Vulnerable victims – a trial before the trial

The New Lord Chancellor Liz Truss marked her first major policy announcement with efforts to make Crown Court trials a more suitable environment for vulnerable witnesses. It is intended that from January 2017 all vulnerable witnesses will be able to give their entire evidence (both in-chief, and cross-examination) before the actual trial in pre-recorded footage, sparing them any attendance at the trial itself.

First, we must define the terms of this proposal, then review the evidence presented in justification, as well as the potential pitfalls.

Limitations and Drawbacks of the Pilot Scheme

This September 2016 Government paper refers to the 2013-2014 Pilot Scheme conducted in the Crown Courts of Leeds, Liverpool and Kingston-upon-Thames. This tested out section 28 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA), which is the last of the ‘special measures’ intended to make trials more accommodating for ‘vulnerable victims’ - the term ‘alleged victim’ or ‘complainant’ having been effectively removed from government parlance. That Pilot report is relied upon as conclusive evidence of the merits of section 28, and thus becomes essential reading.

It should first be stressed the Pilot for section 28 was far more limited than the current potential ambit of ‘special measures’ under section 27 YJCEA. In addition to the ‘recording of evidence-in-chief’ section 27 requirements, those complainants qualifying for section 28 had to also be:

-aged 16 or under, or

-suffering from either a mental disorder, significant impairment of intelligence or social functioning, or physical disability or physical disorder

Therefore, unlike section 27, the Pilot scheme did not cover all complainants in sexual offences, it did not cover all those who might be regarded as intimidated, and it did not cover all complainants suffering from fear or distress in relation to testifying. The ambit of special measures for ‘evidence-in-chief’ has been expanded. If this Pilot scheme is now pleaded in support of pre-recording cross-examination, its weight will only be applied to the vulnerable, and not widened to the distressed, scared, intimidated, or anyone making a sexual allegation.

However, the feedback for the 2013-2014 Pilot Scheme was broadly positive. Crucially, the basic problem caused by delay between allegation and trial was mitigated, with the vulnerable complainants’ ability to recall events better pre-trial because their wait was shortened. That is quite understandable. However, an opponent might say that particular mischief could be cured by speeding up the entire trial timetable for all vulnerable complainants, rather than simply the giving of evidence.

One must also note that the section 28 Pilot also saw the first application of Grounds Rules discussions, which now have broad approval. So when we are assessing the feedback we must be careful not to conflate the benefits of Grounds Rules with the benefit of pre-recording cross-examination i.e. “The majority of practitioners who attended cross-examination agreed that the questions posed to witnesses were more focussed and relevant… they thought this was due to increased scrutiny of Ground Rules hearings”

The practitioner feedback also indicates that defence advocates were more accommodating when cross-examining witnesses in the absence of the jury. On the face of it, this reads like an admission of ‘grand-standing’ - until one considers who actually said this. 40 practitioners provided feedback on the Pilot. Of these, 11 were police staff, 11 were court staff, 8 were judges, 3 were intermediaries, 2 were from witness services and 2 were from the CPS. Only 3 were defence advocates, 1 of whom also acted as a Prosecutor within the Pilot. There was no feedback from any of the 198 defendants themselves, from any defence litigators, or from any defence supporters watching the hearing. Such a limited input from the defendant’s side should surely raise the eyebrow of any objective analyst. Even if one accepts the benefits in principle of pre-trial recording of cross-examination, there are very real practical hurdles to making it work fairly.

Lost credit at section 28 hearing

The principle of the early guilty plea scheme is that if a defendant admits the offence early, he will be entitled to a full sentence discount, typically one third. If he does not, there is then a sliding scale approaching trial. Pleading guilty on the day of trial will attract discount of only one tenth.

For credit purposes, the section 28 cross-examination hearing is treated as Day 1 of trial. This means that the defendant (no matter how vulnerable, mentally unwell or socially dysfunctional he or she might be) will lose credit far more rapidly by virtue of this system. That will make very early engagement with the defence team, and trial counsel, all the more essential. The section 28 hearing could feasibly happen within weeks of the charge.

Need for earlier disclosure, including secondary disclosure

As cross-examination of the accuser is often the pinnacle of defence preparation, it follows that the entire pre-trial process of disclosure must be complete before the section 28 hearing. The effect is to hugely truncate the normal process with an entirely new set of deadlines. Where the defendant is in custody, this will be particularly burdensome on the defence. Is the service of initial disclosure, the Defence Statement, then secondary disclosure, and full instructions on all of this really going to be taken before the section 28 hearing? What chance of a conference with trial counsel? All parties will hope so, but experience would suggest that, in reality, it will lead to section 28 hearings being moved back multiple times, a point of real concern even within the 2013 -2014 Pilot scheme. Just as worrying, it could lead to defence cross-examination by a defence team who are simply not trial-ready. It is one thing taking instructions from a client. It is quite another to consider what the defence case theory might be, and what line to take with his or her accuser. Very often the key question which hangs in the air is “Why would such a vulnerable person ever tell such wicked lies about the defendant?”. In cases where the credibility of each party is key, it should be regarded as highly dangerous to rush into cross-examination without full disclosure of every avenue which might provide valid defence ammunition. Make no mistake: if this section 28 process is to work fairly it means trial preparation an ultra-efficient speed by all sides.

The trial judge will, presumably, also retain a discretion to order the recall of the complainant during the trial, for example, if new and relevant material emerged which prompts valid defence questions. It follows that the vulnerable complainant would have to remain, in effect, on standby for the actual trial date. Releasing the complainant entirely would surely risk the trial being aborted.

Availability of pre-allocated trial judge, complainant, both trial counsel, and defendant

From the earliest stage, the trial judge and trial advocates for both sides will have to be allocated because they, as well as complainant and defendant, must all be present at the section 28 hearing. Again, diary difficulties will surely arise in a real proportion of cases. To stand any chance of getting a smooth listing, assessing the potential length of the section 28 hearing is also key. But how can that be done accurately before initial disclosure is completed, and/or before the Defence Statement is served, and/or before any secondary disclosure is considered, and/or before instructions on all of this material are taken, also in dealing with a vulnerable witness who may even need an interpreter and/or an intermediary? Such time estimations are fraught with variable factors, and getting them wrong can lead to an aborted hearing, or perhaps disrupting another trial, or even another section 28 hearing.

Whatever the merits in principle of pre-recording the evidence of vulnerable complainants, for section 28 of the YJCEA to work smoothly and fairly, it will take a Herculean effort by all parties to work at least twice as fast as normal, as well as a large dollop of mercy from all the usual listing gremlins.