The future of questioning Children and Vulnerable Adult witnesses in the Courtroom.
Giving evidence in a criminal trial can be an overwhelming experience for any witness including those on trial. Particular concern has been focused on children or vulnerable adults, who are less well equipped to deal with the confrontation of the courtroom. There has been increased concern over the presence of children in the courtroom; in particular how they and other vulnerable witnesses (those with mental or physical impairment) are questioned and cross-examined. The New Year saw the introduction of legislation to allow the pre-recording of cross-examination of a child or vulnerable adult witness in certain cases. This will mean that cross-examination can take place before the trial begins and will then simply be played to the Jury during the trial. This will be a significant shift from current practice where cross-examination takes place live during the trial, before the Judge and Jury and in the hearing and presence of the person who’s been accused. The introduction of pre-recorded cross – examination will initially be limited to three Crown Courts (Kingston Upon Thames, Leeds and Liverpool) and this pilot scheme will last for only 6 months. Ask your solicitor if it applies to you. However, it would seem that the Judiciary welcome the new scheme and it will be used to establish how it will work in practice to ensure fairness to all parties, with a view to it being rolled out nationwide. It will be a significant departure from current practice and people’s perceptions of the trial process. However, the likelihood of this move being considered to undermine the right to a fair trial is slim. Safeguards will be built in to allow further questions to be asked during the trial in the event that circumstances change as ultimately fairness to the defendant is necessary. Such a move isn’t as radical as it might first seem. In fact the legislation to allow this pilot scheme has been on the legislative books for a significant period of time. The legislation was already set out in the Youth Justice and Criminal Evidence Act 1999 but simply not brought into force. Much of the 1999 Act was enforced and affects the way in which a child or vulnerable witnesses give evidence today. Most children or vulnerable witnesses already use measures when giving evidence to make the process less stressful. Children or complainants in sexual offences cases invariably have a recorded interview with police, which is played to the Jury and forms their evidence in court. Other measures that are regularly used are screens shielding the witness, giving evidence by video-link, intermediaries used to assist in understanding questions asked or for wigs and gowns to be removed. The Judge can also intervene in the way questions are asked. In some cases ground rules are agreed upon as to the language and content of the questions asked to ensure the witness understands. Given the support for the new scheme the pre recording of cross-examination of children or vulnerable adults will in all likelihood become accepted practice in the future criminal justice system. Update Interestingly, today ahead of the Labour founded Victims’ Taskforce meeting, Keir Starmer ( former DPP) suggested that in fact the future might well be that vulnerable witnesses are cross examined by the Judge and not the Advocate/solicitor representing the defendant. Such an idea has already sparked great debate and opposition. It would seem that we are in fact about to enter another chapter of debate concerning the future of court procedure.