Lord Carloway warns lawyers over sex case questions

SCOTLAND’S most senior judge has issued a strongly-worded warning to lawyers about the way they question alleged victims of sex crimes in High Court trials.

Lord Carloways judgment strongly criticised the defence lawyer. Picture: Lesley Donald

In a judgment delivered at the Court of Criminal Appeal yesterday, Lord Carloway said he was concerned that some lawyers are failing to respect the rights of alleged sexual assault victims and urged trial judges to intervene to stop lawyers indulging in “protracted, vexatious or unfeeling” questioning of complainants.

Lord Carloway, the Lord Justice Clerk, made his remarks at an appeal to a rape and sexual assault case heard in the High Court last year.

During the trial of Duncan Begg, charged with raping and assaulting two women in the north of Scotland during the 1990s, defence advocate Brian McConnachie QC opened his cross-examination of one of the rape victims by saying: “You are a wicked, deceitful, malicious, vindictive, liar?”

Lord Carloway said that he felt that this style of questioning did not respect the rights of the woman, who cannot be named for legal reasons.

He said: “Cross examination opened with a direct salvo rather than a question, presumably designed to destabilise the witness.

“In this case, it is doubtful whether the ubiquitous informed bystander would have regarded the conduct of this trial as affording due respect for the complainer’s rights.

“Leaving aside a question of whether the correct procedure was followed, in this case it is important to emphasise that a trial judge has a power to control the nature and scope of questioning.

“He is entitled to stop questioning if he considers it to be ‘protracted, vexatious and unfeeling’.

“If a proper balance cannot be achieved by the representatives of the crown and defence, the court may have a duty to intervene.”

Begg, 44, who was jailed for eight years at the High Court in Glasgow in 2014, failed in his appeal to have his convictions for rape and assault quashed.

His lawyers had argued that Begg should not have been convicted because the evidence given by the woman, who was accused of being a liar, was not credible.

However Lord Carloway refused Begg’s appeal, ruling that his conviction was safe.

The judge also criticised the tone of questioning used to address the woman, who is described in the judgment, as “vulnerable”.

Lord Carloway said the woman spent three days giving evidence in the trial, during which she told the court how Begg abused her.

He wrote: “While not wishing to be over critical of the advocate depute or defence counsel for the manner in which this case was conducted, given the latitude which seems still to be afforded in practice in cases of this type, it has to be said that both the manner and length of examination and cross examination give cause for concern in relation to the treatment of a vulnerable, or indeed any, witness testifying in the criminal courts.

“The examination lasted for many hours and must have been what can only be described as as a substantial ordeal for the complainer.

“From the outset of cross examination, she was subjected not just to in-depth questioning testing the veracity of her testimony but to direct insults of her general character as, for example, being a ‘wicked, deceitful, malicious, vindictive liar’.

“The cross examination itself then lasted for hours. It was conducted in a manner apparently calculated to break the will of the witness, which at times it undoubtedly did. Due regard must be had to the right to test a witness’s evidence by properly focused cross examination.

“That right, however, does not extend to insulting or intimidating a witness.

“The court must be prepared, where appropriate, to interfere when cross examination strays beyond proper bounds both in terms of the nature of the questioning and length of time a complainer can be expected to withstand sustained attack.”