Safeguards and Vulnerable Witnesses Protection Analysis

This essay is going to argue that the safeguards that are in place to ensure that evidence of vulnerable witnesses defined under section 16 of the Youth Justice and Criminal Evidence Act 1999 (YJCEA) can be heard represent an unacceptable erosion of the adversarial tradition making it impossible to achieve a fair trial. Special Measure Directions (SMD’s) can be viewed as unfair because in a lot of instances, they take away the need for orality within the public proceedings, which is contrary to adversarial systems which champions orality. The definition of adversarial that will be adopted within this essay places emphasis on the fact that the adversarial model views the presentation of evidence as the responsibility of the parties, with the judge playing the role of a ‘neutral’ umpire (Andrew Choo). The aim will be achieved by firstly, highlighting what the essay will focus on. Secondly, the essay will critically examine the arguments that exist to purport that the safeguards do not represent an erosion of the adversarial system or make it impossible to achieve a fair trial and look to discount them through vivid analysis of why it does indeed make it impossible to have a fair trial. Lastly, it will make concluding remarks.

The key safeguards under the YJCEA which this essay will pay special attention to include the use of live links, video recorded evidence and the prominent case of R v Barker which introduced new methods of cross examination. Measures such as removal of wigs and gowns, evidence given in private, providing aids of communication, or examination of witnesses through intermediary do not necessarily raise questions of the defendant’s right to a fair trial. Section 23 YJCEA safeguard will also not be given much attention due to the fact that even though the witness may be screened from the abused, the legal representatives can still see them during their testimony or being sworn in court.

One of the fundamental arguments for the special measures is the fact that the provision of special measures gives vulnerable individuals a fair opportunity to put up evidence which is more reliable than it normally would without the provision of special measures, and that doesn’t necessarily make the trial unfair for the accused, but it actually helps further facilitate a more competent fair trial where proper evidence is presented. Farclough describes it as an equal opportunity through justified differential treatment. However, in search of this equal opportunity arises a great potential for unfairness on the part of the accused. Article 6(3)d of the European Convention of Human Rights emphasizes the right of the defendant to examine witnesses against him in a trial in the event of evidence produced.

But academics such as Laura Hoyano emphasize an indication that English courts construe the ‘minimum right’ expressly guaranteed by article 6(3)(d) narrowly, and indeed its content, being relegated to a periphery which is subject to what Lord Steyn described in R v. A as the 'familiar triangulation of interests of the accused, the victim and society. For the most part, the SMDs will fall into this periphery. This is to say that upon the courts decision to grant SMD’s they take into account those 3 peripheries. Herein lies the problem because in deciding they take into account the defendant’s interest, the victims interest and the society’s interest. That means that other interests have the potential to outweigh the defendant’s interest because now the interest of society has been brought into play along with the victims interest. It automatically puts the defendant at a disadvantage in that more than one opposing factor is being considered to determine the admittance of an SMD. So how can we truly say that an accused can experience a fair trial under these circumstances? Moreover, it makes it harder for the judge under an adversarial system to play the role of a neutral ‘umpire’ with so many factors to take into consideration.

In the case of R v Redbridge Youth Court, the court held that cross examination via a video link did not infringe article 6 of the convention. Sceptics of live links will deem it an obstruction to a fair trial and probably disagree with this decision. However, it must be admitted that the accused in this case and (other cases) was given a sufficient and appropriate opportunity to challenge the evidence against him. So perhaps, these special measures do not make it impossible to achieve a fair trial within the adversarial trial system. However, it must be mentioned that within the case of Redbridge, there was an absence of material relating to intimidation or traumatisation of the witness. This is not to say that this is the case in every situation. However, it raises the question of the possibility of victims lying and creating a narrative of being unable to attend at trial, and courts may give effect to an SMD without any evidence of intimidation or trauma as was the case in Redbridge. In this case, it was stated that the reason why an absence of material was acceptable was because of the extreme youth of the victim who was 13 at the time. However, it is reasonable to say that a 13 year old is more than capable of lying. So, what if that witness may have a purpose of their own to serve? Surely a defendant cannot have a fair trial in those circumstances.

Moreover, the use of SMD’s like video evidence and live links can put the defendant at a serious disadvantage as it makes it harder to effectively cross examine the witness. Mehreen Sulehria writing for the Legal Education and Access Portal of Pakistan highlights that pre-recorded interviews can be edited, and the use of live links decreases the opportunity to evaluate the witness’s demeanour and reduces the chances of casting doubt on the accuracy of the witness’s statement. For example, in the case of Van Mechelen v. Netherlands, the European Court criticised an arrangement whereby the anonymity of police officers was preserved by questioning being conducted by an investigating judge, with the accused and their counsel in a separate room with communication only via a sound link, because this prevented the defence from observing the witnesses' demeanour under direct questioning, and so from testing their reliability. With all those possible factors, it is fair to say that the existence of these SMD’s make it significantly harder for the accused to enjoy a fair trial.

The above paragraph discussed the difficulties that could arise when cross examining a witness via a video link or examining video evidence. However, much criticism has been cast upon cross examination as a means of examining evidence, and the case of R v Barker which largely centres on the issue of cross examination is an excellent illustration of why special measures with regard to cross-examination were implemented in the first place. The case was one of the anal rape of a 3 year old. During cross examination, the defendant’s counsel attempted to test the child’s understanding of lying. He asked the child: 'If I said it was Sunday today, would that be a fib?' to which the child nodded. However, when he asked what day of the week it was, the child suddenly announced, 'Your name is Bernard.' The Court’s response was that the problem lay not in the child’s understanding but in the complexity and pace of questioning. This case prompted comments from academics such as Emily Henderson who stated that ‘we almost all now accept that testing a vulnerable witness's evidence using undiluted conventional cross-examination techniques does not produce reliable evidence’. This case led to new safeguards when cross examining such as the fact that counsel must not use suggestive questioning, and questions posed must be comprehensible or developmentally appropriate for the witness, and perhaps due to the explained reasons above, these safeguards are indeed justified and ensure an overall fairer process.

However, these new safeguards in place changing the manner in which cross examination is done can similarly have an adverse effect on the accused’s ability to have a fair trial. Emily Henderson who is also a practicing barrister admitted that cross-examination is at the heart of their conception of what makes a fair trial. She further explains that in the midst of the safeguards introduced in Barker, what is actually going on is a subtle refocusing of the aim of cross-examination and that although it is rare for cross-examiners to admit to deliberately confusing witnesses, cross-examiners have never treated communication with witnesses as a key objective, and that is what these new safeguards are focusing on… Communication. As experienced Scottish judge Marcus Stone puts it 'for an advocate, his witnesses are the principal medium by which he tells his story, and this includes witnesses under cross-examination. So, their main objective is not to communicate with the witness per se, but it is to paint a picture and story for the jury. So, with that said, as an accused individual in a trial relies on an advocate to put forth a firm case and vindicate them, by introducing safeguards that regulate and relax how cross examination is done, we are taking away the vital tools from an advocate which he relies on to try and diminish the credibility of the witness’s evidence for HIS clients sake. The safeguards thus make it harder for advocates to do their job and for an accused who relies on, the one person to vindicate him, if you make it harder for them to do their job, how can the accused expect a fair trial? Surely the chances of that happening are diminished.

Overall this brief essay has demonstrated the fact that vulnerable witnesses who are at risk of psychological harm or who are too young to understand and comprehend the procedures of a courtroom, may not be able to give reliable evidence and hence in that regard the SMD’s are justified as they provide an overall fairer process.

However, it has stressed that SMD’s it makes it much harder to attain a fair trial. The adversarial system champions orality in order to have a fair and open proceeding and SMD’s hinder that to a large extent. Moreover, measures such as video evidence and live links make it harder for counsel and the defendant to examine the demeanour of the witness and subsequently reduces the chances of casting doubt on the accuracy of the witness’s statement. Moreover, the relaxation of cross-examination makes it harder for advocates to do their jobs because cross-examination is a fundamental part of a trial and a relaxed version means that these advocates may not be as effective in painting the narrative to the jury which significantly reduces the defendant’s chances of attaining a fair trial. All these cumulative factors thus put the defendant at a significant disadvantage and make a trial much harder. And for those reasons SMD’s make his chances of attaining a fair trial much harder.