Special measures for witnesses
Following on from my earlier post on the Government’s plans to bring in new rights for victims I thought it might be worth saying something more about the final promise David Cameron made to victims, namely that there would be “more protection for witnesses”.
Since Dave wants to offer more protection for witnesses, I thought it would be interesting to think about what protections already exist and then compare those to what Mr Cameron is offering. However, we can’t do that since Dave hasn’t offered any firm proposals beyond the vague “more protection for witnesses” promise. So, we’ll just have to see what currently exists.
Current special measures
A special measure is something that the court can use or do to ensure that a witness provides the best evidence possible. They apply equally to prosecution and defence witness, although they do not apply at all to the defendant himself. A witness can avail him or herself of a special measure if they are under 18 at the time of the hearing, lack capacity or are in fear or distress of testifying. The fear or distress of testifying clause gives very wide scope for anybody who wants to claim special measures to get them… if you say you are scared of giving evidence how could anybody disprove that?
Currently there are a wide range of special measures:
Evidence in private (D and lawyers cannot be excluded);
Removal of wigs and gowns;
Pre-recorded evidence in chief;
Use of any device the court considers appropriate to aid communication.
Screening a witness from the defendant is one of the most commonly used special measures. A screen is literally erected or a curtain pulled around the witness box so that the defendant cannot see the witness. This usually has the side-effect that neither the prosecution nor defence lawyers can see the witness either, which can make questioning difficult.
Video-links are a bit like video-phones in sci-fi shows – they rarely work perfectly first time, you regularly get the wrong number (although I’ve never seen a lady fresh from the shower pop-up as in Demolition Man) but when they do work they are quite good. In a recent case I did, we had a prosecution witness who was too terrified of speaking in front of the jury to speak even behind a screen. Once we tried the video-link he was able to give evidence, so a success.
Evidence can be given in private, which really means the exclusion of anybody who is not a lawyer, defendant, judge or juror from the room.
Removal of wigs and gowns. This was done throughout the trial of the James Bulger killers, although that must have been under the judge’s powers to control his own court because the special measures a) didn’t exist back then; and b) do not apply to defendants.
Pre-recorded evidence in chief, cross-examination and re-examination has been possible for nearly a decade now and yet I have never seen (or heard) of it being done.
Intermediaries have been available for a long time but only recently seem to be gaining favour. An intermediary is somebody who helps a vulnerable witness give evidence, they are there to ensure that the witness understands the question being asked of him and that everybody understands the answer. I’ve come across a few witnesses who should have had an intermediary but I’ve never actually seen an intermediary in action.
The last special measure for the use of aids to assist communication is something intended for those with disabilities.
There is one other action the court can take to protect witnesses that applies in sexual offence cases and that is preventing the defence asking questions about the complainant’s previous sexual history. To be allowed to ask such questions the defence must seek permission of the court in advance.
In ye olden days we used to say that a defendant had the right to have his accuser face him and accuse him of a crime, the idea being that it was harder to lie about somebody to their face I suppose. Almost all of the special reasons change this position so that the accuser no longer has to face the person they are accusing. Personally, I happen to think that this does make life much easier for the dishonest complainant but I suspect I am in the minority on that one.
What more can be done to protect witnesses?
The main complaint I hear from witnesses is that they dislike tough questions from defence lawyers and, in particular, being called a liar. I recently cross-examined a man on the basis that he was lying; I know he didn’t like it as he gave me a lot of dirty looks and at one point complained to the judge about me calling him a liar.
Under our current system there isn’t very much that can be done about this because as lawyers we don’t call people liars for a laugh, we do it because our clients say to us “that didn’t happen, he is lying”. People regularly say that we should have an inquisitorial system like in France. I hear from fellow lawyers that the French system is horribly unjust. I also understand that the French do use the same system as us in any event. Although, the criminal procedures begins as an inquisitorial one, if the defendant insists that he is not guilty then it turns into an adversarial system like ours.
Even if we choose to scrap out current system tomorrow (which to be honest wouldn’t bother me that much so long as I don’t have to spend years learning the new system) I cannot fathom how we can deal with a situation where two people say the other is lying without putting to each of them “you are lying”.
This might sound harsh but let’s remember that 27% of defendants tried in the Crown Court are found not guilty after trial and every one of them plus many of their defence witnesses will have been called a liar by the prosecutor. Incidentally when I started working in criminal law, a few years before special measures appeared, I was always told that only 20% of Crown Court trials resulted in conviction, which if correct would suggest there has been a huge swing in favour of the prosecution.
What do you think? What else can be done to protect witnesses? Should anything else be done?