Since 2000, Special Measures have become routine in the crown court – if, regrettably, not in the magistrates’ courts – for vulnerable prosecution witnesses, especially the live link for a witness’s cross-examination (and examination in chief if there is no pre-recorded Achieving Best Evidence interview adduced in evidence). Apart from the frequent technical difficulties encountered by advocates, there are several lingering issues.

Section 28: national roll-out hits the buffers

Pre-trial cross-examination was finally, and successfully, piloted in 2014, a mere 15 years after it was enacted in the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999), following pressure from the House of Commons Home Affairs Committee in 2013. On 6 July 2016, in response to the tenth parliamentary question in three years from Ann Coffey MP, Justice Minister Mike Penning announced its national ‘roll-out’, starting in December 2016. The Ministry of Justice (MoJ) envisaged a sequence of Statutory Instruments for each Crown court when the police, Crown Prosecution Service, advocates and the court were appropriately trained, and the technology was ready. The target date for full implementation was March 2017. As of August 2018, only the original pilot crown courts in Liverpool, Leeds and Kingston-upon-Thames have been accorded the necessary statutory trigger. What Ms Coffey criticised as the postcode lottery for witnesses under 18 and those with deteriorating mental conditions continues.

Why? A vague answer was provided in May 2018 to the Justice Committee by the then Minister Phillip Lee: the technology supplier had been unable to provide a viable solution to quality concerns regarding recording and playback of the cross-examination; another problem apparently has been secure cloud storage (the pilot courts used discs for s 28 recordings). Consequently the board overseeing the project halted it. There is no sign yet of the s 28 train leaving the MoJ station. The Victims’ Strategy published on 10 September remains aspirational regarding s 28, with no timeline for implementation.

Oddly, governmental pusillanimity about implementing 
s 28 for all witnesses under 18 or with degenerative disorders, who obviously need it, was overtaken by excessive ambition on the part of the then Secretary of State for Justice, Liz Truss. She announced in The Times on 19 March 2017 that s 28 would be extended and fast-tracked nationwide for sexual assault and trafficking complainants, as of September 2017. Unfortunately she had neglected to check this with Lord Thomas CJ, who had agreed only to a pilot in the three original crown courts. The Chief Justice publicly castigated the MoJ’s ‘complete failure to understand the impracticalities of any of this’. Endemic problems with disclosure, longer cross-examination, and s 41 applications regarding previous sexual behaviour, are obvious examples.

The justification for extending pre-trial cross-examination to adult sex complainants in priority to domestic abuse or other intimidated complainants, who as a group are more likely to be subjected to pressure to withdraw the complaint, remains obscure. The MoJ stated that the new measures would ‘spare rape victims (sic) the trauma and inconvenience of attending court’. Most complainants in virtually any category of offence could lay claim to trauma and inconvenience by coming to court.

The ‘distancing’ myth

Advocates often are heard to say that witnesses are never as effective on the video link as they are in the witness box, perhaps behind a screen. As a blanket proposition this is a myth, because effectiveness depends upon the individual witness feeling enabled to give best evidence. A witness who mumbles or hangs his head down in court is more likely to speak directly to camera in the link room, and the speaker volume can be turned up without examining counsel or the judge having constantly to interrupt him to ask him to speak up. The layout of some courtrooms is not conducive to the jury clearly seeing the witness’s face and body language, as it is instinctive to look at the person speaking to you rather than toward a separate, silent audience. The plasma screen ensures that the witness’s face is always clearly visible.

"There is no empirical evidence to support the ‘distancing’ effect on jurors – provided the technology functions properly – and at least one study suggests the contrary, once the jury has received the standard direction on the reasons for the routine use of such technology"

Moreover, modern jurors are accustomed to speaking to people on small screens through Skype or FaceTime, so it is increasingly unlikely that they would discount the credibility of testimony because it is delivered on a large screen in the courtroom rather than in front of them. There is no empirical evidence to support the ‘distancing’ effect on jurors – provided the technology functions properly – and at least one study suggests the contrary, once the jury has received the standard direction on the reasons for the routine use of such technology.

This must be distinguished from the serious difficulties of defendants required to be interviewed by legal representatives or to participate in pre-trial proceedings via remote link, especially where vulnerability has not been assessed.

Video-link advantages for vulnerable defendants

Partly as a consequence of the ‘distancing’ myth, it is relatively uncommon for vulnerable defendants to be permitted to use the video link for their own testimony, and some trial judges have been known actively to discourage defendants from doing so. This needs to be evaluated very carefully, preferably with the advice of a registered intermediary (if the defence is lucky enough to get one, given the ‘rarity’ direction in CrimPD I 3F.13). Given the assumption in the YJCEA 1999 that other vulnerable witnesses need Special Measures protection to deliver their best evidence, it is perplexing that defendants with the self-same difficulties are often seen as not requiring it. They are also subjected to distinct pressures. Defendants on the autistic spectrum often have auditory disorders making them acutely sensitive to noise inaudible to others, such as buzzing fluorescent lights or ticking watches. Those with ADD are likely to find the courtroom visually distracting. The sound-proofed link room (CrimPD I Annex para 6.6(d)) and the video screen providing a single point of focus can greatly assist such defendants in focusing on the questions. In a multi-handed case, a vulnerable defendant may be intimidated by seeing his co-defendants in the dock watching him defend himself.

One factor which concerns some advocates is difficulty in maintaining eye contact through the link, but with practice this is workable. With exceptionally vulnerable witnesses it is good practice for questioning counsel to explain the reason they are breaking eye contact, to check notes or to seek direction from the court.

Visibility of the witness to the defendant

It has become a trope that complainants are entitled to testify without being seen by defendants; witness support volunteers recommend the screen over the live link for this reason. This should be contested by defence counsel. The Court of Appeal has held that the right of the accused to see his accusers should be denied only in ‘rare circumstances’, viz witness intimidation or an anonymity order (R v Taylor [1995] Crim LR 253; Watford Magistrates’ Court, ex parte Lenman [1993] Crim LR 388). The stated purpose of a screen under YJCEA 1999 s 23(1) is to prevent the witness from ‘seeing the accused’, not the other way around. A camera can be discreetly directed toward the witness behind the screen to enable the defendant to watch the evidence.

Regrettably, CrimPD V para 18.A.2 has adopted this trope without referring to defence rights. Sit in the public gallery for the testimony of a screened witness, and you will appreciate the difficulty of the defendant hearing a disembodied voice. If it is critical for the jury (and judge and legal representatives) to see the witness, then it is equally critical for the defendant, to participate effectively in the trial as guaranteed by ECHR Article 6 and the Human Rights Act 1998.

Child witnesses and remote link facilities

NSPCC research indicates that remote link facilities in England are used for domestic abuse complainants but only rarely for child witnesses, whereas they are routinely used in Northern Ireland by the Young Witness Service. The remote link avoids children and their carers having to attend the courthouse, an intimidating environment. They may fear encountering defendants or their supporters – which is realistic, given the current state of our courts with broken-down lifts and lavatories, and long queues at security. Witnesses can be summoned to the facility when the court is ready. Video facilities in nearby police stations should be considered for vulnerable defendants where, as is common, the court link room is adjacent to the witness waiting area. Planning is needed to identify and transport to the facility exhibits to be shown to the witness.

Let circumstances dictate

Campaigners for radical reform to the adversarial system in sex and child cases overlook the fact that inevitably it will be extraordinarily difficult for complainants to tell strangers about past private events which, if true, are traumatic, however sensitively their evidence is handled. This is equally true of those accused. Special measures aim to eliminate unnecessary stress for a person testifying. This requires banishing generalisations, replaced by scrutiny of the circumstances of that witness and the demands of justice in that trial.

Laura Hoyano is a tenant at Red Lion Chambers (London) and Associate Professor of Law at Oxford University.