Does the Current Law Protect Vulnerable and Intimidated Witnesses Adequately?

Are vulnerable and intimidated witnesses adequately protected during cross-examination under the current law? To appear as a witness in a criminal trial has been described as a terrifying, intimidating, difficult and stressful ordeal.

[1] It is not an easy experience for vulnerable and intimidated witnesses when the issue of giving evidence about the incident they were involved in is in question. This is because while the witnesses are giving evidence in court they are most likely to re-live the incident and the pain they suffered, and psychologically, this is very damaging. There are a range of measures enshrined in statute to protect victims of sexual offences in court, although these are now interpreted in light of Article 6 of the Human Rights Act, which provides the defendant with a right to a fair trial.

Section 41 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) restricts the circumstances in which evidence or questions about the sexual behaviour of a complainant outside the circumstances of the alleged offence can be introduced. Moreover, the Youth Justice and Criminal Evidence Act 1999 introduced a range of measures that can be used to facilitate the gathering and giving of evidence by vulnerable and intimidated witnesses which are collectively known as “Special Measures”. Nevertheless, the cross-examination of vulnerable and intimidated witnesses is a significant issue, as Andrew Norfolk, chief investigative reporter of The Times has underlined in his articles.

[2] The complainant of a sexual offence could previously be cross-examined about being a prostitute or about indiscriminate promiscuity in order to show that she was not to be trusted. There was a tendency to explore the victim’s past sexual experience to try and blemish her character. This sometimes had the reserve effect of putting the victim on trial. As a result, victims of sexual offences felt intimidated and were deterred from bringing their case forward. Section 41(1) of the YJCEA puts a significant restriction on the way the defence may conduct its case where the defendant is charged with a sexual offence.

Section 41(1) stipulates that if an accused is charged with a sexual offence, then no evidence can be adduced nor can questions be asked in cross-examination of the complainant’s sexual behavior, unless leave is obtained from the court. To add more, under section 34 of the Youth Justice and Criminal Evidence Act 1999 defendants who are charged with rape or certain other sexual offences, are not allowed to cross-examine the victim themselves. The restrictions in s 41 reduce trauma on the complainant from “being put under trial” and they encourage victims of sexual offences to come forward with their case. “Special Measures” are a series of provisions that help vulnerable and intimidated witnesses give their best evidence in court and help to relieve some of the stress associated with giving evidence.

The special measures available to vulnerable and intimidated witnesses include screens to shield the witness from the defendant, live link enabling the witness to give evidence during the trial from outside the court through a televised link to the courtroom, evidence given in private exclusion, removal of wigs and gowns by judges and barristers, video-recorded interview, examination of the witness through an intermediary who is appointed by the court to assist the witness to give their evidence at court, aids to communication to enable a witness to give best evidence through a communicator or interpreter, or through a communication aid or technique, provided that the communication can be independently verified and understood by the court. The special measures also include video-recorded cross examination (section 28) which is not yet in force. However the 1999 Act is highly criticised by researchers for doing nothing to address the fundamental issue of the traumatic experience of cross examination for victims. On the other hand a researcher named Birch also found that the measures for vulnerable witnesses had not been fully implemented nationwide and that the police and the Crown Prosecution Service had many difficulties in identifying who was vulnerable and therefore eligible for the special measures under the 1999 Act. Consequently during the process of identifying vulnerable witnesses, many witnesses who were in fact truly vulnerable remained unidentified and unprotected. This is evidence that the measures introduced by the Youth Justice and Criminal Evidence Act 1999 are not operating sufficiently enough to protect all the vulnerable witnesses as it fails to identify and protect many of them. Furthermore, in a recent article in The Guardian, Justice minister Damian Green says aggressive cross-examination from multiple defence barristers has left victims deeply traumatized. He raised concerns about the treatment of victims in the recent trial of a gang who ran a child prostitution ring. A girl had been sold to men across England since the age of 13 and she was cross-examined by seven defence barristers over 12 days. He says that victims have to endure a double trauma, first at the hands of those who have harmed them and then face torturous cross-examination and degrading questions from multiple defence counsels. He also adds that this is not the best way to obtain sound and accurate evidence to protect vulnerable witnesses, and that recent announcements such as enabling the use of pre-recorded interviewing in safe spaces go some way to redress the balance for victims. He also says that much more should be done, such as the better use of special measures and compulsory training for defence barristers on how to handle young and vulnerable witnesses. To add more, a girl who gave evidence in court about presumably being sexually abused by her father has told The Independent how aggressive cross-examination left her so traumatised that the case had to be abandoned. In the recent Oxford abuse trial, a witness was in such an emotional state during questioning that she had to halt the process repeatedly to throw up. Judges and ministers are considering proposals to make giving evidence less traumatic for child abuse victims. In fact there already exist some protections for child witnesses during trials which include getting judges and barristers to remove their wigs and allowing children to give testimony via video link from an adjacent room but legal experts say they do not go far enough. Pre-recorded cross-examination for child abuse victims was first proposed in 1989 and legalised in 1999 but the law has not yet been implemented till now which means that children continue to suffer needlessly. Another recent article in The Telegraph mentions that the Justice Secretary, Mr Grayling wants to give witnesses the chance to pre-record evidence for criminal trials to avoid cases such as that of Frances Andrade who killed herself after being cross examined at Manchester Crown Court. The 48-year-old mother of four and violin teacher took her life during the trial of choirmaster Michael Brewer.

The latter was later convicted of child sex offences against Frances Andrade when she was 14 and 15 years old. Andrade texted a friend three days before her death to say that she felt as if she had been “raped all over again” as Brewer’s barrister attempted to undermine her testimony. Mr Grayling said that vulnerable witnesses must in future be spared from the aggressive and intimidating atmosphere in courtrooms. He also added that the hostile treatment of victims and witnesses in court has nothing to do with fairness or justice and that it is not right that young and vulnerable victims are forced to relive that traumatic experience when cross-examined in court. Moreover, in a recent article by Dr Emily Henderson is found three main aspects of conventional cross-examination which the Court of Appeal targets for reform. First is the issue of miscommunication through the use of developmentally inappropriate language. Secondly, there is the use of suggestive questions. The third and the most overtly controversial is the use of cross- examination to confront the witness. The Court of Appeal said in the case of Barker that the task of the advocate is to formulate short, simple questions which put the essential elements of the defendant’s case to the witnessand to ensure that their questions are comprehensible to the witness.

The case of Barker concerned an appeal against conviction for the anal rape of a two year old child. The complainant was four by the time she was cross-examined and was the youngest person ever called in the Old Bailey. Barker appealed, inter alia, on the basis that a series of apparently nonsensical answers by the child under cross- examination showed that she had been incompetent to give evidence. The defendant’s counsel had tried to test the four year old child’s understanding of lying, using himself as an example.

Firstly, he asked the child to tell him his name, Bernard, and then asked whether his name was that of the police interviewer, Kate. The child could not remember his name therefore the defendant’s counsel tried another example. He asked the child if he told her it was Sunday, would that amount to a fib. The child nodded. However, when he asked what day of the week it was then the child suddenly announced “Your name is Bernard.” The Court’s response was that the problem was not in the child’s understanding but in the complexity and pace of questioning. The Court of Appeal found that the fault was in the counsel’s use of developmentally inappropriate language.

This is clear evidence that vulnerable and intimidated witnesses are not sufficiently protected. Next there is the problem of cross-examination which contaminates evidence by suggestion. In W and M, two boys aged 10 and 11 years old were convicted of sexual offences but in each case, the complainant, an eight-year old girl, had withdrawn her key accusations under cross- examination. The Court of Appeal however, concluded that the retractions were unreliable because they were obtained by the use of highly suggestive questioning such as ‘This happened, didn’t it?’ This is another evidence that the current law is not offering an adequate amount of protection to vulnerable witnesses.

The Court’s message is that cross-examiners must avoid contaminating the witness’s answers. Questions may be quite clear but not permissible because they pressure the witness to respond in one way or another. In the case of W and M, the court said that “there is undoubtedly a danger of a child witness wishing simply to please. There is undoubtedly a danger of a child witness seeing that to assent to what is put may bring the questioning process to a speedier conclusion than to disagree….. It is generally recognised that particularly with child witnesses short and untagged questions are best at eliciting the evidence. By untagged we mean questions [which] do not contain a statement of the answer which is sought.” In the case of E, the Court of Appeal repeated that heavily suggestive questions are not permissible because of the risk that the witness will become confused. There is also the issue of substantive challenges which are put to the witness during cross- examination to challenge the witness’s evidence. Telling children of tender years that they are lying can lead to confusion and worse, to capitulation. It has been shown in the case of E that young children are scared of disagreeing with a mature adult whom they do not wish to confront.Many children, even if there are honest, will find accusations of lying incredibly stressfuland their ability to respond meaningfully will be severely disrupted. In Barker, however, the Court declared that the detailed questioning desired by counsel was not necessary and that aspects of evidence which undermine the child’s credibility must be revealed to the jury but it is not necessarily appropriate for them to form the subject matter of detailed cross- examination of the child.

Also, in W and M, where the complainant was eight years old, the trial judge who made it clear that counsel need not feel that they must examine individual contentions item by item. Next, the case of E concerned allegations of physical assault by a step father on his six year old step daughter. The judge directed that defence counsel should not put questions to the witness merely for the purpose of a formal challenge. In my view, the fundamental purpose of cross- examination in a criminal trial is to investigate the evidence. Confusing and suggestive questions which exploit the developmental limitations of a vulnerable person should no longer acceptable. Neither should it be acceptable to use cross- examination to launch purely symbolic challenges.

This is not the proper function of cross-examination. It is sad to say that vulnerable witnesses are not sufficiently protected during cross-examination. In Barker the child was four and in E, the child was six and the Court did not criticise the failure to appoint a Registered Intermediary to assess the children’s communication abilities and advise the advocate on framing appropriate questions. The question to be asked is whether matters would have gone as badly awry as they did had a Registered Intermediary been appointed who could have assisted with communication with the young and vulnerable witnesses. Maybe it is high time that s 28 of the YJCEA 1999 is implemented which can, if not eliminate, mitigate the harm that vulnerable and intimidated witnesses suffer during cross-examination. 2,248 words

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[1] Vulnerable and Intimidated Witnesses and the Adversarial Process in England and Wales [article] International Journal of Evidence & Proof , Vol. 11, Issue 1 (2007), pp. 1-23

[2] See the series of articles by Andrew Norfolk in The Times May 2013–Sept 2013.

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