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14 Safeguarding Vulnerable Witnesses
GRAHAM M. DAVIES AND HELEN L. WESTCOTT1
CHAPTER OUTLINE
14.1 INTRODUCTION
14.2 WITNESSES’ FEARS AND PERCEPTIONS ABOUT GOING TO COURT
14.3 PREPARING WITNESSES FOR COURT: PREPARATION AND SOCIAL SUPPORT IN THEORY AND PRACTICE
14.4 PROTECTING WITNESSES AT COURT THROUGH SPECIAL MEASURES 14.4.1 Screens and the Live Link
14.4.2 Pre-recorded Evidence-in-Chief
14.4.3 Removal of Court Dress by Judges and Other Court Officials
14.4.4 Taking Evidence in Private
14.4.5 Intermediaries and Aids to Communication
14.4.6 Pre-recorded Cross-examination
14.5 STILL UNMET NEEDS 14.5.1 Delays and Postponements
14.5.2 Cross-examination
14.6 CONCLUSIONS
14.7 SUMMARY
LEARNING OUTCOMES
BY THE END OF THIS CHAPTER, YOU SHOULD BE ABLE TO:
Provide an overview of ways of safeguarding witnesses in order that they give their best evidence
Understand witnesses’ fears and perceptions about going to court, preparing witnesses for court and protecting witnesses at court
Understand the obstacles that witnesses still face when they go to court.
14.1 INTRODUCTION
Francis Andrade, a gifted violinist, was just 48 when she took her own life. A week previously she had given evidence at a criminal trial involving two former teachers at her music school, whom she accused of repeatedly sexually abusing her as a teenager. She chose to confront the defendants, giving her evidence from the witness box in court before being cross-examined by counsel for the defence. This followed a familiar pattern: Andrade’s testimony was “simply not true”; she was “indulging in the realms of fantasy”; in summarising her evidence, counsel claimed: “what you have told this jury is a complete pack of lies” (Gentleman, 2013). Afterwards, her son described how his mother burst into tears as she came out of the courtroom. Later, Andrade likened her courtroom experience to being “raped all over again”. The day after the presiding judge directed the jury to acquit the defendants of some of the changes because of legal technicalities, Andrade took a fatal overdose.
The judge elected to continue the trial, warning all parties that news of Andrade’s death should not be disclosed to the jury. Subsequently, the jury found both defendants guilty of five charges of indecent assault. At the end of the trial the judge complimented all counsel on their professional conduct, saying of the defence that their approach was “perfectly proper and correct” (Pidd & Ibbotson, 2013). Andrade’s lawyer quoted her as having said: “I am not in the realms of fantasy and I really understand why so many cases have not come to court” (Gentleman, 2013).
Cases like that of Frances Andrade highlight the difficulties that vulnerable witnesses face in having their voices heard and valued within our adversarial system of justice, with its tradition of all parties having “their day in court” and the testing of evidence through the process of cross-examination at trial (see Chapter 13 for further detail). What types of witness can be thought of as vulnerable? The Youth Justice and Criminal Evidence Act (1999) formally defined them as follows:
Children under 17 years of age (later extended to 18 years of age)
Witnesses with a physical disability or disorder
Witnesses with a learning disability or mental disorder
Distressed witnesses (including victims of sexual offences)
Witnesses in fear of intimidation
The Home Office (1998) estimated that around 9% of the 160,000 prosecution and 50,000 defence witnesses appearing in court at that time fell into the “vulnerable” category, though later estimates have put the figure as high as 24% (Burton, Evans, & Sanders, 2006): almost three times the initial estimate.
What, then, might safeguarding mean for vulnerable witnesses in the courtroom? First, safeguarding requires that the stress of testifying be minimised as much as possible. Second, the circumstance (or process) of giving evidence in court needs to be made as effective as possible for vulnerable witnesses. Finally, the implications of the court experience for witnesses as they move on to the rest of their lives need to be considered. In this chapter, we are going to address these issues through consideration of:
witnesses’ fears and perceptions about going to court
preparing witnesses for court
protecting witnesses at court through special measures
still unmet needs.
14.2 WITNESSES’ FEARS AND PERCEPTIONS ABOUT GOING TO COURT
Looking back At Francis Andrade’s case, could her death have been avoided by greater sensitivity to her needs and better use of existing facilities for witnesses at court? It is important that witnesses’ fears and perceptions about going to court are acknowledged, since they can contribute directly as well as indirectly to the success or otherwise of a prosecution. If witnesses have extreme fears, for example that they will not be believed, or will not be treated fairly, then they may decide to withdraw their complaint. Studies of attrition figures from the turn of the millennium of cases involving vulnerable witnesses portrayed a rather bleak picture, with around 70% of cases being dropped at the initial stages of an investigation. For example, Kelly, Lovett, & Regan (2005) found that 14% of rape complainants declined to complete the initial process, another 14% withdrew at the investigative stage, and a further 2% withdrew at the prosecution and trial stages (see Davies & Westcott, 2006, for a review). More recent research suggests these figures have not significantly improved (e.g. Hester, 2013; Stern, 2010). Such high attrition rates mean that many complainants have not been able to give their evidence in court and the accused, if guilty, may go on to carry out further offences. Others may wait many years before disclosing abuse or suffering. Frances Andrade kept silent for 30 years about the abuse she had suffered as a young woman before it was disclosed to the police (Pidd & Ibbotson, 2013). Likewise, only a handful of complaints were recorded against the entertainer Jimmy Savile; following his death, police received over 700 credible accounts of abusive acts perpetrated by him (Davies, 2014; Gray & Watt, 2013).
Studies of victims and witnesses have reported a range of concerns about participating in the investigative and prosecution process, and giving evidence at court, which are summarised in Box 14.1.
BOX 14.1 VICTIMS’ AND WITNESSES’ FEARS ABOUT PARTICIPATING IN A PROSECUTION AND/OR TRIAL
Fear of harm by the abuser
Fear of rejection by the family
Fear of not being believed
Fear of others’ reactions (e.g. carers being upset or professionals being insensitive)
Fear of family break-up, including their own removal from the family
Fear of embarrassment
See Birdsey and Snowball (2013), Hall (2012) and Kelly, Lovett, & Regan (2005) for reviews.
Additionally, the victim or witness may be feeling guilty, responsible, ashamed or intimidated (see Case Study 14.1). Family members may knowingly or unknowingly exert pressure on the witness to retract their statement or associates of the accused may actively seek to intimidate the witness to withdraw. Such intimidation seems to be a particular problem facing vulnerable witnesses. Hamlyn, Phelps, Turtle, & Sattar (2004) reported that 53% experienced some form of intimidation in the period leading to trial, coming primarily from the accused (36%) or from the accused’s family (21%). Since Hamlyn et al.’s survey, the UK police have introduced new procedures designed to combat intimidation, but the effectiveness of these measures has yet to be assessed (see College of Policing, 2016).
Many vulnerable witnesses do find the court experience extremely difficult, illustrated particularly in research with children (e.g. Plotnikoff & Woolfson, 2004, 2009; Wade & Westcott, 1997). Consider Case Study 14.1, which presents an extract from Mary’s account.
CASE STUDY 14.1 MARY
I am 12 years old. The man next door, Uncle Bob, he and his wife wer
e good friends of our family, he did sex things to me for about three years. All our family liked him and I did too. He was always very kind to me and used to babysit for us…I can’t remember when it all began but he started doing things to me that I didn’t like. At first I didn’t understand what was happening and kept thinking I must be imagining things. I couldn’t get him to stop although I asked him to. He made me feel like it was my fault and he told me nobody would believe me if I did say anything…one day when the teacher at school asked me what was the matter, it just all came out. She said she would tell my mum and then everything would be alright. My mum was really upset but she believed me… I tried not to think about going to court but one day my mum told me it was going to be next week.
We waited and then somebody came to tell me that I couldn’t go into the television link room because it was being used by somebody else. They said I could give my evidence behind a screen but that meant I had to go into the courtroom. They said that if I wanted to wait for the television link we’d have to come back another day … I felt I had to go ahead with it that day. I don’t think I would have ever gone through with it if I hadn’t done it then.
The first barrister was okay but he didn’t ask me much and I didn’t always understand what he was saying…it was really embarrassing to say the details. I didn’t tell them everything. I just couldn’t. When the next barrister questioned me, she had a smiley face and made jokes with me. I began to think it wasn’t going to be so bad. Then she seemed to change. She kept asking me about dates and times and I couldn’t remember them exactly. I told her I could remember what had happened to me but not when. I didn’t understand some of the long words she used… She called me a liar. I still don’t understand half of what went on. I felt dirty. They made me feel like I didn’t exist. If I had known how it was going to be like at court, I never would have gone through with it.