A nervous disposition
On the 19 March 2017, in an exclusive interview with The Sunday Times, The Justice Secretary, Elizabeth Truss, announced that from September 2017 adult complainants in trials for sexual offences will be able to choose to have their cross-examination pre-recorded in advance of the trial. This follows a similar pilot scheme run since the beginning of 2014 at three crown courts (Kingston, Leeds and Liverpool) for child witnesses and those with mental or physical disorders.
The Justice Secretary’s announcement gave the impression that the scheme was to be introduced nationwide. Rather embarrassingly, that was not quite true, and there followed a hasty intervention from the Lord Chief Justice, Lord Thomas, who wrote to senior judges to clarify that the scheme will initially only be available in the three pilot courts to allow for issues to be identified and addressed before any national roll-out is considered.
In our view, it is vital that such stress testing takes place before such a seismic shift in criminal procedure is fully implemented. While practitioners have been anticipating the proposed changes for a number of years, ever since section 28 of the Youth Justice and Criminal Evidence Act 1999 made it possible, it marks a significant departure from existing procedure, with a number of important legal and practical consequences to be considered.
Assuming the procedure is similar to that of the vulnerable witness pilot, the complainant will attend a special hearing in advance of the trial, where they will be cross-examined (and re-examined, if necessary), all of which will be recorded. If required, this will take place via video link, with the complainant located in a room inside the court building and the judge, lawyers and defendant present in the courtroom. In some circumstances, the judge and/or the advocates can be in the same room as the complainant. At the trial, the recording will be played to the court at the point at which the complainant would have undergone “live” cross-examination.
The intended beneficiaries of this change in procedure are victims of sexual offences. The Justice Secretary is determined to improve the experience of those who give evidence against alleged sex offenders in trials, with much media attention having recently been given to this issue.
But will it actually make much of a positive difference for those intended to benefit? There is likely to be some improvement for victims. The cross-examination hearing will take place far in advance of the trial, so that a victim’s involvement with the case should come to an end much sooner than at present, thereby reducing the distress experienced by many. Victims will also benefit if they are involved in a case which has to undergo a re-trial. Under current procedure, the victim would be required to attend the re-trial and be cross-examined all over again, often many months after the original trial. As part of the new scheme, the recorded cross-examination will simply be played at the re-trial, without having to involve the complainant at all.
The Justice Secretary suggests that several other improvements will result from this change. She points to the fact that the cross-examination will take place in a far less intimidating environment and to judges being able to limit the length of cross-examination and prevent inappropriate questions, including those relating to a victim’s previous sexual history. However, each of these apparent improvements is already a firmly established aspect of current procedure. Complainants are able to give evidence via video link from a separate room in the court building or from behind a screen within the courtroom itself, and many choose to take this option. This offers a far more relaxed setting for the complainant and removes any possibility of them seeing the defendant. As to Truss’ other points, judges are already fully entitled to step in if they feel that questioning is inappropriate or unnecessary, and questions about a complainant’s previous sexual history are heavily regulated by law. Such questioning is only allowed in very particular circumstances and when it is in the interests of justice to do so, as discussed in our previous blog.
The existing pilot scheme for vulnerable witnesses has seen a marked increase in case management. For example, prior to the cross-examination hearing a “ground rules hearing” must take place, at which the judge and the parties agree on the approach to be taken when questioning the complainant. As part of the vulnerable witnesses pilot, judges have expected defence advocates to provide a copy of the questions they propose to ask so that anything deemed unsuitable can be removed prior to the cross-examination.
Such a hearing is more important for the vulnerable witnesses as many would struggle to fully understand questions asked in the usual way during cross-examination and may risk unintentionally providing inaccurate evidence. However, the changes announced by Elizabeth Truss will apply to all adult complainants in trials for sexual offences, irrespective of whether they suffer from any mental health issues, learning difficulties or any other vulnerability. It is not clear whether the same strict case management will exist; Truss’ announcement suggested that this would be the case, whereas the Lord Chief Justice explained in his letter to senior judges that “there is no question of curtailing robust cross-examination unless it becomes inappropriate or improper.” The view expressed by the Lord Chief Justice must surely be correct, as it is difficult to see the basis for any departure from the usual approach to cross-examination in respect of non-vulnerable complainants of sexual offences.
If ground rules hearings and vetting of questions do not take place automatically when the new procedure is introduced, then one has to question how much improvement there will be for complainants. Surely the most distressing part of being cross-examined is the nature of cross-examination itself? Defence lawyers skilled in the art of advocacy try hard to undermine the credibility of the complainant, often suggesting that they are making up their allegation or have simply made a mistake, and often proposing an alternative version of events totally at odds to the complainant’s evidence.
Whilst such cross-examination is an inherently stressful and upsetting experience, it remains the cornerstone of our adversarial system and judges keen to ensure fairness of proceedings will be reluctant to prevent appropriate but robust questioning from advocates acting in the best interest of their client. A pre-recorded cross-examination which takes place months in advance of a trial is still a cross-examination and is still likely to remain a deeply unpleasant experience for the complainant, albeit one that is vitally important for ensuring fairness to a defendant.
Unsurprisingly, considering the change is aimed at improving the situation for victims of crime, it is difficult to see how defendants will benefit in any way. In fact, there are a number of worrying consequences which represent a dangerous erosion of a defendant’s right to a fair trial.
An important part of having live witnesses in a trial is that it allows the jury to be in the best possible position to make an assessment as to their credibility and how much weight should be attached to their evidence. Aside from what the witness actually says, juries can assess the witness’ body language, eye contact or manner in which they answer questions. By removing a witness from a courtroom and presenting their evidence by way of what is likely to be a poor quality video (if current court technology is anything to go by), the jury are in a much weaker position to conduct a proper analysis. It is clear to see how a defendant will be prejudiced by this. Of similar concern is the inconsistency between what is required to make these changes fully effective and the reality of criminal proceedings. Cross-examination of a prosecution witness can only be conducted properly if a defendant and his representatives have had sight of all of the material in the case beforehand. Indeed, the guidance for the vulnerable witnesses pilot makes it clear that such material has to be provided before the cross-examination hearing. However, it is an all too common experience for the defence practitioner to encounter delays and late service of material by the CPS, for new material to come to the prosecution’s attention after they have purported to provide everything, and for relevant material only to be forthcoming after repeated disclosure requests, often during the trial itself.
It is difficult to see how this practical reality will sit comfortably alongside the procedure for pre-recorded cross-examination. If the cross-examination hearing is delayed, then the closer it is to the trial the less significant the few positive effects for complainants discussed above will be. If the hearing simply goes ahead as planned, with subsequent cross-examination hearings taking place in the event of further material becoming available then this will harm both complainants and defendants. It will surely be more distressing for a complainant to have to keep returning for further cross-examination, despite having been under the impression that their involvement with the case was over. For defendants, the fact that an application would have to be made before any further cross-examination puts them at a significant disadvantage compared to a defendant in any other case. Even if such applications are successful, there is a real risk of the defendant being left with a messy series of cross-examination recordings, which are not entirely consistent with each other, and which have considerably less impact than a live cross-examination at court during the trial.
Finally, and perhaps most importantly, the cost implication of this new scheme must be considered. Whilst some money will be saved as a result of an anticipated increase in guilty pleas and cases being dropped by the CPS (as the cross-examination reveals either the strength of or shortcomings in the case), these changes will require more hearings, more work (under strict time constraints) and greater use of expensive court equipment. At a time when courts and criminal justice authorities are already at breaking point with the overwhelming number of sex cases being brought, this seems an odd moment to introduce such a dramatic change.
Despite the fanfare with which it was announced, the reality is that pre-recorded cross-examination will provide very little improvement for complainants, who will still be subjected to the same kind of questioning which so frequently attracts criticism from various victim-led groups. With the exception of some minor changes, what really is the difference between a pre-recorded cross-examination and one which is conducted over a video link on the day of trial?
As so little will change for complainants, whilst so much prejudice will be suffered by defendants, we should be extremely careful to learn the lessons from the pilot studies and to consider the limitations of the proposed scheme before the Justice Secretary makes any further announcements.
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