Are Legislative Changes for ‘Special Measures’ Eroding defences in Criminal Trials?
Very young witnesses can find the process of giving evidence daunting and are often liable to forget crucial details of their testimony in a very short space of time. There has been a serious concern in recent years that the process for obtaining evidence from witnesses in cases concerning sexual crimes is too slow, and that the process may be too intimidating. Current measures allowing the complainant to give evidence at an early stage, and other ‘special measures may reduce the stress and trauma child witnesses experience but is also designed to allow the complainant to recall more accurate evidence.
However, there are several issues with the legislative changes which can have an impact on defence. In this article, we look at some of the critical difficulties in cases involving witnesses under ten years old subject expedition.
Section 28 and the Joint Protocol
Section 16 of the Youth Justice and Criminal Evidence Act 1999 acknowledges children’s vulnerability and automatically classifies child witnesses as being eligible for Special Measures. The Act contains special measures which allow witnesses to provide pre-recorded evidence in chief, and Section 28, provides for cross and re-examination to also be pre-recorded. The joint protocol is an agreement between the association of chief police officers, the crown prosecution service and her majesty’s courts & tribunals service to expedite cases involving witnesses under ten years. In practicality, this means that in advance of a trial, the child witness will be cross-examined, and even re-examined where necessary, while being recorded. During the trial, when the witness would usually have been cross-examined, the video recording will be played instead.
Cross-examining at such an early stage can cause issues for the defence. It is very challenging to respond to early disclosures and prepare a full defence so early in the process. This may erode the possibility of providing the highest-quality defence, even where the defendant instructs the most experienced and skilled legal team.
Furthermore, there is a considerable amount of case management which may dilute the adversarial nature of our criminal justice system. For example, at the Ground Rules Hearing parties may discuss which questions the witness will be asked, and the judge may remove any questioned deemed unsuitable before the cross-examination. This is concerning, as it effectively restricts the defence in effectively questioning the complainant during cross-examination.
Human rights and fair trial concerns
The changes to the legislation also raise concerns as to whether the process is compatible with the right to a fair trial. Under Article 6 of the European Convention on Human Rights incorporated into UK law through the Human Rights Act 1998, the accused has the right to a fair trial, and to be presumed innocent until proven guilty. Part of ensuring the right to a fair trial and protecting the rights of the accused is allowing a full and proper cross-examination of the complainant to be conducted. As discussed above, the recently introduced measures may restrict and impact the ability of the defence to do this.
Although giving evidence at an early stage outside of the courtroom may alleviate the stress a young witness experiences, there are already special measures in place to address these concerns which may have a lesser impact on the defence. For example, there are measures which allow for a complainant to give evidence live from a different room within the court or to give evidence from behind a screen. It is therefore essential to assess whether the new measures really provide any additional protection to those already in place and whether the potential disadvantages outweigh the increased protection to the defendant.
It is also important to note the concerns regarding how juries assess the credibility of the complainant where they are not present in the courtroom. It can be difficult for jury members to pick up on body language, tone and other non-verbal signs which can be attributed to witness credibility. This can not only be detrimental to the defence but also can be both detrimental for the complainant.
Training and technology concerns
One of the most crucial elements of ensuring that these measures are successful is the proper training of all parties involved, and the proper use of technology.
The advocacy skill involved in pre-recorded cross-examination is different from that in the courtroom. Defence lawyers, the prosecution and judges in cases where a pre-recorded cross-examination is used must have adequate support and training to ensure that justice is done.
Moreover, there are significant improvements to be made to the technology used. In the report following the first pilot involving under 16s giving pre-recorded evidence, it was highlighted that the technology used was inadequate. The key issues included an insufficient amount of screen space for witnesses, sound quality issues during playback, difficulties with the s.28 equipment causing live-link rooms to be unable to be used for other live-link evidence, and difficulty playing CCTV footage to witnesses while cross-examination is taking place. These issues can have a real impact on the outcome of a case.
It is clear that while there must be measures in place to improve the quality of evidence provided by child complainants, solutions should not erode the rights of the accused. A greater balance needs to be struck, and justice must be delivered through a fair, considered and tested process.
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