Beyond measure

Lawyers are very familiar with the doctrine of unintended consequences, whereby new policies and initiatives bounce back and bite the hand which feeds them. The unintended consequences can arise from the best of motives; drug testing in prison was introduced to combat serious over consumption of cannabis inside: the fact that Class A drugs stay in the body for a shorter time and thus became the custodial drug of choice was in no one's mind when the policy was instituted.

The introduction of special measures to make the court process easier for children and adult complainants of rape and sexual abuse is another example of how good intentions can go awry.

Before the Youth Justice and Criminal Evidence Act 1999, young or distressed witnesses had to lump it in the hostile court environment. If they were so distressed they did not come up to proof, the defendant benefited and justice did not. If they refused to come to court because of their worry about giving evidence and the court procedure, that again was without remedy: unless they had been frightened into fits by the defendant or his acolytes personally, there was no alternative to oral live evidence.

The 1999 Act changed the landscape. Under section 16 and 17, witnesses under the age of 17 as of right, and other witnesses who can establish vulnerability on specific grounds, can apply for protective special measures.

Special measures can be for evidence to be given behind screens so that the defendant and witness cannot see each other; for evidence to be given by live link so that the witness is not in the same court at all but in a private room elsewhere in the building; for evidence to be given 'in private' '“ rarely used but available under section 25 of the 1999 Act if it is a sexual offence, and there are reasonable grounds for believing the witness has been intimidated by anyone other than the defendant; and for evidence in chief to be given by pre-recorded video interview with or without 'live link' for the cross-examination.

Video recorded interviews, originally only for children, now apply to victims of adult sexual crime. Pre-recorded video interviews are meant to give the best possible evidence, taken in safe circumstances where the witness first tells the tale, briefly, and is then asked open-ended questions to get all the details out. The process is open, visible, and aimed at keeping the witness as comfortable as possible.

Reduced quality

And therein lies the problem. A process which is both statement taking and evidence producing can and often does result in unexamined assertions which reduce the effect and quality of the evidence given. Police interviewers gib at asking challenging questions on tape '“ because they might get an answer which publicly reduces the strength of their case '“ which they might well ask if they were taking a statement to be reduced into writing.

Frequently, particularly with sexual crime, the interviewer and witness have developed an obvious rapport. The interviewer's visible sympathy can be subtly prejudicial to the defendant while stifling proper forensic rigour. This is particularly so with child witnesses. Social services and specialist police officers now always believe the child who claims he or she has been abused '“ this is infinitely preferable to the past, when children were never believed and were abandoned as prey to the nearest sexually incontinent parent or priest, but treating all disclosures of abuse as holy writ leads to evidential mayhem.

Some interviews are conducted as if asking any even slightly probing question might break the child's heart and spirit '“ which is not fair to the defendant or the child, who is then hit with questions in cross-examination which should have been asked months before.

Improved chances

Cross-examining a child is no one's idea of fun '“ but the task is made much easier when nonsensical assertions are left unremarked in the video interview. In one case, a child solemnly asserted that everyone in her entire family was present in the room on each one of the hundreds of occasions when daddy touched her naughty place. The interviewer's response of: 'Goodness me that is a lot of times!' may have given the child a warm glow about doing so well in interview '“ but no favours are done to a child who is put through a trial on evidence which does not and never could stand up.

Adult witnesses too may not be done many favours by special measures. Obviously it is preferable for a woman to give her evidence to a friendly and sympathetic officer in a specialist rape suite '“ much better than the bad old days when women gave written statements to openly sceptical and frequently hostile male police officers incapable of believing that no means no. But videos and video links are distancing to a degree which can reduce the reality of the woman's experience to something off the telly. A woman who refuses the protection of live link and bravely comes into the witness box to be cross-examined in public, even with screens, stands a far better chance of having her evidence believed. Harsh, perhaps, but true.

Juries are notably reluctant to convict anyone where the evidence is only one person's word against another '“ with sexual crime other prejudices may be floating around as well '“ and a 'virtual victim' adds to the difficulties for the prosecution. The measures should remain special and not become routine: special for those who for reasons of disability or youth cannot cope with the court environment and need the extra help, and special too for women who are so traumatised by their experience that they cannot give their evidence effectively without that protection.

While police officers routinely tell witnesses that special measures will definitely be made for them, often quite erroneously, perhaps prosecutors could wonder sometimes why the nasty old defence so rarely challenge those applications?