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Giving evidence can be a stressful and difficult experience for many witnesses.  Attending court, and all the formalities that go with this, can make a witness feel intimidated.  This, in turn, has an impact on the quality of evidence provided. 

Special measures

In order to combat the negative effects of this stress and anxiety, where witnesses are vulnerable or intimidated, special measures can be employed to obtain the best evidence possible from that witness.

Special measures for vulnerable and intimidated witnesses were introduced by the Youth Justice and Criminal Evidence Act 1999 (YJCEA). 

Vulnerable witnesses are all child witnesses under 18; any witness whose quality of evidence is likely to be diminished because they are suffering from a mental health disorder; have a significant impairment of intelligence and social functioning; or have a physical disability or are suffering from a physical disorder.

Intimidated witnesses are those suffering from fear or distress in relation to testifying in the case.  Complainants in sexual offences automatically fall into this category.

Section 27 of the YJCEA 1999 makes special provisions of adult complainants in sexual offence trials at the Crown Court – on application by a party to the proceedings, a video-recorded statement as evidence in chief under section 27 is automatically admissible unless this would not be in the interests of justice or would not maximise the quality of the complainant's evidence.

What is Section 28?

Section 28 of the Youth Justice and Criminal Evidence Act goes one step further and allows vulnerable and intimidated witnesses to record their cross-examination or re-examination by video.  Where a special measures direction provides for a video recording of examination in chief to be admitted under section 27, it is possible under section 28 that a direction may provide for cross or re-examination to be recorded by video and admitted.                                             

It is important to note that section 28 is not yet in force.

As with other special measures provisions, it is designed to support complainants and witnesses and to help them give their best evidence.  It will involve having their evidence in chief and cross-examination played at the trial so that the witness themselves does not need to attend the trial.

Section 28 has a significant impact on the current criminal justice procedure and therefore has been piloted before being rolled out in full.

The initial pilot

The first pilot took place at three Crown Courts with a view to testing the system prior to any nationwide implementation.

The pilot took place in Leeds, Liverpool and Kington-Upon-Thames Crown Courts from December 2013.  It applied to child witnesses under the age of 16 and those eligible for assistance by reason of mental disorder, significant impairment of intelligence and social functioning or had a physical disability.  The pilot, therefore, operated with a limited definition of those who were eligible.  For example, adult complainants of sexual crimes were not included by default (unless they were eligible for assistance by reason of disability, mental disorder etc.).

The Process Evaluation report was published in September 2016.  Some positive results were detected – for example, it was felt by some involved in the trial that the quality of evidence was better and distress was reduced.  However, other issues did arise, including IT issues and concerns that the questioning protocols which were required to be followed limited the ability of the defence to react to answers given by witnesses.

Adult complainants in sexual offences trials

Clearly, significant thought, planning and trialling went into the first s.28 trial involving the limited demographic.

It was therefore somewhat surprising when it was announced in March by the Justice Secretary, Liz Truss, that from September of this year adult complainants in trials for sexual offences would be able to elect to have their cross-examination pre-recorded in advance of the trial in accordance with s.28.

However, this was then followed by a hasty clarification from the Lord Chief Justice, Lord Thomas. The scheme is not going to be instantly introduced nationwide but instead will be piloted in the same courts as the initial pilot.  Lord Thomas wrote to senior judges in a bid to clarify the situation and reassure everyone involved that the pilot would allow for any problems to be addressed before the system was deployed across the country.

It is undeniable that such major changes to the system need to be carefully considered and tested.  It is important that changes are made to ensure that complainants and witnesses are able to give their best evidence.  However, it is equally as important that the adversarial nature of the justice system and the right to a fair trial are protected.  Striking this balance is complex and ought not to be rushed.

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