Section 28 aims to bring forward cross-examination to a time much closer to the date of the complaint. The average time between first appearance and Crown court trials where children need to give evidence is still eight months, longer than for other criminal cases, and children often wait for hours to give their evidence. Under s 28, the judge would direct how the examination takes place; under the statute the defendant must be able to see and hear the questioning and to communicate with his lawyers. Western Australia adopted the pre-recorded system in 2008; by 2012 there had only been two applications to call the child at the trial. During that time the Court of Appeal in this country has made it clear that it is more appropriate to point out important inconsistencies in the vulnerable witness’s account after he has given evidence, rather than to make comment during cross-examination.
Bar Chairman Maura McGowan QC said there is a “difficult balance” between ensuring a defendant receives a fair trial and protecting witnesses, particularly vulnerable ones and “in the overwhelming majority of cases, this balance is struck”. “[W]e support any attempts to reduce the stress of the experience for witnesses,” but “proper measures need to be put in place to ensure that all the information is available at the earliest possible instance to avoid recalling witnesses”.
The Government’s announcement came days after the Home Affairs Select Committee issued its report on child sexual exploitation and the response to localised grooming, prompted by the recent Rochdale and Oxford trials. Concluding that “the balance is skewed too strongly in favour of protecting the defendant’s rights as opposed to the very vulnerable witnesses in cases of child sexual exploitation” it called for the immediate implementation of s 28 by January 2014. The report was also concerned about “the failure of special measures to be implemented correctly”and recommended that if the issue recurs, each court should have a named individual with “responsibility for ensuring that special measures are being implemented appropriately”.
The Committee was also deeply concerned by some of the examples of language used in court that stereotype child sexual exploitation victims. (One counsel in the Oxford case reportedly asked: “Were these girls victims from the start or were they naughty girls doing grown up things they bitterly regret?”)
It calls for further training for the judiciary and queried the necessity for every defendant’s counsel to cross examine the complainants. “We invite the Bar Standards Board and Solicitors Regulation Authority to work with the Judicial College and the Ministry of Justice to develop and provide similar training for barristers and solicitor advocates.” For each region a team of specialist child sexual exploitation judges, prosecutors, police witness support and ushers should be identified and trained and a specialist court room established.