Pre-recorded cross-examination of vulnerable witnesses in sex cases

17 February 2014

Garden Court North Chambers’ Clare Ashcroft recently discussed the issues around pre-recorded cross-examination on BBC Radio 4’s Woman’s Hour, alongside a senior CPS prosecutor and a vulnerable witness. Clare discusses the issues further in an article for online legal magazine, The Justice Gap, which is reproduced below.

Pre-recorded cross-examination in sex cases

Giving evidence during a criminal trial can be a daunting prospect for anybody and this is only likely to be magnified for those who are classed as vulnerable and who are complainants in sex cases.  Since the Youth Justice and Criminal Evidence Act 1999, we have become used to pre-recorded police questioning of complainants being played as evidence in chief during the trial process, so why the caveat to this extending to cross-examination?

Criminal trials by necessity focus upon the evidence given by all witnesses, be they Prosecution or Defence.  In many sex cases, there is no forensic or medical evidence that supports or undermines the case for either side, so the jury has to analyse the evidence of the witnesses for consistency, veracity and credibility.  In sex cases more than any others, there will often be relevant material held by a third party.  Despite undertakings and protocols agreed between various CPSareas and Local Authorities, unfortunately it can be many weeks and more likely months before such material is identified, reviewed and produced at court, much less disclosed.  While the accused’s account provides the starting point for the Defence case, the content of third party material has an important role to play in testing the consistency and credibility of a witness.

While one of the aims of the present Pilot is to facilitate cross-examination of vulnerable complainants at an earlier stage during proceedings, this should not be at the expense of a fair trial for the accused.  Timely identification of the existence of third party material, together with earlier review of the same, is essential if the accused is not to be prejudiced by a cross-examination which is ignorant of the content of relevant material.

The alternative is to facilitate further questioning of the complainant at a later stage, in the event that such material has not been identified prior to the recording of cross-examination.  And this would appear to remove the MoJ’s stated intention behind the Pilot, namely to avoid the complainant having to be questioned on multiple occasions.

Whilst entire removal of the complainant from the process of having to attend court might allay the fears of a vulnerable witness, it can produce difficulties in a situation where, as a result of what has been said in evidence, the jury has afurther question that it would like to be asked.  The absence of the complainant would mean that relevant questions from the arbiters of fact (the jury) would remain unanswered.  Can this be said to facilitate a fair trial for the accused?

Clare Ashcroft is a barrister at Garden Court North Chambers.