The most vulnerable victims are to be protected from the trauma of appearing in court, Justice Secretary Chris Grayling announced last week.
For the first time young and vulnerable victims, who have survived the most horrific crimes, will be offered the chance to avoid what can often be a distressing and intimidating court experience by pre-recording both their evidence and any cross-examination for a later trial. Witnesses are currently able to pre-record their evidence in chief however any cross-examination still takes place during the currency of the trial.
This new approach will be tested in three areas — Leeds, Liverpool and Kingston-upon-Thames — with the intention of rolling it out more widely if it proves a success.
Justice Secretary Chris Grayling said:
“The particularly hostile treatment of victims and witnesses in court has nothing to do with fairness or justice.
“It is simply not right that young and vulnerable victims are forced to re-live the most traumatic experience they have ever had, often for days on end, when cross-examined in court.
“I am adamant we must put a stop to this, but without compromising everyone’s right to a fair trial.
“So for the first time we are going to spare these victims from the aggressive and intimidating court atmosphere by making sure they can give evidence and be cross-examined before the trial starts.”
There many provisions already in place to help victims and witnesses give evidence in court through special measures. Children automatically receive special measures — such as giving evidence from behind a screen or giving it via video link — and these are available to other victims and witnesses at a court’s discretion depending on the nature of the offence. Specialist Registered Intermediaries are also available to help certain witnesses in court — such as those with learning difficulties, language issues or hearing problems.
However, some may suggest the currently available measures do not go far enough. Although judges have the power to intervene to prevent overly aggressive cross-examination and character assassinations, there are growing instances of victims being left traumatised after court cases. There is no limit on the number of lawyers who can cross-examine a victim or witness, or on the amount of time they can be on the stand. Victims and witnesses can also be required to discuss graphic details of crimes such as sexual abuse.
From a defence perspective, there are many concerns. If a witness pre-records their cross-examination then issues that become live during the trial are unlikely to feature on the same day. For example, disclosure received from the CPS can be served at a very late stage up to and including the commencement of the trial but how can this be dealt with if a witness pre-records all of their evidence?