Legal Update: Measures to protect child witnesses

Justice minister Damian Green announced last month that there will be a review into aggressive cross-examination of vulnerable witnesses in England and Wales. The planned review will take place over the summer, in order to identify measures that can be used to prevent hostile practices in court. In addition, plans were announced to pilot a scheme allowing vulnerable witnesses to record cross-examination evidence before a trial commences, to avoid having to be cross-examined in the court room.

According to Green, the impetus for the review is the identification of "the growing number of cases where victims report being left traumatised by aggressive cross-examination from multiple defence barristers". He cited an example in a recent child prostitution case in which one 13-year-old victim was questioned for 12 days by seven defence barristers. Each took turns accusing her of lying, asked whether she repented her sins, and left her in tears.

Impact of cross-examination techniques

One of the key features of the adversarial criminal trial is the giving of oral evidence by witnesses and the ability for the defence to test this evidence through cross-examination. While limits can already be imposed on cross-examination of child witnesses, such as the use of intermediaries, limits on the kinds of questions that can be asked and restrictions on aggressive questioning, there is currently no limit on the length of time that children may be cross-examined for, nor the number of people who may cross-examine them. This is particularly problematic for cases involving multiple defendants, in which each defendant will likely have a separate barrister who will each cross-examine the child witness. Cross-examination of child witnesses can have a very negative impact on a child's wellbeing. For children who have experienced sexual violence or abuse, the unequal power relationship between the defence counsels can trigger similar feelings of powerlessness that were experienced by the child as a result of the original abuse.

Aggressive, lengthy cross-examination is also unlikely to result in the court obtaining accurate evidence. Research has demonstrated that questions posed to children in cross-examination risk confusing and intimidating the child. This, along with a child's tendency to give deference to authority figures, combines to create a risk of children giving inaccurate evidence during cross-examination.

The proposals

The review will investigate how distress caused to victims during cross-examination can be minimised without compromising the right of the accused to a fair trial. It will consider whether victims should have the same questions put to them by multiple defence barristers, and whether new guidance should be issued to judges. One measure that will be piloted, in tandem with the review, is the use of pre-recorded cross-examination. This will allow for a child or other vulnerable witnesses to attend court prior to the trial and be cross-examined by video link.

This measure was first introduced in 1999 under Section 28 of the Youth Justice and Criminal Evidence Act but has never come into force. It will go some way towards reducing the trauma experienced by a child giving evidence in an open court, which can be a very intimidating environment. However, additional measures are needed to ensure that children are not subjected to lengthy, repetitive and hostile cross-examination. The director of public prosecutions has proposed, in recent draft guidance, a "ground rules hearing" about cross-examination, which would take place in advance of a trial. It would include the defence agreeing who will be the lead counsel to put questions to the child witness in cases with multiple defendants, and an agreement of the length of time given to cross-examination.