Jewel in the crown?

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Emily Henderson looks at the cross-examining of vulnerable witnesses and asks whether this supposed jewel in the adversarial crown is being successfully reformed by the courts.

Conventionally, cross-examination is regarded as the jewel in the adversarial crown. However, 30 years of empirical research has shown it to be highly unreliable as a means of investigating the evidence of vulnerable people in particular.


Academic criticism is one thing: practitioner acceptance and engagement is quite another. All the legislative reform in the world will make no difference as long as practitioners continue to set their faces against change. As the Lord Chief Justice wrote in 2009 when a major report revealed the gap between child witness policy and its implementation in the courts: “[T]he real need [is] – not yet more initiatives and reforms, but the cultural change that is necessary to make the new framework a reality.” (“Introduction”, Plotnikoff & Woolfson, Measuring Up?, NSPCC-Nuffield, 2009, i-ii) Into this gap stepped the Court of Appeal with a string of decisions clearly aimed at shifting practitioners’ perceptions of what is acceptable in cross-examining vulnerable people. Beginning with 2010’s Barker, the Court set out a series of restrictions on techniques research shows are likely to produce unreliable evidence (R v Barker [2010] EWCA Crim 4; R v Edwards [2011] EWCA Crim 3028; R v W and M [2010] EWCA Crim 1926; R v Wills [2011] EWCA Crim 1938). Cross-examiners must communicate comprehensibly, must not use heavily suggestive techniques and must eschew comment. Moreover, the duty to put the case is restricted where the questions are outside the witness’s ability to answer or are likely to produce merely compliant responses. Issues should instead be explored with other witnesses or a list of issues which could not be explored should be put to the jury separately.

In 2013 I interviewed 25 sex-ticketed judges, 16 experienced criminal advocates and 10 registered intermediaries to examine whether there is any evidence that, under the Court of Appeal’s leadership, “cultural change” is occurring. The answer is, in essence, “yes”.

Attitudes to Barker                               

The respondents overwhelmingly welcomed Barker et al. They saw the changes as significant and necessary. Many were proud of what is being achieved and excited by the new direction. Moreover, the overwhelming consensus was that there are no fair trial concerns arising from the reforms, including the restrictions on putting the case, provided they are applied flexibly. Many, in fact, regarded the changes as simply bringing cross-examination practice back into line with its fundamental principles. It is, as one said, “cross-examination done properly.”

Communicative Competence

The interviews show:

  • A significant increase in awareness of the barriers to clear communication with vulnerable people, including a far more sophisticated understanding of the language issues than shown in previous studies.
  • A significant increase in the level of concern regarding those issues and a palpable sense of determination to improve the system.
  • Most advocates encountered in the courts are said to be keen to improve their practice and amenable to direction from the judge.

However, there are still barriers to good practice and the implementation of the Barker standards:

  • Judges and advocates alike report the general standard of cross-examination of vulnerable people still requires significant improvement. While most advocates now do not use an overtly aggressive tone only a small minority have the requisite skills to amend their language.
  • They report that at the bottom end, most courts still contain a small minority of very poor and often aggressive advocates and judges often find these people unstoppable.
  • They also report that some silks and seniors can be worse than more junior advocates because they do not attend training courses. Inexperienced solicitor-advocates and in-house counsel are also sometimes instructed in cases beyond their ability.
  • Some judges are also reported still to lack awareness of the issues.
  • Moreover, a minority of the respondents in this study continued to underestimate the difficulty of communicating with vulnerable people, or did not accept important practice guidelines, such as the need to avoid tag questions or comment.
  • Many judges and advocates, although understanding the language issues, still struggle to rephrase conventional questions and need expert assistance in developing practical alternative questioning strategies.

The respondents recommended strongly that the cross-examination of vulnerable people be recognised as a specialist area and that there be mandatory training and accreditation of all counsel to improve standards. They also called for assistance for judges and advocates in developing new methods of questioning.

Judicial Intervention

In Barker et al, the Court of Appeal has given clear guidance that judges must take a managerial stance and enforce good practice standards at trial. Generally, judges are prepared to set ground rules and to be more interventionist. Advocates are also generally in favour of this approach.

However:

There are strong indications that the rate of intervention may still remain too low:

  •  First, while judges are theoretically prepared to intervene, they say there is not much need in practice. Given the extent of poor language use found in studies of cross-examination this is probably over-optimistic.
  • Second, most judges dislike intervening. Some judges are concerned about the impact of intervention on the jury and defendant’s perceptions of judicial bias and the prospect of appeal.
  • There is a strong perception that the acceptable rate of intervention is just “one or two” mild comments in front of the jury followed by a discrete discussion in chambers.    
  • This restrictive practice seems a major factor in the problems judges reported (described above) in controlling serially recalcitrant or incompetent counsel.
  • Judges and advocates alike suggested (a) mandatory training and accreditation for defence counsel and (b) greater use of Ground Rules Hearings as ways to improve practice without incurring the problems associated with intervention.

 

Ground Rules Hearings

Ground Rules Hearings are required where an intermediary is appointed and recommended in any trial where a vulnerable witness is involved. Recommended practice is that the hearing be convened in advance of trial, any intermediary be present at the hearing and the judge issue written directions.

Many judges and advocates consider GRH invaluable and are particularly passionate about the ability to use directions to forestall problems at trial and thus reduce the need to intervene.

However:

  • Ground Rules Hearings are still not being held in every trial involving a vulnerable witness and not even in every case involving an intermediary.
  • When held, it is common for GRH only to be convened at trial at the last minute, which impedes people’s ability to take account of any recommendations.
  • GRH are also often perfunctory and some judges fail to issue actual directions, a loophole some counsel will exploit at trial.
  • Some judges and advocates consider that they are not necessary if counsel are known to be experienced or senior.
  • Some are reluctant to set time limits on witness examinations or to seek the assistance of an intermediary to help plan questioning, especially where the advocate is a silk.

 

Registered Intermediaries

As has been found in past reviews, there was strong praise for the Registered Intermediary scheme and few reported problems. It was widely considered that intermediaries have made a considerable contribution to enabling access to justice for vulnerable witnesses and defendants and have improved the quality of the evidence received by the court considerably. The most significant reported problem was the failure to appoint intermediaries often enough for both witnesses and, importantly, defendants. The respondents identified a need to improve police and lawyers’ ability to identify vulnerability so as to increase referrals.

Conclusion

It is not yet possible to give the English and Welsh courts a clean bill of health in respect of their treatment of vulnerable people’s evidence, as I expect most of those I interviewed would agree.

While the judges are moving forward rapidly, there is an urgent need for mandatory training for all advocates involved in examining vulnerable people.

Moreover, there is a pressing need for increased engagement with academic experts in forensic interviewing to assist in developing alternative questioning strategies. Advocates should not consider they can go it alone in this complex and demanding field.

Overall, however, it is hard, as an outsider to the English system, to avoid being immensely impressed by what has been achieved so far.

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Dr Emily Henderson

Emily usually practises as a barrister in the criminal and civil courts in New Zealand but is currently on sabbatical completing her work as the New Zealand Law Foundation International Research Fellow, which fellowship funded the research in this article.