Justice reforms in the UK and Australia: will the accused still get a fair trial?

There is constant pressure and publicity from victims’ rights activists to make the legal system less stressful for complainants. Let’s face it — there’s no doubt the whole legal process is stressful. But what about the stress on the accused person?

England and Wales: specialist rape courtrooms

In the UK the legal system is suffering from massive delays. As reported in England and Wales roll out specialist rape courtrooms to cut delays, the government has announced that within two years every Crown Court will have at least one courtroom “equipped to handle rape and serious sexual offense cases”. This is stated to include private entrances and waiting areas for those making the complaint, and facilities to enable them to give evidence by video link and watch the trial remotely.

It seems telling, however, that these changes are being promoted as a way to “reduce long delays”.

Prime Minister Andy Burnham said the changes were intended to “rebalance the scales of justice and put victims first.”

“Prosecution rates for rape remain shamefully low, with many victims waiting years for justice,” Burnham said.

Faster for whom?

The statistics presented to support this reasoning are illogical, one would think.

The move comes as the Crown Court struggles with a record backlog. There were 80,061 open cases at the end of March, with 15,373 involving sexual offenses — about 19% of the total.

Yes, the system is drowning. But rather than putting funding into more court staff or judges, there seems to be a non sequitur: that if we make it easier for victims, things will get quicker.

Keep in mind, too, that prosecution rates for rape being “shamefully low” could point to other issues, such as the number of false accusations or cases without merit.

Jury trials and a Royal Commission

Much lower down the article, we get the other side presented:

The bill would create a new tier of the Crown Court for lower-level cases likely to receive sentences of three years or less, allowing them to be heard by a judge without a jury. This part of the bill has received criticism among opposition lawmakers and some legal groups, who argue the government should tackle the court backlog by increasing court capacity rather than restricting defendants’ right to a jury trial.

It should be noted that rape trials would not be heard by the new lower-level courts, regardless of this being used as the main issue to promote these reforms. When the jury plan was first announced in December 2025, Justice Secretary David Lammy highlighted that six in 10 rape cases collapse because victims walk away rather than endure years of waiting — yet under the same plan, rape, murder and other serious crimes would still go before a jury.

Professor Claire McGourlay, founder of the Manchester Innocence Project, warned that speed cannot be “the sole measure of a fair criminal justice system”. Moving largely to judge-only trials, she said, “increases the potential risk of miscarriages of justice, particularly in cases where credibility, race, context or community standards play a central role.” Credibility is at the heart of almost every false allegation case.

The plan also ends a defendant’s ability to choose a jury trial when a case could be handled by magistrates or the new judge-only court. Lammy said this would stop defendants “gaming the system” by choosing a slower route. But asking to be judged by one’s peers is a long-established right, not a tactic — and for someone who is innocent, it may be the best protection they have.

This comes at the same time as MPs, trade unions and police call for a Royal Commission on the justice system, to tackle overcrowded prisons and the problems connected to them across the system — and the unions behind that call describe plans to restrict jury trials as “a dangerous and wrong-headed response” to the backlog.

Clearly there are much larger issues here that cannot simply be handled by fast-tracking the process or making things less stressful for complainants.

New South Wales: pre-recorded evidence

Meanwhile in Australia, sexual assault survivors will be able to pre-record testimony under proposed NSW reforms. The reforms, described by the Attorney-General as “commonsense”, would let complainants give pre-recorded evidence-in-chief in adult sexual assault trials, and narrow the circumstances in which courts can access a complainant’s counselling records. “Ground rules” hearings, to be trialled at three District Courts, will be held ahead of complainants’ evidence so the court can give directions about how the proceedings will run — including how a witness is to be questioned, and what they can be questioned on.

Pre-recorded evidence is already admissible for children under 16 and people with a cognitive impairment.

Complainants will still have to appear for cross-examination and re-examination — a process described by some witnesses as bruising and invasive — until a separate review next year considers the feasibility of allowing for entirely pre-recorded evidence.

However, Jacinta Masters, campaign manager of the advocacy group Fair Agenda, said “this is not what we’ve been asking for”.

“We’ve been very clear pre-recorded evidence is needed for evidence-in-chief, cross-examination and re-examination,” Ms Masters said.

Not everyone agrees the reforms are needed at all. The Attorney-General, Michael Daley, said the aim was to help complainants “give their best evidence by ensuring they do not need to tell their story multiple times and deterring inappropriate and irrelevant questioning in court.” Former barrister Hugh Selby, writing in Canberra CityNews, answers both points. Complainants tell their story to the police, go over it with the prosecutor, and then give it in court — that is not needless repetition, but the process by which their evidence is tested. And good prosecutors and trial judges already come down hard on improper questioning of complainants. As Selby puts it, “No further deterrent is necessary.”

The right to cross-examine

But hang on — isn’t the right to cross-examine one’s accuser a key part of the justice system?

Selby, drawing on his years as an advocate, argues that it is. Witnesses lie for many reasons — to protect themselves or others, for gain, or for revenge — and while many are easily caught out, some can deceive everyone around them for a long time. Cross-examination is how they are exposed. The high standard of proof, beyond reasonable doubt, exists because “we want to avoid wrong convictions”, he writes, and plans “to circumvent real witness accountability at trials undermine that standard of proof.”

He also points to the imbalance: nobody, he notes, has seriously suggested that an adult accused should be able to give pre-recorded evidence and not be cross-examined.

And the accused is traumatised too — for longer, Selby notes, than the complainant — while a conviction for a sexual offence carries lifelong consequences well beyond any sentence. Selby puts the outcomes of sexual offence trials at “close to 50:50”, meaning, in his words, that “half of those accused who go to trial have endured significant undeserved trauma.”

Is the government making choices merely to placate victims’ rights activists?

Only time will tell the effects of these reforms. But it is worth remembering that any imbalance in the system will take time to recognise and fix, and those falsely accused are already suffering under a system that is unfairly — and often impossibly — skewed.