Law report: Control of unrepresented defendants

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Regina v Brown (Milton); Court of Appeal (Criminal Division) (Lord Bingham of Cornhill CJ, Mr Justice Turner and Mr Justice Penry-Davey)

6 May 1998

THE COURT of Appeal gave guidance to judges presiding over criminal trials in which defendants were unrepresented, particularly with regard to cross-examination of witnesses, including complainants in rape trials.

The applications of Milton Anthony Brown for leave to appeal against his conviction of two counts of rape, one count of false imprisonment and two counts of indecent assault, and against a total sentence of 16 years' imprisonment, were refused.

The applicant had decided to dispense with the services of his counsel and solicitors at a very early stage in his trial, and had subjected the two complainants to cross-examination clearly designed to intimidate and humiliate them. The trial judge had said that it was highly regrettable, and a matter of public concern, that as the law stood "an unrepresented defendant in a sexual assault case had a virtually unfettered right personally to question his victim in such needlessly extended and agonising detail for the obvious purpose of intimidation and humiliation".

Sasha Wass (Registrar of Criminal Appeals) for the applicant; Peter Finnigan (Crown Prosecution Service) for the Crown.

Lord Bingham CJ said that where a defendant represented himself in a criminal trial, the deficiencies which existed where he did so in good faith were magnified 100-fold where he was motivated by a desire to obstruct the proceedings or to humiliate, intimidate or abuse anyone taking part in them.

A trial judge's duty was to ensure to the utmost of his ability that a defendant had a fair trial, particularly, perhaps, where he was unrepresented.

The judge was, however, obliged to have regard not only to the need to ensure a fair trial for the defendant but also to the reasonable interests of other parties to the court process, in particular witnesses, and particularly those who were obliged to relive by describing in the witness box an ordeal to which they said they had been subject. It was the clear duty of the judge to do everything he could, consistently with giving the defendant a fair trial, to minimise the trauma suffered by other participants. Furthermore, a trial was not fair if a defendant, by choosing to represent himself, gained the advantage he would not have had if represented of abusing the rules in relation to relevance and repetition which applied when witnesses were questioned.

A trial judge was not obliged to give an unrepresented defendant his head to ask whatever questions, at whatever length, he wished. It would often be desirable, before any question was asked by the defendant in cross-examination of a complainant in a rape trial, for the trial judge to discuss the course of proceedings with the defendant in the absence of the jury. The judge might then elicit the general nature of the defence and identify the specific points in the complainant's evidence with which the defendant took issue, and any points he wished to put to her. If the defendant proposed to call witnesses in his own defence, the substance of their evidence could be elicited so that the complainant's observations on it might, so far as relevant, be invited.

It would almost always be desirable in the first instance to allow a defendant to put questions to a complainant, but it should be made clear in advance that the defendant would be required, having put a point, to move on, and if he failed to do so the judge should intervene and secure compliance. If the defendant proved unable or unwilling to comply with the judge's instructions the judge should, if necessary to save the complainant from avoidable distress, stop further questioning by the defendant or take over the questioning of the complainant by himself.

If the defendant sought by his dress, bearing, manner or questions to dominate, intimidate or humiliate the complainant, or if it was reasonably apprehended that he would do so, the judge should not hesitate to order the erection of a screen, in addition to controlling the questioning in the way indicated.

If judges intervened to ensure that witnesses were not subjected to inappropriate pressure, they should clearly understand that the Court of Appeal would be very slow indeed, in the absence of clear evidence of injustice, to disturb any resulting conviction.

Kate O'Hanlon, Barrister

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