There may further delays in hearing evidence at court. A survey of waiting times at English courts found children waited an average of nearly six hours from their arrival at Crown Court to giving their evidence, with a range from 20 minutes to 31 hours; 73% waited over two hours (Plotnikoff & Woolfson, 2009). Delays at court can be due to a variety of factors: equipment failure; other witnesses taking longer than anticipated; the judge having to hear a bail application in another court; or counsel putting forward new legal arguments. Witness care staff can be invaluable in these circumstances in keeping the witness entertained and informed. Staff can also relay concerns discreetly to the court if needs arise, such as an elderly witness who requires an afternoon nap or a young witness who may be tired and sleepy at the end of a long day; best evidence cannot be expected in such circumstances (Hunter & Kirby, 2013). The Equal Treatment Bench Book urges judges to start cases involving vulnerable witnesses in the afternoon, so that legal matters can be disposed of prior to hearing the witness fresh on the following morning.
The Witness Charter (Ministry of Justice, 2013c) states that “If you are a vulnerable or intimidated witness, the prosecution or the defence lawyer will ask the court to give the case priority when setting the times and dates of hearings” (Standard 9) and once at court “every effort will be made to ensure that you will give your evidence promptly if you are a vulnerable or intimidated witness” (Standard 13). However, it is unclear how these good intentions will survive the current budgetary reductions in personnel and resources within the criminal justice system in the United Kingdom (McClanaghan, 2013).
14.5.2 Cross-examination
A second major area of difficulty for vulnerable witnesses concerns cross-examination at court. As was noted in Chapter 13 , one of the principal functions of cross-examination in the adversarial system is to undermine the prosecution’s case, by showing that the witness’s evidence is unreliable. A skilful barrister does not have to demean a witness in order to make their point. However, the strategies sometimes adopted by barristers to attempt to undermine the credibility of vulnerable witnesses seem more calculated to bemuse or intimidate than to establish the facts (Plotnikoff & Woolfson, 2012).
Manipulative, unkind or offensive cross-examination can have long-term consequences for the witness’s self-esteem, and the effectiveness of their testimony. Cross-examination has been repeatedly reported as one of most distressing aspects of the legal process for vulnerable witnesses (e.g. Hamlyn et al., 2004; Plotnikoff & Woolfson, 2004, 2009, 2012, 2015; Spencer and Lamb, 2012; Stanko & Willams, 2009). Research has demonstrated that the most reliable evidence comes from “open” questions – those that invite extended narrative from the witness (see Chapter 7 ) – but such question appear to be rarely used in cross-examination. A New Zealand study (Hanna, Davies, Crothers, & Henderson, 2012) observed young witnesses being cross-examined at court. Two-thirds of child witnesses (65%) were accused of lying by the defence and 80% of the younger children and 71% of teenagers later admitted they had not understood all the questions they were asked (see also Plotnikoff & Woolfson, 2009). Tactics observed seemed deliberately designed to confuse the young witnesses, including the overuse of closed (yes/no) questions, complex vocabulary and grammatical constructions, and intensive questioning on minor details. Another favoured tactic involved rapid switching between topics, with no signal as to the new direction of questioning (Hanna et al., 2012).
Questions and comments can be repeated in a slightly different form in the hope of eliciting a confusing or contradictory answer. Such tactics can be particularly damaging for witnesses with a learning disability, such as Down syndrome or autism, who may change their answer in the belief that their first answer must have been wrong (Sanders et al., 1997; Green, 2001; Plotnikoff & Woolfson, 2012). When one young witness, “Abby”, gave evidence in the trial of a number of men involved in a Telford-based sex ring, each defendant retained his own lawyer, resulting in her being repeatedly told that she was a liar and fantasist by seven different defence barristers over three weeks (Tickle, 2013). The criminal procedure rules have recently been amended in an attempt to address this problem: if a witness is identified as vulnerable, then the court must hold a ground rules meeting prior to trial, where potential abuses of this kind might be confronted and the particular questions to be addressed by each barrister agreed with the presiding judge.
Defence advocates are permitted by statute to ask leading questions. Observations suggest that they ask disproportionate numbers of such questions of adult rape complainants compared to the prosecution (Kebbell, Deprez, & Wagstaff, 2003). A particularly pernicious form of leading question for children is the so-called “tag” question, where a proposition is put to the witness to which they are invited to agree (“Your uncle never asked you to touch his penis, did he?”). This has been described as “one of the most powerfully suggestive forms of speech that we have in the English language” (Walker, 1994).
Spencer and Flin (1993, p. 307) observed that lawyers seemed extremely concerned with the dangers of leading questions when posed by social workers, doctors or police officers in the early stage of an investigation, but showed no concern over their own use of such questions in cross-examination and the impact that these might have on the quality of the child’s evidence. Research supports the view that the cross- examination of children can have a detrimental impact upon both the accuracy and credibility of their testimony. Zajac and Hayne (2003) had 5- to 6-year-old children take part in a series of staged events, the content of which they were later examined in a recorded investigative interview. The answers the children gave in this interview were generally accurate. Subsequently, they were cross-examined, using question forms taken from actual child witness trials. After cross-examination, children changed 85% of their original statements, but the changes were as likely to be from truth to error as from error to truth. A later study with 10- to 11-year-old children produced fewer changes, but the same disturbing pattern (Zajac & Hayne, 2006).
14.6 CONCLUSIONS
In 2012, John Spencer, the distinguished advocate of legal reform, looking back on a quarter of a century of change in the courts, commented: “One part of me is astonished by how much has been achieved, but another part is disappointed at how regularly the complaints that were made 25 years ago about the way child witnesses are treated by the criminal courts are still heard today” (Spencer, 2012, p. 2). The same comment could be made in relation to vulnerable witnesses in general. Procedural changes, typified by the special measures legislation, have had a powerful impact on the courts and on the wellbeing of the witnesses who are given access to them (e.g. Hamlyn et al., 2004). The controversies over pre-recorded cross-examination and intermediaries, and the practice of cross-examination, highlight clearly the tension between testing witnesses’ evidence in court, and prioritising their needs and welfare. Of course, the defendant has a right to a fair trial, and the duty of the court is to ensure that this occurs. However, there is also widespread recognition at national level of the difficulties that still face children and other vulnerable witnesses, particularly from delays and overly aggressive cross-examination.
As regard cross-examination, there is no shortage of good intentions. The official Equal Treatment Bench Book (Judicial College, 2013) encourages magistrates and judges to actively manage cases involving vulnerable witnesses and to minimise distress as far as possible by being vigilant for age-inappropriate or ambiguous questions. Achieving Best Evidence (Ministry of Justice, 2011) echoes this advice and also encourages prosecution and defence counsel to meet with vulnerable witnesses prior to taking evidence, a move approved by the Law Society and the Criminal Bar Association (Ministry of Justice, 2011, p. 201). The Prosecutor’s Pledge, promoted by the Crown Prosecution Service (CPS, 2005), states that prosecutors will: “Protect victims from unwarranted or irrelevant attacks on their character and may seek the court’s intervention where cross-examination is considered to be inappropriate or oppressive”.
The Ministry of Justice published its own report on ways of reducing distress for witnesses in cases of sexual violence (Ministry of Justice, 2014). The report advocated greater use of existing facilities such as intermediaries and the live link and more assertive case management by judges, and more effective use of preliminary hearings to identify cases involving sexual violence and vulnerable witnesses. Meanwhile, the Criminal Bar itself has published guidance on examining vulnerable witnesses on its “Advocates Gateway” portal6 designed to provide “practical, evidence-based guidance on vulnerable witnesses and defendants”. Prosecutors and judges are expected to have completed courses under the Gateway scheme and be versed in its recommendations. Sadly, the one group for whom such provisions do not yet apply are defence barristers.
There are signs that this might just be about to change. The 2015–16 Victims, (Bill of Rights) bill is currently before Parliament, which would sweep up a large number of discretionary measures to assist witnesses and turn them into law. This means if such measures are not available to vulnerable witnesses, then the victim can seek redress through the courts. Section 6 of the draft bill demands that victims of crime “are not subjected to unnecessary delay by any other party to the proceedings”, while Section 7 requires that “the Secretary of State shall ensure that judges, barristers and solicitors involved in criminal cases involving sexual and domestic violence undertake specialist training”. Much will depend upon how “unnecessary delay” is construed and whether the “specialist training” includes some discussion of productive and destructive questioning styles in cross-examination. Changing behaviour requires a change in attitude as much as a change in the law. As long as winning a case trumps playing by the rules in cross-examination and judges hesitate to intervene for fear of being accused of violating neutrality, we will not be holding our breath.
14.7 SUMMARY
Most witnesses find testifying at court a stressful experience, particularly where a witness is vulnerable by reason of age or mental or physical disability and/or a victim of crime.
Among the concerns of child witnesses who go to court are: suffering harm from defendants or their associates; rejection and the break-up the family; and being disbelieved or embarrassed when giving evidence.
In recent years, the courts in England and Wales have introduced a variety of special measures to assist vulnerable witnesses of all ages in giving their best evidence while still preserving the adversarial nature of the trial process.
Special measures include: the provision of pre-recorded evidence in chief; the use of a CCTV link to enable the witness to testify from outside the courtroom; social support within the courtroom; and the use of an intermediary to assist a witness with communication difficulties.
Action on these issues needs to be matched by measures to tackle delays and postponements in hearing cases at court and a more proactive approach to overly aggressive cross-examination.
Recognition of the needs of vulnerable witnesses is widespread within countries that share the common law tradition of England and Wales and there have been many attempts to legislate for change. However, the essentially adversarial nature of this legal process makes substantive equality for the vulnerable victim still an elusive goal.
ESSAY/DISCUSSION QUESTIONS
What makes victims and witnesses vulnerable? How have special measures addressed the needs of vulnerable witnesses?
Have recent attempts to safeguard witnesses in criminal courts in England and Wales gone far enough to meet their needs?
How far has the introduction of special measures eased the position of vulnerable witnesses testifying at court?
To what extent can the needs of vulnerable witnesses and the rights of defendants be reconciled at court?
ANNOTATED READING LIST
Lamb, M. E., La Rooy, D. J., Malloy, L. C., & Katz, C. (Eds.) (2011). Children’s testimony: A handbook of psychological research and forensic practice. Chichester, UK: Wiley. A successor to the handbook edited by Westcott et al. (2002) also in this list; offers comprehensive coverage of a range of issues pertaining to child witnesses, with a particular emphasis on the use of the NICHD protocol for interviewing children.
Newman, M., (2014). Revealed: Why the police are failing most rape victims. Retrieved from https://www.thebureauinvestigates.com/stories/2014-02-28/revealed-why-the-police-are-failing-most-rape-victims A well-informed journalist’s account of recent research on the continuing attrition in rape case convictions and the possible causes.
Plotnikoff, J., & Woolfson, R. (2015). Intermediaries in the criminal justice system: Improving communication for vulnerable witnesses and defendants. Bristol: Policy Press. A particular focus on intermediaries, but also provides an excellent overview of the progress and pitfalls in the treatment of vulnerable witnesses by the British legal system.
Radcliffe, P., Gudjonsson, G., Heaton-Armstrong, A., & Wolchover, D. (Eds.) (2016). Witness testimony in sexual cases; Evidential, investigative and scientific perspectives. Oxford: Oxford University Press. Provides a legal perspective on the treatment of child and adult complainants of sexual assault, but with contributions from psychologists and psychiatrists.
Toglia, M. P., Ross, D. F., Pozzulo, J., & Pica, E. (Eds.) (2014). The elderly eyewitness in court. New York: Psychology Press. The first book devoted to the elderly in court: the particular difficulties they face and their potential reliability as witnesses.
Westcott, H. L., Davies, G. M., & Bull, R. H. C. (Eds.) (2002). Children’s testimony: A handbook of psychological research and forensic practice. Chichester, UK: Wiley. A comprehensive collection of papers covering a range of child-related issues, including memory, interviewing and the courts.
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Avail Consulting (2004). No witness, no justice (NMNJ). Pilot evaluation: Executive summary. Retrieved from http://www.cps.gov.uk/publications/docs/nwnj_pilot_evaluation_report_291004.pdf
Birdsey, E., & Snowball, L. (2013). Reporting violence to police: A survey of victims attending domestic violence services. Retrieved from http://www.bocsar.nsw.gov.au/Documents/BB/bb91.pdf
Bottoms, B. L., Najdowski, C. J., & Goodman, G. S. (2009). Children as victims, witnesses, and offenders: Psychological science and the law. New York: Guilford Press.
Brennan, M., & Brennan, R. E. (1988). Strange language: Child victims under cross-examination. Wagga Wagga, NSW: Riverina Murray Institute of Higher Education.
Burton, M., Evans, R., & Sanders, A. (2006). Are special measures for vulnerable and intimidated witnesses working? Evidence from the criminal justice agencies. London: Home Office. Retrieved from: http://collection.europarchive.org/tna/20080205132101/homeoffice.gov.uk/rds/pdfs06/rdsolr0106.pdf
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College of Policing (2016). Working with victims and witnesses. Retrieved from https://www.app.college.police.uk/app-content/investigations/victims-and-witnesses/
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CPS. (2014, September 15). DPP welcomes convictions under pilot scheme of pre-recorded cross- examination of victims. CPS News Brief. Retrieved from http://blog.cps.gov.uk/2014/09/dpp- welcomes-convictions-under-pilot-scheme-of-pre-recorded-cross-examination-of-victims-.html
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witnesses in the criminal justice system. Retrieved from https://www.justiceinspectorates.gov.uk/cjji/inspections/joint-inspection-report-on-the-experience-of-young-victims-and-witnesses-in-the-criminal-justice-system/#.Vg02Esdwbcs
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Davies, G. M. (1999). The impact of television on the presentation and reception of children’s evidence. International Journal of Law and Psychiatry, 22, 241–256.
Davies, G. M. (2010). Safeguarding vulnerable and intimidated witnesses in the courtroom: Are the “special measures” working? In J. Adler , & J. Gray (Eds.), Forensic psychology: Concepts, debates and practice (2nd ed.), (pp. 181–198). Cullompton, Devon: Willan Publishing.
Davies, G., Bull, R., & Milne, R. (2016). Analysing and improving the testimony of vulnerable witnesses under the “Achieving Best Evidence” protocol. In P. Radcliffe, G. Gudjonsson, A. Heaton-Armstrong , & D. Wolchover (Eds.), Witness testimony in sexual cases; Evidential, investigative and scientific perspectives (pp. 207–220). Oxford: Oxford University Press.
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