Pre-recorded cross-examination in the fast lane

10 years ago, Plotnikoff and Woolfson described achieving best evidence for vulnerable witnesses as a “slow road” beset by cultural resistance within the legal profession. While great strides have since been made to change attitudes, substantial delays in the criminal court system are now compounding the problem. The Chairman of the Bar Council recently warned such delays are preventing powers under s 28 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) to pre-record witness testimony from being exercised.

ABE

The idea vulnerable witnesses should have their evidence pre-recorded without having to go through the ordeal of attending trial can be traced back to the Pigot report in 1989. Pigot recommended children should no longer have to appear in the Crown Court – but only half the scheme was enacted in 1991, permitting the live evidence-in-chief of a child witness to be replaced by what is now known as the police “ABE interview”.

The YJCEA eventually added pre-trial cross-examination to the list of special measures provided for vulnerable and intimidated witnesses. But it took a further 14 years before a pilot programme was commenced at three Crown Court Centres for children and adult witnesses with a physical or mental disability. An evaluation in 2016 found there were benefits for both witnesses and practitioners – and a full national roll out across all 83 Crown Court Centres for these witnesses was eventually achieved in November 2020. Meanwhile, a pilot for adult complainants in sexual and trafficking offences to use pre-recorded cross-examination is currently underway in several Crown Courts.

The reality

The advantages of pre-recorded cross-examination are now widely accepted, relieving stress for witnesses and testing accounts at a stage when events are fresh in their minds. But practical problems remain. One of the arguments against implementation is the difficulty of ensuring full disclosure to the defence within the time listed for the pre-recorded cross-examination to take place. This was not identified as a problem reported in the original s 28 pilot. In cases involving young children there may be little unused material to disclose. But in cases involving older witnesses, there may be volumes of unused material that has to be processed – and third-party disclosure issues that have to be resolved before pre-recorded cross-examination can take place.

The new pilots are also taking place at a time when there is an unprecedented backlog of cases awaiting trial in the Crown Court A reported shortage of barristers, fuelled by legal aid cuts, is adding to delays in preparing cases for trial. Pre-recorded cross-examination under s 28 has to be listed in busy court schedules. This raises the question whether there might be more effective, efficient ways of capturing vulnerable witnesses’ evidence at an earlier stage in proceedings.

Our research

In a multi-jurisdictional Nuffield Foundation-funded research collaboration between the two Nottingham Universities, the authors examine best practice elsewhere. Some jurisdictions are looking at the Scandinavian Barnahus model – where the cross-examination of child witnesses and, increasingly, that of complainants in cases of sexual violence, is substituted by a recorded interview, conducted during the pre-trial investigation, in a relaxed environment and the defence is also engaged. Scotland has invested in something of a halfway house, whereby the entirety of a witness’s evidence may be taken on commission by a judge, outside the confines of the courtroom, at an early stage of the process.

Questions remain as to whether pre-recording witnesses’ evidence before trial has the effect of distancing the jury from their evidence. Jury research on this remains inconclusive. More radical reform may lie on the horizon in Scotland, following the publication of the Dorrian Review in March 2021, which called for the creation of a specialist sexual offences court wherein trauma-informed practices would be embedded. The group was split as to whether such a court should sit with a jury. Meanwhile, a pilot is taking place in Northern Ireland to fast-track serious sexual offence cases involving child witnesses under 13 years old.

The future

Across the common law world, there seems at last to be momentum for change to enable the evidence of vulnerable witnesses to be captured at a much earlier stage. Is it too much to hope that this road to best evidence is at last becoming a little quicker?

Prof Jonathan Doak is Professor of Criminal Justice and Associate Dean for Research at Nottingham Law School, Nottingham Trent University, Prof John Jackson is Professor of Comparative Criminal Law and Procedure at Nottingham Law School, and Dr Debbie Cooper, academic at the University of Nottingham: ntu.ac.uk/study-and-courses/academic-schools/nottingham-law-school; nottingham.ac.uk