Cross-examination of Vulnerable Witnesses

Ann Coffey Excerpts

Wednesday 6th July 2016 Commons Chamber

[Ann Coffey (Stockport) (Lab)]

Giving evidence can be a daunting process. A courtroom is not a hospitable environment for anyone but a lawyer. For most people, the surroundings are intimidating and the procedures strange. It is even harder for children and other vulnerable witnesses, who struggle with the stress of having to re-live difficult experiences in a room full of strangers.

We have repeatedly heard about vulnerable witnesses being subjected to courtroom trauma at the hands of over-zealous defence lawyers. Last year, a 13-year-old child was accused of lying during the trials of the so-called Banbury sex gang because it was “better to be a victim than a slag”. One young girl I spoke to in the course of preparing the report, “Real Voices: Child Sexual Exploitation in Greater Manchester”, told me that being cross-examined was one of the worst experiences of her life. She said:

“There is not a word to describe how bad it was. It was like one attack after another. One of the barristers was not even asking me questions; he was just shouting at me”.

In cases involving sexual offences in particular, we know that, too often, victims fail to report the incident or to pursue prosecution because they fear facing humiliation in court. In all kinds of cases, the testimony of vulnerable witnesses continues to be undervalued and ignored. Of course, there have been big strides in improving the situation for vulnerable witnesses in recent years, particularly though the use of registered intermediaries and other special measures, but we are still a long way from a situation in which all witnesses can give their best and most accurate evidence, no matter their vulnerabilities.

There is one part of the trial process in which vulnerable witnesses continue to be subjected to unnecessary and unjustifiable distress, namely cross-examination. We all agree that the right of the defendant to a fair trial and a robust defence is absolute and essential. However, research has repeatedly shown that traditional cross-examination techniques are not appropriate for vulnerable witnesses. A study conducted by Joyce Plotnikoff and Richard Woolfson suggested that at least half of child witnesses do not understand the questions put to them in court—a figure rising to 90% for those under the age of 10. How can these children possibly give their best evidence in these circumstances?

Building a justice system in which no one is disadvantaged is in the interests of everyone, including defendants. It is true that many judges are now trained to intervene when barristers ask questions that are beyond the cognitive ability of witnesses. This is all to the good, but it is not enough. Aggressive and disorientating cross-examination techniques are still widespread, despite repeated judgments from the Court of Appeal that they are not acceptable where vulnerable witnesses are concerned.

[Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)]

It is extremely important that children are able to give good and reliable evidence. Does the hon. Member agree that, as research indicates that children are suggestible, leading questions should not be used in the court process?

[Ann Coffey]

I entirely agree with the hon. Lady. She is quite right. What we want is credible evidence, not evidence extracted by bullying.

The recent spate of high-profile sexual exploitation trials have provided stark examples. One young victim giving evidence in the Telford sex gang trials was repeatedly accused of lying and being naughty, and one barrister even demanded to know whether she repented her sins. Overall, she spent 12 days being cross-examined by a series of defence lawyers. As it stands, judges have no real power to limit the duration of questioning or the number of lawyers who can cross-examine a highly vulnerable witness in court. Practice directions encourage judges to set limits, but despite this judicial practice remains very uneven. That is why the measures in section 28 of the Youth Justice and Criminal Evidence Act 1999 are so important. This section provides for the cross-examination of vulnerable witnesses to be filmed at a pre-trial hearing and played to the jury at trial.

[Jim Shannon (Strangford) (DUP)]

This is a vital issue, and I am surprised not to see more Members in the Chamber to support the hon. Lady. There is a great need for young children involved in such cases to have parents or family members close by and to be screened off, so that the investigations and the questioning can be done from a distance. Does the hon. Lady agree—perhaps the Minister can touch on this in his reply—that that is something we should be considering? Helping those children to give their evidence clearly and honestly, with the support of their families, has to be the way forward.

[Ann Coffey]

I agree with the hon. Gentleman. We need to look at all the protective measures that we can employ to support vulnerable witnesses, particularly children, to give their best evidence in court. I entirely support that.

The witness need not attend the trial in person, thus avoiding the many pitfalls to pursuing justice that vulnerable witnesses currently face. It must be noted that pre-recorded evidence in the form of a film of a police interview can already be used in lieu of live examination-in-chief for vulnerable witnesses. There is no reason why that should not be extended to cross-examination, when we know that that is the most distressing part of the trial process.

This has all been recognised for decades. In 1989, the committee chaired by Judge Pigot QC recommended that provision be made for vulnerable witnesses to undergo pre-recorded cross-examination ahead of trial. It took 10 years for that to be written into law in the Youth Justice and Criminal Evidence Act 1999, and still, 17 years on from that moment, the relevant section remains unimplemented. That is despite the fact that victim support services, children’s charities and senior members of the judiciary have repeatedly emphasised the necessity and expedience of a roll-out.

The former Lord Chief Justice, Lord Judge, has been a tireless advocate for the implementation of section 28. Last Thursday he called, once again, in the other place for us to bring our court system up to date. He has said before that when section 28 is finally implemented, we will all be

“astounded about what all the fuss was about.”

I am already astounded that it is taking so long.

Of course, a vital step forward was made in April 2014, when pilot schemes were introduced in the Crown courts of Leeds, Liverpool and Kingston-upon-Thames. That was almost universally welcomed, but we are now well beyond the six months that those pilots were intended to last, and the evaluation report has not yet been made public. In “Our Commitment to Victims”, which was published in September 2014, the Government promised the completion of a national roll-out by March 2017, subject to the evaluation report. The clock has been ticking for well over 18 months, and it is unacceptable that vulnerable witnesses across the country should be made to endure further delay.

Since the formal evaluation period ended in October 2014, pre-recorded evidence has continued to be used in the pilot areas, and that is clearly a mark of the pilot’s success. One judge involved in the pilots in Kingston-upon-Thames wrote to me of the marked difference made by the installation of improved IT facilities for playing the evidence to juries. That occurred only after the pilot period ended. I hope that the evaluation report, when it is published, takes full account of these developments.

[Alison Thewliss (Glasgow Central) (SNP)]

Is the hon. Lady aware of the Vulnerable Witnesses (Scotland) Act 2004, which has been in place for a short time in Scotland and which has already taken in some of these provisions? Are there things that could be learned from that process and brought in to help vulnerable witnesses in England?

[Ann Coffey]

I would be very interested in any evidence from the Scottish courts of the success of pre-recorded cross-examination. It would be very helpful to know a little bit more about that.

Last year I visited the honorary recorder of Liverpool, who informed me that their experience of the section 28 pilot scheme has been characterised not only by vast improvements in the experiences of vulnerable and child witnesses, but by better case management, leading to shorter trials and fewer delays for everyone. I have since spoken to members of the judiciary at each of the pilot courts, and the response has been overwhelmingly positive. His Honour Judge David Aubrey QC made it clear that there has been a cultural shift in the manner of cross-examination, rendering unnecessarily repetitive and aggressive cross-examination a thing of the past. Likewise, her honour Judge Sally Cahill QC told me that implementation of section 28 in Leeds has been a “great success”, enabling

“witnesses to give their best evidence in a way that is as good for them as it can be in an adversarial system”.

They both confirmed that there has been no detrimental effect on the fairness of trials. The Minister will know that such unanimous judicial enthusiasm is unusual, but we have, after all, an exceptional opportunity before us. Her honour Judge Susan Tapping told me that in her view

“national rollout of section 28 could be one of the single most beneficial improvements in delivering justice to some of the most vulnerable in society”.

We should also remember that the benefits of section 28 are not limited only to trials concerning sexual offences or to cases where the witness is the victim of the alleged crime. Section 28 applies to vulnerable witnesses giving evidence in all manner of cases. For instance, one judge involved in the pilot scheme told me that she had recently presided over a very serious armed robbery case where the only evidence linking the defendant to the crime was that of a child who happened to be sitting on a wall nearby and saw the whole thing. The child’s evidence was taken under section 28, and the defendant pleaded guilty a few days after the recording was made.

We often speak of the need to listen to the voices of vulnerable children and vulnerable people in this House, but rarely are we confronted with such a clear opportunity to put that belief into action. Where children and vulnerable individuals can contribute to the administration of justice, they have a right to do so without causing harm to themselves. Facilitating that participation makes everyone safer.

It is clear that in all cases the benefits of section 28 are extensive. I have repeatedly been told that in section 28 pilot cases more defendants are entering early guilty pleas, thus shortening victims’ suffering and, of course, saving police resources and valuable court time. In Leeds, the latest figures suggest that 51% of defendants pleaded guilty prior to the section 28 cross-examination. In normal circumstances, many guilty defendants do not plead guilty at the arraignment stage or until the day of the trial, in the hope that, for example, a witness may not turn up. But where the section 28 procedure is used a guilty defendant will know first that they are faced with a witness giving evidence at a much earlier stage, and secondly, that if they do not plead guilty before the recording of that evidence they will lose much of the credit available to them for doing so. That leads to early guilty pleas, early closure for the victim and huge cost savings, as once the plea is entered no further evidence gathering or case preparation is required.

In those cases where the trial moves forward, proceedings are much more time efficient because it is no longer necessary to wait for the witness to attend court. Pre-recorded evidence means that persistent interruptions—for example, because a vulnerable witness requires breaks in order to cope or to concentrate—can be avoided.

The overall time taken to conduct cross-examination has also been reduced in areas where the pilot scheme is operating. The judiciary has issued a protocol governing section 28 cases, under which there must be a ground rules hearing before the recording of the cross-examination can take place. That means that there is much greater scope for judges to review questions to be put to the vulnerable witness, so irrelevant, inappropriate or repetitious questions can be filtered out well in advance. Although that time saving must be balanced with the time required for such pre-trial hearings, it is reasonable to expect that as advocates become more experienced in the new style of cross-examination there will be less need for judicial correction and hearings will be shorter. That expectation has been borne out in Leeds where, as experience has grown, ground rules hearings in section 28 cases have sometimes been sufficiently dealt with electronically, without the need for extra time in court.

On average, the evidence provided to me indicates that the impact of section 28 is such that trials that were previously taking four to six days are now taking two to four days. That is obviously great news for vulnerable witnesses. It also has a knock-on beneficial effect for all other cases in the lists, by introducing greater flexibility in case management. A roll-out of section 28 could provide a real opportunity to reduce the existing delays in the criminal justice system. In the context of widespread court closures, the Government cannot afford to waste that opportunity.

One reason for hesitation in implementing section 28 has been the apprehension from some parties that vulnerable witnesses would often need to be recalled to attend trial as new evidence emerged, neutering any beneficial effect that the pre-recording of cross-examination might otherwise have. As I am sure the Minister is aware, no evidence suggests that that has in fact been a problem. I have spoken to and corresponded with judges from each pilot area, and between them they could identify just a single case in which a vulnerable witness had to come back for a second cross-examination. Early disclosure of evidence can be ensured through proactive judicial case management, with judges having the power to delay recordings if not everything is prepared. It should be remembered that if re-examination is necessary, it can be dealt with by a pre-recording.

If there must be a retrial for any reason, recorded evidence means there is no danger that a prosecution will collapse simply because a witness is reluctant to repeat the experience of giving evidence. The process of a retrial is also speeded up as a result. For example, a retrial of a section 28 case in Liverpool occurred within a fortnight, as soon as a new jury panel was in place. We can expect similar results where cases involve a number of defendants, requiring the trial to be split. Rather than requiring the witness to attend each trial, their cross-examination can instead be re-played as many times as necessary. That removes the need for vulnerable witnesses to be exposed multiple times to the adversarial process.

As I have said, pre-recorded evidence continues to be taken in three pilot areas, which means that there is now a postcode lottery for vulnerable witnesses. It cannot be right that only a small minority have access to those protective measures. Tens of thousands of children are called to give evidence each year, and they should all have the benefit of section 28. Such a transformation in the national criminal justice system will take time, but, given the Government’s commitment to full implementation by March 2017, that decision can no longer be put off. As the Home Affairs Committee emphasised three years ago, section 28 represents the will of Parliament, and it is incumbent on the Ministry of Justice to implement it in a timely manner.

As the Minister will know, I have raised implementation of section 28 in this House, and through written questions, many times—today marks the 10th such occasion since 2013. I know that the Minister shares many of my concerns, and I thank him for the recent meeting that he held with me and Lord Judge on the matter. I look forward to hearing what steps he now intends to take.