Pre-recorded cross examination and the expansion of “special measures”

The past 20 years has witnessed a sea change in the treatment of witnesses giving evidence in criminal proceedings. This sea change reflects numerous advances in social and psychological research identifying the harmful impact of the trial process on certain witnesses. In particular, trials involving witnesses classified as “vulnerable” or “intimidated” now proceed on a fundamentally different set of ground rules to those that applied in the last decades of the 20th century. This article describes the evolution of some of the most important of these ground rules – and explains how they are about to evolve yet again, with some potentially worrying consequences for the defence.

Throughout most of the 20th century, there were piecemeal provisions dotted across numerous statutes almost exclusively aimed at the protection of child witnesses. Indeed, the concept that an adult accused must always “face” his child accuser in court was dismissed at common law as long ago as 1919, when it was held to be lawful for a defendant to be compelled to sit out of sight of his daughter whilst she was giving evidence about his alleged ill-treatment. In a brief dismissal of the appeal, Coleridge J stated: “If the judge considers that the presence of the prisoner will intimidate a witness there is nothing to prevent him from securing the ends of justice by removing the former from the presence of the latter.”

As the 20th century drew to a close, Parliament brought into force Part II of the Youth Justice and Criminal Evidence Act 1999 (’the Act’). The Act consolidated into one statute the previously piecemeal provisions and comprehensively modernised the trial process for both adult and child witnesses requiring protection.

For example, the Act prohibited a defendant from personally cross-examining complainants alleging sexual offences and/or child witnesses in other sensitive cases. Before this prohibition, hostile questioning of these trial participants by the defendant had long been criticised for exacerbating their inherent vulnerability or fear of intimidation. This feature of the Act was generally heralded as a welcome and long-overdue development.

The Act also introduced safeguards to enable witnesses classified as “vulnerable” or “intimidated” to provide their evidence with the protection of a range of “special measures.”. Vulnerable witnesses were those eligible for assistance on the grounds of age (i.e. they are under 18 years old) or incapacity (i.e. they suffer from a mental disorder or otherwise have an impairment of intelligence or social functioning). Intimidated witnesses were those eligible for assistance on the grounds of fear or distress about testifying. For both categories of witness, research indicated that the intimidating formalities of being questioned in a courtroom, whether by the prosecution or the defendant’s lawyers, especially with the defendant physically present, was often detrimental to the quality of their witness evidence. The “special measures” introduced by the Act were designed to remove these obstacles and thereby create a more appropriate environment in which vulnerable and intimidated witnesses could give their evidence.

Many of these special measures, such as the removal of wigs and gowns in the courtroom (for vulnerable and intimidated witnesses), and the use of screens and communication aids (for vulnerable witnesses only), were implemented swiftly and caused little to no widespread controversy. (Indeed, many of these lower impact measures are also afforded to vulnerable defendants whose evidence would be assisted by them).

Other special measures created by the Act, which fundamentally changed the dynamic of the traditional adversarial trial process, particularly of cross-examination, have experienced a longer and more arduous journey to implementation. To date, for vulnerable and intimidated witnesses alike, these include the use of live-link where witnesses are questioned in a location outside the courtroom (section 24), the giving of private evidence (section 25 – in exceptional circumstances only) and pre-recorded interviews as evidence-in-chief (section 27).

To take the last of these examples, the use of pre-recorded interviews as examination-in-chief (section 27) has now been in force for many years, to a greater or lesser extent, in courts across England and Wales. Witnesses are identified as being vulnerable or intimidated at a very early stage of an investigation, and their evidence is taken by way of a video-recorded interview (’VRI’) rather than a written statement. The environment, interview technique and lines of questioning are all carefully managed. The witness’s evidence is or should be taken in line with formal guidance (known as achieving best evidence (’ABE’)) and usually by trained police officers in the presence of an appropriate adult or supporter.

Where the case proceeds to court, certain categories of witness are automatically eligible to have their VRI played as their evidence-in-chief unless they express a desire to opt-out. These include witnesses who are vulnerable on account of their age (i.e. those under 18) and a restricted category of intimidated witnesses who are (a) complainants of sexual or modern slavery offences or (b) in a prescribed list of predominantly violent firearms/bladed article related offences (sections 17(4) and section 17(5)). In respect of witnesses falling outside this definition, the prosecutor must apply to the court for special measures to be applied. Where a court is satisfied that the quality of a witness’s evidence is likely to be “diminished by reason of fear or distress,” it can direct that the VRI (or extracts of it) be played to the jury in lieu of evidence in chief. A witness then proceeds to be cross-examined live, albeit usually via a video-link or with the use of screens.

After seven years of pilot schemes, 2020 looks set to be the year in which the final piece of the special measures jigsaw falls into place – the widespread roll-out of pre-recorded cross-examination under section 28 of the Act. As noted above, cross-examination by the defendant personally has long been abolished for certain categories of witness, but cross-examination by the defendant’s lawyers is permissible. This latest special measure makes inroads into a key defence right. As of August 2020, pre-recorded cross-examination was already available at 34 Crown Courts across the country in respect of witnesses classified as vulnerable under section 16 of the Act (provided they have also been granted the special measure of pre-recorded interviews as evidence-in-chief). Its expansion to include the restricted category of intimidated witnesses under sections 17(4) and (5) (see above) is currently the subject of pilot schemes at Kingston, Liverpool and Leeds Crown Courts, with further roll-out to be determined according to the experiences of those courts.
If previous consultations and pilot schemes are anything to go by, “success” or “failure” will be evaluated predominantly according to the experience of the witness rather than the impact upon the defendant, in line with the stated aims of the legislation.

For example, in its 2016 evaluation of the initial pilot scheme on section 28 of the Act, the Ministry of Justice interviewed 40 individuals who had participated in cases involving pre-recorded cross-examination. Of those, only two were exclusively advocates for the defence. The two key issues around which the MoJ based this evaluation were whether pre-recorded cross-examination improved the witness’s recall of relevant events and whether it improved the witness’s experience of the court process. The evaluation concluded that the potential disadvantages of using pre-recorded cross-examination were that (a) a witness could be recalled in the event of new information emerging, (b) a jury could feel distanced from a witness’s evidence and therefore less likely to convict, and (c) the police and prosecutor could seek to bolster their case between the recording of the cross-examination and the beginning of the rest of the trial.

Other than this last perceived disadvantage, the evaluation largely ignored the impact of pre-recorded cross-examination on the defendant’s perception of fairness. This was a missed opportunity, as this latest special measure has the potential, if misused, to damage the integrity of the trial process.

Firstly, the impact of a section 28 designation is that the pre-trial process becomes geared towards expediency. The priority is achieving certainty and finality for the witness undergoing pre-recorded cross-examination. Whilst this expediency is laudable in principle, in practice it risks the defence being unable to cross-examine a witness effectively because such cross-examination may occur before the defence has been provided with all disclosure to which it is entitled. According to judicial guidance, “applications for extensions of time for service of disclosure by either party should generally be refused.” In cases where all police enquiries are complete and the prosecution has fully complied with their disclosure obligations by the time of the pre-recorded cross-examination hearing, this guidance is entirely reasonable.

However, in this firm’s experience, such compliance is far from the norm, particularly in complex Crown Court cases involving electronic devices or third-party evidence. Recent scandals involving police and prosecutorial non-disclosure (for example, the Liam Allen case in January 2018) have highlighted the potential for serious miscarriages of justice as a result of a failure to provide material to the defence which clearly undermines the account of a complainant – or indeed a prosecution witness. In section 28 cases, where a complainant or prosecution witness is cross-examined well in advance of trial, the defence will face an even greater burden in (a) fighting for relevant material to be disclosed at an early stage, and (b) persuading a potentially unreceptive court that a witness should be re-examined when that further material is disclosed.

Secondly, section 28 cases will often mean that a key or sole witness in a case is never questioned during the trial process itself. This is important because it is hardly unusual for important evidence to emerge, for the first time, during a trial. For example, inconsistencies exposed in cross-examination between the complainant and a prosecution witness. Any such evidence that emerges during the trial – but about which the section 28 complainant or witness has not been questioned – means that the defence will need to make a tactical choice about whether to apply to recall the complainant or witness to court. In circumstances where an inconsistency has led to a key question being left unanswered, the defence may consider that the lack of an answer could foster reasonable doubt in the minds of the jury, thereby increasing the chances of an acquittal. However, where the defence consider that a question must be answered in order for the proceedings to retain their fairness, they risk the perception of aggression or heavy-handedness in bringing a vulnerable person to court unexpectedly. Whilst a jury, properly directed by a judge, should be required to put aside any negative inference from this course of action, it is difficult to properly assess the impact this could have on their perception of the defendant.

Finally, the section 28 cross-examination hearing will mark the first day of trial, despite it being many weeks or months in advance of the rest of the case being heard. This is crucial for sentencing, as the sentencing credit available for a guilty plea is deemed all but lost as soon as the trial commences. A defendant may receive a one-third discount for a guilty plea at the first opportunity, which is generally the first court appearance, but this reduces in increments until the first day of trial, at which point a one-tenth discount is available. A section 28 cross-examination hearing therefore places indirect pressure on a defendant to plead guilty at an earlier point in time in order to gain the maximum sentence reduction. The real-life impact of this reduction cannot be overstated.

It remains to be seen how the courts will deal with cases in which disclosure of material which undermines the prosecution case – or which assists the defence case – emerges following the pre-recorded cross-examination. Likewise, how an already overstretched criminal justice system can be expected to cope with an increased number of cases requiring strict timetabling and greater adherence to fixed directions. The courts are already creaking under the weight of a vast caseload that far pre-dates, but has been exacerbated by the coronavirus pandemic. The introduction of the final piece of the special measures jigsaw, which will achieve the valuable aim of protecting many vulnerable and intimidated complainants and witnesses, will add yet another strain to the criminal justice system, and will place an even greater burden on investigators and prosecutors to ensure the integrity of the trial process.