Former DPP calls for judges to cross-examine

Judicial cross-examination of vulnerable victims and a blend of the adversarial and inquisitorial systems are amongst proposals being considered by a victims’ law taskforce. Sir Keir Starmer QC, the former Director of Public Prosecutions who is chairing the taskforce, said he supported the pilots testing the pre-recording of evidence but argued for changes “further and faster” and in “formerly ‘no-go’ areas”.

Speaking on BBC Radio 4’s Today programme on 7 April, Starmer elaborated on ideas he put forward in an article for the Guardian the previous day. He said: “I think there is a real consensus now that things have to change. The last two or three years have seen a number of cases where there has been unacceptable treatment of vulnerable witnesses and victims in court by barristers... judges are becoming much more uncomfortable with aggressive cross-examining.”

Whilst acknowledging that “there will be examples of judges who may have taken an approach that others wouldn’t approve of”, he said that “by and large what a judge is able to do is to identify the issues and then pursue what actually happened in a different way to the advocate”. He added: “I do not think it is impossible for a judge to probe and test an account of the vulnerable victim in a way that gets to the truth without undermining the rights of the defence.”

Speaking against the proposal on the Today programme, Sally O’Neill QC, a former chair of the Criminal Bar Association, questioned whether “judges would be so much better at cross-examining young witnesses than trained advocates”. She said it had been known “for some time” that the adversarial method of cross-examining young witnesses was not appropriate and was “almost non-existent”. “It’s a question of training,” she added.

Responding to Starmer’s proposals on BBC Radio 4’s World at One, Attorney General Dominic Grieve QC MP said that he welcomed the debate, but it raised profound issues about the right to a fair trial.  Penny Cooper, Chair of the Advocate’s Gateway, said: “[Our] guidance on questioning vulnerable witnesses is there for judges as well as advocates. However, in jury trials it is hard to see how this might work without compromising fairness to the defendant, many of whom are also vulnerable. To use the cricketing analogy, can judges be impartial umpires if they are also responsible for bowling at certain times?”

The taskforce, set up by the Labour Party, which also includes Labour Peer, Doreen Lawrence and Peter Neyroud, former Chief Constable of Thames Valley Police and a criminologist.