Let sleeping dogs lie: Cross-examination in advance of trial in cases of sexual assault.
For many years now witnesses, particularly in cases involving allegations of sexual assault, have been able to choose from a number of options as to how to give their evidence in a criminal trial. What are called ‘special measures’ are available. These include a witness giving evidence from behind a screen so that the defendant cannot see the witness.
Special measures also allow a witness to give evidence without ever setting foot in the courtroom at all. In almost all cases involving sexual allegations these days the evidence in chief of a witness is recorded on a DVD usually within days, even hours, of the complaint being made. The purpose of this is not only to record the witness’s testimony at an early stage but also to spare the witness the ordeal of having to give evidence live in court.
In 1989 a committee led by Judge Pigot reported on the desirability and feasibility of having evidence of witnesses in sex cases recorded and used in this way. More controversially, the report also suggested that the same could be done for cross-examination.
Allowing for the fact that back in 1989 committal proceedings meant that a case might spend months in the Magistrates’ Court, the report seems to have envisaged such cross-examination taking place at an early stage once the case had been transferred to the Crown Court and certainly on a date well in advance of the trial itself. More recent supporters of this provision have certainly worked on this assumption.
When the Youth Justice & Criminal Evidence Act 1999 was passed to bring in a comprehensive range of special measures, section 28 gave the court power to direct that cross-examination of the witness should also be by way of video recording, as Pigot had suggested.
But despite the passage of 14 years and a number of Home and Justice Secretaries under the last Labour government who were not noted for their liberal attitudes this particular provision was never implemented. Until now. There is a good reason for that. The provision is, in my view, ill thought out, it is likely to cause serious practical problems in its implementation and it is likely to work unfairness in an area of law where already the rights of those accused of such offences are very hard to secure.
Knee jerk reaction
It seems that a combination of the shock felt by many at the revelations that for decades Jimmy Savile was sexually abusing children he came into contact with plus concerns raised about cross-examination in a recent multi-handed sex trial has caused a knee jerk reaction in the government and as a result it has decided to implement a provision that has previously lain dormant for 14 years.
The idea of having the cross-examination of a witness, who has already given his or her evidence on a DVD, itself recorded in advance of trial sounds superficially attractive. In practice there are many problems in the way. Trials vary enormously. These proposals might perhaps work in a straightforward case, where for example there is a single complainant and a single accused person, although even there I remain to be convinced of the feasibility of these proposals.
In the first place the DVD will have to be copied for the defence and a transcript supplied with it. That usually, takes weeks rather than days. Then the defence need time to consider the evidence. The solicitor will need to go through the DVD statement with the defendant and take his instructions on it. That is the minimum that will need to be done and that work alone will mean that in practice any cross-examination only occurs a number of weeks after the evidence in chief is recorded.
If the allegation is historic there is unlikely to be any scientific evidence and the case may well depend simply on the word of one person against another.
In cases where the complaint is recent however and scientific evidence does exist the defence may well need their own expert’s report before the complainant can be properly cross-examined. In some cases there may be little in the way of unused material, that is material, usually in documentary form, which has been obtained by the police during the investigation but which for one of a number of reasons is not to be relied on by the prosecution. In such cases it may be possible to conduct the cross-examination in advance of the trial proper safe in the knowledge that the defence advocate has at his or her disposal all the relevant material and information they need to conduct a thorough and fair cross-examination of the witness. However there are likely to be many other cases in which such a procedure will simply not be possible, even if it were desirable.
So I have doubts whether such plans can be implemented even in straightforward cases if any proper consideration is to be given to the rights of the accused. But those doubts are as nothing compared to my concerns in relation to cases involving a number of defendants and where allegations are made by a number of complainants.
In such cases I believe the implementation of section 28 cannot be achieved without disregard for the rights of the accused. Such cases may once have been rare. These days they are not. The question arises in relation to them as to when the cross-examination is to take place. Any idea that it may happen shortly after the evidence in chief has been recorded is unrealistic and unlikely to happen in practice.
It seems to me that however desirable cross-examination in advance of trial may be, the reality is that it can only be done effectively as part of the trial itself, perhaps in the week or two before the jury are to be sworn. If that is the case then the question arises as to what exactly is gained by adopting such a process? Just think for a minute of the logistics. When any trial begins everyone involved, judge, advocates, solicitors, police, defendants and witnesses have to be brought together at the same time in the same place.
If pre-recorded cross-examination is to be done, all these people will have to be brought together so they can hear the evidence and questioning. This simply wouldn’t be practicable much in advance of the trial date. The lawyers as well as the judges all have other trials they are involved in. It seems most unlikely that those other trials could be disrupted so that the advocates can go off to another court to conduct such a cross-examination, weeks or months before the trial is due to start. In multi-handed cases all the advocates will have to be present during this process.
The witnesses will need to be cross-examined one after the other. Depending on the number of witnesses and the length of their evidence, this process can take weeks not days. There would seem to be plenty of scope for witnesses to have to be re-called in the course of the actual trial even after their DVDs have been played because other evidence in the case, not known to the advocates at the time of the cross-examination has emerged. Indeed section 28 specifically makes provision for this to happen. If that happens on a regular basis it seems largely to defeat the object of the exercise.
Then there is the major issue of disclosure of unused material. This remains a serious problem particularly in many trials of sexual allegations. Invariably the problem is exacerbated by the fact that much of the material in question which it is vital that the defence see before any cross-examination can take place is not in the possession of the police or the CPS.
Records relating to a person who has been in care, for example, are held by local authorities. There may also be educational records also held by outside authorities which need to be gathered and considered for disclosure. For reasons that are not clear such bodies still seem to find it very difficult to comply in a timely fashion with requests for disclosure despite the fact that such requests are entirely routine these days. In practice huge volumes of unused material often running to thousands of pages are not disclosed until the very eve of the trial despite orders made by the the judge which were intended to ensure that the defence had the material weeks before the trial began. Once the defence have this material it all has to be read because otherwise no one will know if the unused material contains evidence that can be used in cross-examination.
It seems to me that unless local authorities can get their disclosure processes into rather better order than at present (and given current staff cuts that seems highly unlikely) this would all simply add to delay in arranging any advanced cross-examination until the case is ready for trial in any event.
None of this of course takes account of the realities of life in cases of sexual assault. The idea of allowing witnesses to give evidence by DVD was no doubt first conceived with good intentions. It is said this is to enable the witness to give their best evidence. The fact is that allegations of sexual assault are unpleasant. Those who have been in such trials often think there is a real mismatch between the allegations explained in the opening address by the prosecution advocate and what the jury see next.
I don’t think juries expect to see a witness who is complaining of a serious sexual assault sitting on a big comfy settee (often hopelessly over-sized in the case of a child) holding a teddy bear or other cuddly toy or climbing over the furniture whilst a police officer tries to question them as occurred with one child witness in a case I was involved in. Many prosecutors I have spoken to over the years are convinced that such arrangements actually detract from the force of the complaint.
As a result I know many prosecutors who actively encourage witnesses to ignore special measures altogether and give evidence live in court, in the belief that this has a much greater impact on a jury. I think they are right about that and it is a perfect example of the law of unintended consequences that an idea thought up by those who lack experience of a trial end up damaging the very cause they think they are promoting.
For all the adverse publicity recently about the treatment of young witnesses, in a recent lengthy case at the Old Bailey, out of the six complainants only one chose to give evidence over the TV live link.
Four of the others gave evidence in court from behind a screen and one, now aged over 21, gave evidence in the usual way. All at their own request. Decisions by complainants about how they give evidence are often only made shortly before the time they are due to give that evidence. It seems therefore that a further consequence of enacting section 28 will be that the evidence in both chief and cross-examination will have already been recorded before the witness is in any condition to make an informed decision about how they wish to give their evidence.
Has anyone considered what is to happen if long after the event the witness says that they wish to give evidence in court? And if the answer is that they will still be able to choose at that stage, then again it raises the question about the point of this whole exercise.
Then there is fairness to the accused. It is all well and good for people to talk about the rights of the accused to a fair trial and how the English knew all about this long before anyone had ever thought of the European Convention but anyone who has actually defended in a sex case knows the reality is that a defendant is at a massive disadvantage right from the start. These days of course it’s bad enough simply to be accused of sexual assault. But there are many other disadvantages to those unlucky enough to face such an allegation. Not the least of these is section 41 of the same Act, another no doubt well intentioned provision designed to stop sexist cross-examinations about irrelevant matters. In practice however, and despite the intervention of the House of Lords in R v A (No.2) (2001) without which the whole provision would have fallen foul of the Article 6 right to a fair trial, there are plenty of examples of where judges have imposed such restrictions on cross-examination as to make it all but impossible to put the evidence into the correct context.
Of course all reasonable steps should be taken to enable a witness to give evidence freely. But it must not be forgotten that we have an adversarial system in the UK and that involves witnesses being challenged as to the truth of their testimony. That may be unpleasant for the witness but it is a necessary part of the trial process in order to test the validity of the evidence. In the current climate of opinion there are few worse things to be accused of than sexual offences. Yet to listen to or read some of the so called experts in this field you could be forgiven for thinking that some of them consider that the very idea of cross-examining a complaint is objectionable. Certainly if it goes beyond a very gentle and probably totally ineffectual probing of the evidence.
Any advocate defending in a sex case must always remember two things. First, if you lose the jury you lose the case. Secondly if the witness doesn’t understand the language in which you question them you are not going to get very far. With that in mind I suggest that most advocates are very careful to ensure that the manner of their cross-examination is such as to try to ensure that they do not lose the jury or upset the witness more than is unavoidable when challenging their evidence. The judge can and should regulate the proceedings including interrupting if necessary to help ensure that the questions put are intelligible to the witness and not unfair. The protection afforded by s.41 is formidable and again in the hands of a judge who knows what they are doing should provide more than adequate protection for a vulnerable witness.
There is an old adage that advises that we should let sleeping dogs lie. The fact that section 28 has lain unused on the stature book for so long should tell us that many think it is unworkable in practice. Despite that it seems the government is now determined to give it a try. I do not think it will work, certainly not in multi-handed cases and I suspect it will turn out to be far more trouble that ever it was worth.
Mark George QC
Mark George QC is a highly experienced defence trial advocate of more than 30 years' experience. Mark works from Garden Court North chambers