Are some vulnerable witnesses more equal than others?

Prof Jonathan Doak, Associate Dean for Research, NLS https://www.ntu.ac.uk/staff-profiles/law/jonathan-doak

Dr Debbie Cooper, School of Law, University of Nottingham

Prof John Jackson, School of Law, University of Nottingham

“All animals are equal, but some animals are more equal than others.”

Animal Farm (1945), p. 122.

Cross-examination has long been regarded as a lynchpin of the adversarial method of criminal procedure. Media portrayals of criminal justice, including film and TV crime series, have often focused on the subtle methods of case construction, forensic questioning technique, showing how advocates can mislead and ‘trip up’ the witness before moving in for the final ‘kill’. Whilst dramatic effect is important, media portrayal is not always far from the truth. Advocacy manuals over the course of the past 50 years have drawn heavily on the analogy of a fight or duel between prosecution and defence, with forensic discussion of techniques how to ‘break’ or ‘destroy’ opposing witnesses. Research over the past three decades has, however, revealed that such techniques are unlikely to be conducive in uncovering the ‘truth’ and (perhaps more pressingly) vulnerable witnesses are left feeling highly distressed and traumatised. As regards sexual offences in particular, it is not uncommon for complainants to describe cross-examination as ‘worse’ than the offence itself.

Increasingly, governments around the world have introduced a range of special or alternative measures to ease the burden of testifying and thereby help them to give their ‘best evidence’ in a less stressful and more articulate manner. Examples include the use of screens, giving evidence remotely through a live link to the court, pre-recorded testimony and the use of intermediaries to help ‘interpret’ questions for young children or witnesses with learning disabilities (and relay their answers to the court). In the past decade, Ground Rules Hearings (GRHs) have become widely used in many cases involving vulnerable witnesses, where the judge and counsel (normally following the advice of an intermediary) will agree the manner and length of questioning, along with issues such as the need for comfort breaks and the use of appropriate language. Although evidence suggests that these reforms have helped alleviate some of the stress and anxiety associated with testifying, they have not altered the fundamental nature of cross-examination in adversarial systems. In the course of the past decade, however, there been a growing acknowledgement that there is a need for more fundamental changes to the nature of cross-examination itself.

A new paradigm is now evolving across many common law jurisdictions, which shifts cross-examination away from the traditional ‘advocacy’ model used by lawyers a means of winning cases towards a best evidence model whereby cross-examination is restricted, particularly when it comes to vulnerable and intimidated witnesses (VIWs), to producing the ‘best evidence’ for the court (Henderson, 2015). In what has been described as a new ‘revolution’ in practice (Lord Judge, 2013), advocates are being required to adapt their forensic techniques to suit the needs of the witness.

There is now an abundance of literature, guidelines, protocols and case law which stipulate how VIWs ought to be questioned. The Mapping the Changing Face of Cross-Examination project (funded by the Nuffield Foundation 2020-2023) seeks to ascertain the extent to which recent efforts to change the way in which VIWs are cross-examined are being reflected on the ground in the criminal courts. The over-arching aim of the research has been to map the precise nature and extent to which new approaches towards cross-examination are producing tangible change on the ground, and to identify specific issues and problems and develop evidence-based solutions that enhance the capacity of vulnerable people to participate within the trial.

Preliminary findings indicate a general acceptance that approaches to cross-examination have changed significantly and most changes have been for the better. Interviewees considered that the cross-examination experience was now much more positive for many vulnerable witnesses and there had been considerable movement away from the use of ‘coercive’ questioning techniques. However, interview data revealed that certain types of vulnerable witnesses were more advantaged than others, suggesting the existence of a perceived hierarchy between ‘more deserving’ non-defendant witnesses and ‘less deserving’ defendants. This gives rise to the question: are some vulnerable witnesses more equal than others?

The interview data on vulnerable defendants coalesced around four main themes. First, there was clearly a growing recognition of the vulnerability (and unmet needs) of defendants, but participants also indicated an awareness that structural provision for specific support is lacking. In particular, while there was recognition that the welfare of vulnerable defendants was important, formal provisions were lacking and provision of informal measures was inconsistent. It can be noted, for example, that under the relevant legislation (Pt II of the Youth Justice and Criminal Evidence Act 1999), defendants are specifically excluded from most special measures, and the eligibility threshold is higher. Provision for intermediaries is also scarce.

Secondly, clear distinctions were apparent between the approaches to cross-examination for vulnerable non-defendant and defendant witnesses. The research identified pockets of recognition, in particular for the need for to make special accommodations / adaptations to conventional cross-examination techniques for vulnerable defendant witnesses, but these are not routinely nor consistently applied.

Thirdly, it is clear that the role of the intermediary is evolving. Our data suggests that the role has evolved away from the ‘interpreter’ type role defined in the legislation, to a ‘facilitator’ type role which looks beyond the review and supervision of cross-examination questions. We saw this in relation to vulnerable witnesses, but it is more pronounced for vulnerable defendants in that, for many interviewees, a secure understanding of the proceedings in their entirety rather than just the narrow experience of cross examination is essential to securing a vulnerable defendant’s effective participation at trial.

Finally, whilst GRHs are increasingly commonplace for many non-defendant vulnerable witnesses, our research suggests that they are rarely held for vulnerable defendants. This is largely because the driver for a GRH is often (though not exclusively) the appointment of an intermediary, which is rare for a vulnerable defendant. A GRH may also come about because of the use of s.28 (pre-recorded cross-examination) or evidence on commission (Scotland), which is not available under statue for vulnerable defendants. Where a GRH does take place, it is almost never pre-trial because at that stage it is unclear whether the vulnerable defendant will give evidence. Where the defendant does give evidence, in the unusual situation where a review of cross-examination questions – either by the judge or the intermediary – takes place, it will most likely take place mid-trial. Welfare considerations, if they are discussed, may be considered at a pre-trial review rather than specific GRH.

In a lecture in 2013 the former Lord Chief Justice Lord Judge described the changes in the way children’s evidence is now heard as ‘revolutionary’. The changes that have taken place in the cross-examination of other non-defendant vulnerable witnesses could be described in a similar way.

On the basis of our preliminary data, however, it would seem that the same degree of progress has not been evident in the way vulnerable defendant witnesses are cross-examined. If cross-examination is to be truly metamorphosised for all categories of vulnerable witnesses who give evidence, this will need to include vulnerable defendant as well as non-defendant witnesses.

Further Reading:

Henderson, E. (2015). Theoretically Speaking: English Judges and Advocates Discuss the Changing Theory of Cross-Examination. Criminal Law Review, 12, 929-948

Jackson, J. Doak, J., Saunders, C., Wright, D. and Cooper, D. (2021) Mapping the Changing Face of CrossExamination in Criminal Trials: Interim Report for the Nuffield Foundation. Nottingham Trent University.

Judge, Rt Hon Lord. (2013). Half a Century of Change: The Evidence of Child Victims. Toulmin Lecture in Law & Psychiatry, 20 March 2013.