Vulnerable witnesses / complainants to be cross examined prior to trial, says Chris Grayling

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On 11 June 2013, Chris Grayling the Lord Chancellor and Sec of State for Justice made an announcement in relation to vulnerable witnesses and complainants who appear in court.

The announcement is a response to concerns over how some vulnerable child complainants have been cross examined in sex offence trials.

What is being proposed?

The press release is available here.

Well essentially, it is the option to pre-record the evidence of young and vulnerable complainants. This would include both examination in chief and cross examination. This is a provision which has existed since 1999, but never brought into force.

There will be a pilot scheme, initially rolled out in Liverpool, Leeds and Kingston-upon-Thames. The intention would be to roll it out more widely if it proves to be a success.

Why is it being proposed?

Well, there have been concerns surrounding the way in which vulnerable and young complainants and witnesses are treated in court.

Firstly, it is accepted that giving evidence can be an intimidating experience, whether a witness or complainant is vulnerable or not. The courts want to achieve the best possible quality of evidence in order to enable the jury or magistrates to be in the best possible position to determine what happened.

Secondly, where an allegation put forth by a complainant is denied by a defendant, say in a sexual assault trial, it can be necessary to conduct a lengthy and detailed cross examination to establish whether there are any inconsistencies in the evidence or whether there is a motive to concoct a story or exaggerate actual events. There has been criticism of barristers aggressively questioning young and vulnerable witnesses and complainants and conducting ‘character assassinations’.

The proposals can only be a help to the vulnerable if they are sat in a quiet room being videoed, rather than in a busy courtroom being stared at by dozens of pairs of eyes.

However, Grayling said:

“It is simply not right that young and vulnerable victims are forced to relive the most traumatic experience they have ever had, often for days on end, when cross-examined in court

Are there concerns about this? You bet.

What are the concerns?

Well, the ability to cross examine a complainant or witness is key to the adversarial process and absolutely essential to ensure a defendant receives a fair trial. The situation where a complainant’s allegations are untested is unthinkable.

The problem with Grayling’s comment that it isn’t right to force a complainant to relive the traumatic event, is that it is a necessary part of a criminal trial. A jury need to hear what the complainant says happened. That is not to say that such an examination should be aggressive and intimidating. Far from it. But it must be thorough and complete.

Don’t children and vulnerable witnesses already get special treatment?

Yes, in the Youth Justice and Criminal Evidence Act 1999 ss 16-33 contain the provisions relating to ‘special measures’. This permits a court, upon an application, to modify the way in which evidence is heard in order to protect the witness/complainant or to ensure the best possible evidence is obtained.

Examples are:

s.23 Screening witness from the accused

s.24 Evidence by live link

s.25 Evidence given in private

s.26 Removal of wigs and gowns

s.27 Video recorded evidence in chief

s.28 Video recorded cross examination (partially in force)

s.29 Examination of witness through an intermediary

s.30 Aids to communication

The proposals are essentially to commence (bring into force) section 28.

So you can see that there are already numerous provisions which on the face of it appear to achieve Grayling’s aim. So what does he say about the current provisions?

“… it is clear they do not go far enough. Although judges have the power to intervene to prevent overly aggressive cross-examination and character assassinations, there are growing instances of victims being left traumatised after court cases. There is no limit on the number of lawyers who can cross-examine a victim or witness, or on the amount of time they can be on the stand. Victims and witnesses can also be required to discuss graphic details of crimes such as sexual abuse.”

To be fair to him, he acknowledges the ‘fair trial’ issue and says that the new measures will be implemented without compromising the right to a fair trial.

Some concerns will remain at the idea of cross examining a complainant before the trial starts (who knows what other issues may be thrown up in the meantime, requiring them to be recalled to give further evidence?), the suggested restriction on the number of barristers allowed to cross examine a complainant and the time in which such cross examination must be completed.

I find the following sentence troubling:

“Victims and witnesses can also be required to discuss graphic details of crimes such as sexual abuse.”

Is it suggesting that there may be restrictions on how detailed an examination of a complainant’s allegations may be? Whilst the reason for it is self-evident, one wonders just how the balance can be correctly achieved between protecting the complainant/witness, and ensuring that defendants are able to robustly challenge the evidence against them.

After all, an allegation which withstands robust cross examination merely serves to strengthen the conviction – that can only be viewed as a good thing.

How has it been received?

The press seem to be behind it and the Bar Council are also in support.

Lord Judge said:

“I welcome the Lord Chancellor’s announcement about implementation of section 28 of the Youth Justice and Criminal Evidence Act 1999, enabling children and vulnerable witnesses to be cross-examined in advance of the case coming to trial. This was first suggested by the committee chaired by Judge Pigot QC in 1989 and the judiciary has long supported its implementation. I spoke in support of this most recently in March. I am delighted that a pilot scheme will now be run and look forward to full implementation across the country in due course.”

Conclusion

This is a difficult issue which requires a fine balancing act. Many think the system in its current form (not in relation to special measures) is stacked against defendants.

There is a clear need to halt aggressive, intimidating and lengthy cross examination, but not at the expense of justice.

It is encouraging to see that the MoJ will be working with the Judiciary and the CPS to implement these measures, though it is noted that there doesn’t seem to be any mention of a body representative of defendants or their representatives.

Related post: Cross examination and why the defence case must be put (the Frances Andrade case)

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2 thoughts on “Vulnerable witnesses / complainants to be cross examined prior to trial, says Chris Grayling

  1. Andrew

    At what stage will this recording take place? It cannot possibly be until after full disclosure.

    Who will cross-examine? If A’s defence is “I was not there, you are just wrong”; B’s is “I was there but I didn’t touch you” and C’s is “Sure we had intercourse, and you consented, I reasonably believed based on what you said and wore and did that you were sixteen” – which is a defence now – that requires three different counsel to conduct three different cross-examinations.

    if there is a cut-throat defence it may be essential in the interests of a fair trial to bring her back.

    It all has a whiff of railroad justice about it.

    Reply

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