is often to choose sides. The better approach is to recognise that fairness, dignity and justice are interests shared by complainants, defendants and society alike. The most effective criminal justice system is not one that privileges one at the expense of another, but one that remains steadfastly committed to all three.
Rebecca Smart is a criminal defence lawyer at Payne Hicks Beach specialising in serious and complex criminal litigation, including sexual offence cases. For further information to speak to Rebecca Smart, please telephone 020 7465 4300.
