The trial attracted substantial media comment as the result of the nature and extent of the cross-examination of some young witnesses, a number of whom gave evidence over many days. At one point a complainant was asked if she repented of her sins. Another was asked: “Looking back now are you proud of the bad things you’ve done in your life?” A third was asked to read out loud every detail in the statement she had made and retracted of sexual abuse against her stepfather. Her anguish was plain. She maintained the truthfulness of her allegation but said she was trying to protect her mother from being hurt.
In the first trial, as prosecution counsel I warned the court that the length and nature of the cross-examination of one teenager risked bringing the justice system into disrepute and said, “I’ve never been in a trial where a young witness has been in the witness box for so long. There must come a point at which the questioning ceases. She’s been called a liar for day upon day upon day.” At the retrial concerning the two most prolifi c off enders, HHJ Thomas QC who had not been the original trial judge stated, “The way things went last time is just so wrong that we should all be very ashamed that our justice system allowed it.” That trial resulted in the conviction of both defendants, following which five of the remaining seven defendants entered guilty pleas.
The Chalice investigation revealed that many of the victims led what some would view as chaotic lives and made lifestyle choices which meant that there was a large amount of material supposedly reflecting adversely upon their general character, truthfulness and reliability. One witness made a false complaint of rape against a non-defendant during the course of the trial process and at least two others had made previous untruthful sexual allegations.
The case brought into sharp focus the tension between a defendant’s right to a fair trial and the responsibility of the criminal justice system to minimise the damaging effect of the trial experience upon an already vulnerable witness. It was one of the catalysts for the CPS to review the approach to be adopted by prosecutors to the prosecution of sexual offences and also provoked a long overdue debate about the extent to which witnesses can legitimately be questioned about their wider character and behaviour in order to test the credibility of their actual complaint.
Accepting that credibility is a proper area for defence questioning is not to acknowledge that each and every defence advocate is entitled to cross-examine upon each and every issue relating to credit
On 17 October, after a consultation process, new Guidelines in Prosecuting Cases of Child Sexual Abuse were issued. Not unusually, the investigation had begun not with complaints from the actual girls themselves but because of concerns voiced with increasing volume by worried parents, health and social service agencies and schools. Complainant attitudes therefore included the uninterested, the mildly uncooperative and the positively adverse to the investigation. It is curious irony, however, that the case was to attract so much media attention because of the attack made upon the credibility of witnesses who had not sought to make a complaint and did not see themselves as victims.
Many of the victims in Operation Chalice had come into contact with the criminal justice system as off enders, faced exclusion from school, received intervention from social services and were not always honest and reliable historians. It was therefore both legitimate and expected that the defence would challenge the reliability and truthfulness of a specific complaint by reference to a witness’s wider reliability and truthfulness. Complainants were highly vulnerable to interference from defendants and their associates, as they remained resident in the environment in which the off ending occurred, and had developed patterns of behaviour which did not end simply as a result of the physical absence of the defendants in the post-charge pre-trial period.
Despite stringent bail conditions, one defendant met one of the complainants on a number of occasions and encouraged her to retract her complaint against him and to encourage others to follow suit. The police therefore had to establish relationships of trust with, and provide support to, complainants whilst awaiting trial. While that contact was carefully controlled and documented with regular disclosure reviews occurring, it raises real questions about who should deal with the care of such highly vulnerable witnesses before trial and how to manage and categorise the material which witness interactions will inevitably generate.
While recognising that within the trial process a witness’s general creditworthiness as demonstrated by her wider behaviour must be a wholly legitimate area for defence investigation and challenge, and this refers to all behaviour prior to trial, in 2011 each defence advocate was permitted to explore wider credibility issues with each witness. In some cases defendants with no interest in a witness whatsoever undertook to cross-examine her. Witnesses must sometimes have felt that they were being challenged by a “tag team”, all of whom were permitted to ask questions on the same topic. For some witnesses more time was spent in cross-examination about behaviour unrelated to their complaint than about the allegations which they were making.
The new Guidelines are a timely reminder to prosecutors that the focus of attention should be the complaint itself not merely when determining whether to prosecute at all but up to, and including, in the ultimate trial.
Prior to trial, considerable thought had been given as to how to present the complainants’ evidence. Good practice suggests that where there is a pre-recorded ABE interview of a young witness it should be used as her evidence in chief. However, Operation Chalice was defined by the sheer volume of the abuse suffered by the victims. Many described protracted abuse and exploitation over a period of years involving multiple men in a myriad of locations. The victims’ accounts were often given piecemeal and over a number of ABE interviews due to a number of factors including the extent and range of abuse which they had suffered and their inability initially to perceive of themselves as victims. Many of the complainants were initially loyal to offenders and minimised or denied what had occurred. While there were advantages in such wide-ranging ABE interviews as they provided the police with information worthy of further investigation and provided a huge amount of information about the minutiae of the lives of the complainants, defendants and wider community, in this particular instance they were not conducive to use as evidence in chief. Despite the Crown’s wish to abandon the pre-recorded interviews, it was prevented from doing so by a successful abuse of process application.
In the re-trial the Crown elected to call most of the complainants to give their evidence live with the assistance of appropriate special measures. The evidence which the Crown intended to adduce was produced as a detailed schedule which identified where the various aspects of the specific witness’s account could be found within the ABE interviews but arranged and ordered by Crown counsel. The schedule identified which evidence the Crown understood to be non-contentious such that it could be led and which evidence it anticipated would be challenged. The defence were then required to indicate any objection to either the identified evidence or the evidence which the Crown intended to lead. Instead of heavily edited, inevitably unfocused ABE interviews, the Crown was able to navigate its witnesses through their evidence in a structured and logical fashion directed by reference to the issues to be proved.
There is a cautionary note however, in that this approach requires prosecutors to ensure that they have full information about their witness: for example, will she be able to remember and accurately recount events at a greater remove from their occurrence; will she be able to concentrate properly when in a witness box rather than when seated in a chair in the less formal environment of the interview room; will she need any aids to ensure the jury can hear her properly; and can she deal with documents if required. Moreover it should be borne in mind that such extensive abuse may impact upon a witness’s ability to give a detailed account, particularly in the courtroom.
Consideration should be given to obtaining a detailed profile of the witness in advance of her giving evidence to determine her linguistic, cognitive and emotional capabilities, and whether any specific assistance or support including the use of special measures is appropriate. During the re-trial of Operation Chalice in 2012, the use of the described schedule assisted judicial management of the trial, enabling the tribunal to make a realistic assessment of the length of evidence in chief and to require the defence to identify and focus upon the real matters in issue so that legitimate parameters for the length and range of cross-examination could be determined before the trial began. That this approach, supported by the trial judge, was beneficial is confirmed by the fact that the re-trial was concluded in a shorter time than the original trial – which ended in the discharge of the jury after only five of the complainants had given evidence – lasted.
Anticipating the legitimate credibility issues upon which the defence would seek to challenge witnesses at trial, the Crown in Operation Chalice focused upon three areas: what other independent evidence such as telephone evidence and material held by third party sources supported the complainant’s account; whether associated offenders with common victims could be tried simultaneously to achieve the cumulative effect of multiple victims making similar complaints; and a critical analysis of the defendant’s account or lack of it. This approach is reinforced in the recent CPS guidelines.
Police were also instructed to ensure that full information was known, both from a review of internal documentation and third party material, about each complainant identifying anything said or done which the defence might wish to apply to use within the trial to challenge her credibility. A file of material for each witness which brought that information together in a single place was produced and circulated so that everyone could access it quickly and easily. Proper disclosure having been made, however, there followed substantial argument as to what material the defence could deploy. Accepting that credibility is a proper area for defence questioning is not to acknowledge that each and every defence advocate is entitled to cross-examine upon each and every issue relating to credit. It is the responsibility of prosecutors to robustly protect witnesses from inappropriate and protracted questioning. Application should be made to the trial judge for directions as to which advocates may undertake cross-examination in respect of which credibility issues, and to limit the number of advocates who are entitled to undertake such questioning. Where a defendant has no legitimate interest in a witness, prosecutors should seek judicial intervention. Judges should be invited to specify time limitations upon crossexamination so that witnesses can be given more accurate estimates of how long they will be required to give evidence for.
Lessons to be learned
The key lesson to be taken from Operation Chalice is that the Guidelines are robust, requiring Prosecutors to both challenge their own preconceptions and take responsibility for ensuring that jurors do not disbelieve a complaint simply because a witness may have told lies or acted badly on occasions unrelated to her complaint. The question for the jury should be not whether the complainant cried wolf falsely before, but whether she is being truthful when she cried wolf this time.
Deborah Gould, Principal Crown Advocate, Crown Prosecution Service West Midlands