Letter of the week

The recent article in your magazine entitled “Vulnerable age” by Marcello Mega as described as an investigation. In fact, it represented a tendentious and unjustified attack on the criminal justice system and on the conduct of individual defence counsel based on his personal opinion.

As Dean of the Faculty of Advocates, I take the strongest objection to many of the statements made in the article including the reference to “the worst excesses of defence lawyers” and the allegation that defence counsel approach cases involving child witnesses with “disturbing zeal”.

Any unbiased person who has been in court to observe such cases at first hand would recognise these statements as unjustified. The particular defence counsel who were involved in the Ayrshire case referred to in the article are amongst the most experienced and skilled in Scotland and they take grave exception to the allegation, stated as a fact, that they indulged in hostile and aggressive cross examination.

However distasteful the charges which are made in a criminal trial, the accused is presumed to be innocent until proven guilty. Given the nature of the allegations and the age of the alleged victims in the case in question, defence counsel went out of their way to ensure that such questioning as was necessary was sensitive and tactful. It was also under the control of one of Scotland’s most experienced judges. That was the tenor of media reports at the time by experienced court reporters who were in court throughout the case. I am not aware that Mr Mega attended any of the trial.

Whilst advocates have a duty to their client, they also owe duties to the court, to the public and to the interests of justice. Their conduct in court is directly under the control of the judge or sheriff, and cross-examination of the type described in the article would not be permitted.

The article made reference to “our rigid system” despite the fact that procedure in criminal trials has regularly been adapted to meet the needs of vulnerable witnesses and alleged victims. In the Ayrshire case, which took place six years ago, an 11-year-old girl gave her evidence via a CCTV link watched over
by a social worker and with a psychotherapist on call in case the witness became distressed.

Since then several major reforms have been introduced by the Scottish Executive in an effort to help vulnerable witnesses give their evidence, The Faculty of Advocates, the Faculty’s Criminal Bar Association and individual advocates have played a leading role in the framing and implementation of these reforms which they regard as being in the interests of justice and which form part of every advocates’ training.

It is entirely legitimate to question the way in which sexual abuses cases involving children are dealt with by the courts. That can be done without making unjustified, inaccurate and offensive attacks on defence counsel and the court system.

ROY MARTIN QC
DEAN OF THE FACULTY OF ADVOCATES

I have just read Mr Mega’s article on the treatment of child witnesses in our courts and, having served as a juror on the Ayrshire abuse case in 2001, I can confirm that all his statements about that case are well founded.

In his opening paragraph, for example, he refers to the “hostile cross examination” of the 8-year-old boy. The QC in question opened his examination by firing a series of statements without allowing the boy the chance to answer, although he made several attempts to do so.

After a few seconds of this abusive onslaught, the boy was reduced to a blubbering wreck. It was a pitiful sight to behold. In his distress and bewilderment, the only person he might have received some understanding from was the judge, who remained silent but later deemed that the case would have to be abandoned.

Since the defence lawyers could be reasonably sure that the case would collapse if the boy was unable to complete his evidence, it is difficult to resist the conclusion that this hostile cross-examination was a deliberate technique employed by the defence team to win their case.

I could refer to several other instances where the two children, having suffered sexual abuse (the evidence is incontrovertible) were then subjected to a series of further abuses from the legal system itself. I left the high court with the view that no society which allowed such practices to take place had the right to call itself civilised. The manner in which the defence
lawyers treated both the boy and the girl was nothing short of barbaric.

Unfortunately, this was not an isolated case and my understanding is that nothing has changed substantively in the intervening 6 years.

For these reasons, I would like to offer my support and encouragement to Mr Mega in his efforts to introduce some measure of humanity and understanding into the treatment of child witnesses in Scottish courts.

CHRISTOPHER GARNER

We have read with horror and shame the article written by Marcello Mega and concur with his views and those of Sandra Brown and Ray Wire. It is such a pity that those who give a voice to children are castigated for doing so. The judicial system in Scotland should feel disgraced because it allows the Vulnerable Witnesses Act to be turned into a nonsensical piece of legislation and such a waste of time, due to personal interpretation and perception by the judiciary.

We believe it is only a matter of time before the Scottish judiciary is sued and taken before the European Court of Human Rights because of blatant disregard of the rights of children in respect of the lack of prosecution in sexual abuse cases. The judicial system consistently fails in its duty of care towards the most vulnerable in our society by allowing the transparent deception and manipulation to effect the non-implementation of the Vulnerable Witnesses Act.

When will the full judicial system actually take training on the cause and effects of child sexual abuse in order to gain a degree of understanding of these pertinent issues? We believe this should be mandatory.

When will they learn that the biggest lie children ever tell is that nothing happened?

When will they actually ‘hear’ what children have to tell them? Children have a right to be heard.

When will they enforce the rights of children over those of the perpetrator? What about equality and social inclusion? At least give them equality with the perpetrators.

It is amazing that when it comes to sexual violation, the victims, both children and adults, are perceived in court as liars not victims. It is about time society in general accepts that men, in order to save their own skins, will lie and of course, they are then afforded the luxury of defence lawyers who get paid substantial amounts to prove their lies for them. Society in general should not forget that most accused get legal aid and payment for this comes from the public purse.

Physical abuse can be policed and to some extent stopped, sexual abuse can be policed and to some extent stopped, but most damaging is the emotional abuse, which cannot under any circumstance be policed or stopped. To have the emotional abuse reinforced within a courtroom setting by the ‘powers that be’, is the ultimate betrayal of a child’s trust by those charged with its protection.

Rape and sexual violence are serious crimes and persistent social problems, which are universal and as old as humanity itself. In our society, these crimes are surrounded by a well-established mythology, developed through generations of patriarchal domination, which sadly still exists today! These myths promote facilitation of the crimes and serve as a subsequent justification for the perpetrators. The myths surrounding sexual violation excuse the offender and so often blame the victims. This mythology permeates all
institutions in our society including our legal system and should be recognised for what it is.

Rape, sexual assault and child sexual abuse are not private issues but public ones. Sexual violation cannot be considered solely a “personal” issue involving a particular man and a particular woman or child. It is a problem that concerns all men and all women because it deals with the basic issue of the ways in which men and women relate to each other and of course, to children.

There is a need for society to become more aware of the causes and effects surrounding these violations of women and children and it would seem appropriate to us if the judiciary were to lead the way towards attitudinal change. We urge all the ‘powers that be’ to make a concerted effort to create a safer environment for everyone, especially our children.

On occasions, it may be that some of those who were elected into ‘powerful’ public office require to be reminded that they, on being elected, are charged with serving the public. What more deserving cases require to be served than the most vulnerable and disadvantaged in society
– our children?

CATHY STEELE
CENTRAL SCOTLAND RAPE
CRISIS AND SEXUAL ABUSE
CENTRE

Cardinal O’Brien’s comments in issue 172 would make for amusing reading (perhaps the basis for a sitcom based in a rural Irish parochial house, for example) if it weren’t for the fact that the politicians still take them so seriously.

It makes O’Brien’s statements and John Docherty’s (Headmaster of St Ninian’s) wilful lack of acceptance of young gay people seem more out of touch than ever. Politicians, however, can’t exist divorced from reality and a new Executive is the perfect opportunity to embrace faith in Scotland but not let it attempt to
blight our lives.

CALUM IRVING
STONEWALL SCOTLAND