Forensic Psychology
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Researchers evaluating the live link noted that children using the system were rated as self-confident and speaking fluently, and audibility was rarely a problem (Davies & Noon, 1991). One continuing practical problem remains the limited availability of live link courts, as illustrated by Mary’s experience described earlier; a sudden change of plan can be particularly alarming for vulnerable witnesses, especially if their preparation for court has been based around them testifying via live link (e.g. Plotnikoff & Woolfson, 2004).
More fundamental problems of resistance to the technology have been reported by researchers. Davies and Noon (1991) noted that prosecution barristers were concerned that witnesses testifying via live link appeared more remote and that their testimony might have less emotional impact on the jury. Perversely, witnesses not breaking down when testifying were seen as less likely to convince the jury of their account. Subsequent experimental research has supported the view that live evidence may be viewed more positively by observers than video evidence, but not that the medium of giving evidence has an impact on the outcome of trials (Davies, 1999; Landstrom, 2008). This concern also begs the question as to whether children would be able to give as good evidence in the alien setting of the courtroom as they provide when shielded by the live link (Davies, 1994).
Perhaps one of the most significant lessons from the introduction of the live link has been that the element of choice about how to give their testimony can be important to witnesses (Cashmore & De Haas, 1992). Being able to decide whether or not to use the technology may be as important as the technology itself – which is why understanding witnesses’ apprehensions and concerns, and their preferences for testifying, is such an important part of the supporter’s role. The 1999 Act included a presumption that all child witnesses would use the live link, so ensuring uniformity of practice across the courts. However, the Coroners and Justices Act, 2009 relaxed this rule and permitted young witnesses to testify from behind screens or in open court if they so wished, subject to the discretion of the presiding judge. The same Act also extended the availability of special measures for young witnesses from 17 to 18 years of age (Davies, Bull, & Milne, 2016).
14.4.2 Pre-recorded Evidence-in-Chief
As we have seen, the live link addresses mainly socio-emotional factors associated with testifying, although these may themselves impact on other cognitive factors. For example, stress at testifying may negatively affect a witness’s recall of information (Bottoms, Najdowski, & Goodman, 2009) and/or may exacerbate language factors, both comprehension and production. The use of the pre-recorded evidence positively addresses these factors, first, by reducing the time between the event and recording the witness’s account and second, by recording the interviews in informal settings away from the court with specially trained interviewers, to reduce the degree of stress likely to be experienced by the witness when providing their testimony.
The advent of robust digital recording equipment has meant that the malfunctions associated with the original videotape presentations have largely been overcome. An early Home Office evaluation of recorded interviews with children reported that the reforms had been welcomed by members of the judiciary, police and social services (Davies, Wilson, Mitchell, & Milsom, 1995). The report found that witnesses giving their evidence via pre-recorded interview were perceived as half as stressed than those who gave their evidence live at court (19% vs. 37%) and that trained interviewers were seen as more supportive than barristers at court (37% vs. 19%), although both groups were anxious during live cross-examination. Again, there was some resistance among barristers: prosecution barristers concerned (as with live link) that use of video-recorded evidence might have a reduced impact on the jury, and defence barristers believing that witnesses would find it easier to lie and deceive if they were not physically present in the courtroom. Statistical analyses on prosecution and conviction rates conducted for the evaluation did not support either concern (see also Burton et al., 2006).
Legal practice with child witnesses is that witnesses are permitted to see their pre-recorded interview ahead of trial to “refresh the witness’s memory” in the same way as a written statement, but this practice is far from uniform (Hamlyn et al., 2004; Plotnikoff & Woolfson, 2009). Although most children have found it helpful to be reminded of what they said, some find it distracting and distressing to see themselves on the recording. Plotnikoff and Woolfson, (2009) reported that 31% of their sample said they found viewing the video upsetting and 56% reported the experience as strange or funny:
I’d done the interview two years before. I just kept staring at how different I looked. I didn’t really see it as me.
Carrie, aged 18 (Plotnikoff & Woolfson, 2009, p. 70 )
The latest guidance emphasises that vulnerable witnesses should be permitted to view their pre-recorded interview prior to trial, but their supporters should anticipate some of the emotions that may accompany its viewing.
The use of pre-recorded interviews with child complainants in sexual and physical abuse cases is now well established. The Hamlyn et al. survey (2004) found 95% of children in sex abuse trials gave evidence in this way, but their use with other vulnerable groups, such as victims of domestic violence or rape, to record early accounts of what allegedly occurred is not yet common practice (Ellison & Munro, 2014). It will also be interesting to see whether the discretion embodied in the Coroners and Justices Act (2009), giving greater choice to young witnesses as to how they give their evidence, affects these figures.
14.4.3 Removal of Court Dress by Judges and Other Court Officials
The impact on vulnerable witnesses of the discretion given to judges to request the removal of court dress has not yet been the subject of systematic research. Hamlyn et al.’s (2004) survey reported that the removal of wigs and gowns occurred in 15% of all cases involving vulnerable witnesses, but the figure for children rose to 25%. The thinking behind this proposal is to try to reduce the social distance between witnesses and court officials, in much the same way that police interviewers of children wear civilian clothing when conducting investigative interviews (Davies, 2010).
They asked me if I wanted them to take their wigs off and that, and I said “yes”. And they took them off, so they looked okay.
16-year-old male with mild learning disability (Sanders et al., 1997, p. 65)
There is certainly research evidence that children are more suggestible and less forthcoming when interviewed by police officers in uniform than when dressed as civilians (Powell, Wilson, & Croft, 2000). Following a consultation conducted by the Lord Chancellor in 2003, the majority of judges and barristers favoured the retention of formal dress in criminal trials. Subsequently, judges in the civil courts joined their colleagues in the magistracy and the family courts in not wearing court dress, but wigs and gowns remain the norm in criminal courts, unless the presiding judge requests otherwise (Daily Mail, 2007).
14.4.4 Taking Evidence in Private
Judges in the early years of the Act seemed reluctant to use their powers to clear the public galleries when vulnerable witnesses gave sensitive evidence; the Hamlyn et al. survey reported that this occurred for just 10% of witnesses. Cases involving sexual offences have always attracted prurient spectators, and noisy interventions from friends and family of an accused aimed at intimidating witnesses are not unknown (Davies, 2010). Given the high frequency of intimidation reported by vulnerable witnesses in the same survey, more use of this power by judges might be anticipated.
14.4.5 Intermediaries and Aids to Communication
The use of intermediaries as interlocutors between witness, barrister and judge was perhaps the most witness-centred of all the reforms introduced in the 1999 Act. It was also the most unpalatable to the legal profession, who had long regarded their right to personally question witnesses as fundamental (e.g. Spencer & Flin, 1993), despite numerous examples of poor practice with vulnerable witnesses (Henderson, 2002; 2012; Walker, 1994).
As a result, the intermedi
ary special measure was first introduced as a two-year pilot project in selected courts. The evaluation (Plotnikoff and Woolfson, 2007b) found that intermediaries were generally employed in the investigative and pre-trial phases and only a few had appeared at court by the end of the pilot. Almost all users reported finding the intermediaries of value. Plotnikoff and Woolfson (2007b) quote one judge as saying that the intermediary was “strong and intervened when questions became too complex. Her interventions did not come too often but they were invaluable”. An example of how an intermediary can contribute at all stages of the criminal justice process can be found in John’s story described in Case Study 14.2.
As a result of the success of the pilot study, the intermediary scheme was rolled out throughout England and Wales in 2008 and a similar scheme is being piloted in Northern Ireland (Department of Justice, 2015). Currently there are over 100 intermediaries registered with the Witness Intermediary Scheme for England and Wales. The majority are drawn from speech and language therapists, emphasising the role of intermediaries as facilitators of communication. Where a witness has communication difficulties, the intermediary may spend time with them prior to trial, learning to interpret their speech sounds to assist the intermediary in conveying their answers in court. Mute witnesses may use devices such as computers, voice synthesisers, symbol boards or books to convey their answers. In R v Watts (2010), elderly witnesses with severe communication needs alleged sexual assaults by their carer. The presiding judge agreed to the use of communication aids, in combination with a number of other special measures, to enable these witnesses to give their evidence in the form of an assisted ABE interview and to be cross-examined on the content (CPS, n.d.).
Tasks undertaken by intermediaries have extended beyond investigative interviews and trials to other parts of the criminal justice process, such as identification procedures. Intermediaries are also being used in the family courts and to assist vulnerable defendants. While there are still misunderstandings among some members of the judiciary as to their function, intermediaries are performing a valuable and growing role within the criminal justice system (Plotnikff & Woolfson, 2013, 2015).
CASE STUDY 14.2 AN INTERMEDIARY IN ACTION
The defendant, John, attended A&E with his 2-year-old son, Tom. Tom was found to have numerous injuries, including a broken leg. Tom was also found to have a healing fracture, which was a few weeks’ old. John gave an implausible account of how Tom had come to be injured. The only witness was Jane, John’s wife. Jane had a learning disability and difficulties with understanding and expressing herself.
Jane initially supported John’s account, but on hearing of his arrest, informed the police that John had lost his temper because Tom was crying and had physically assaulted Tom. Jane also catalogued a history of violence towards Tom, and that John had also been violent to her and their other children in the past.
John admitted the assault, but denied that he had intended to cause serious injury to Tom.
The only evidence that could be called to prove John’s intent was that of Jane. An intermediary was instructed, who advised that it would be possible for Jane to give evidence in court via live links, with the assistance of an intermediary to enable effective communication and enable her to give her best evidence.
Specific recommendations made by the intermediary to assist Jane in court included:
A pre-trial visit with the intermediary and a practice at using the live link
The intermediary to be allowed to alert the court to possible misunderstandings and help rephrase questions
Advocates and judge to introduce themselves in person
Breaks at 30-minute intervals
Avoiding idioms and ambiguous language
Short questions
Single questions
Introducing a change of topic whilst questioning to avoid confusion
Always using names (not “he”, “she” etc.)
Understanding that Jane has difficulty explaining when something happened so questions must be linked to specific events like birthdays.
An application for special measures for Jane was successful. Jane was able to give evidence by live link with the assistance of the intermediary. John was convicted and sentenced to 14 years’ imprisonment
(Reproduced with permission from the Crown Prosecution Service: Special Measures: Intermediaries webpage at http://www.cps.gov.uk/legal/s_to_u/special_measures/#a14)
14.4.6 Pre-recorded Cross-examination
The provision included in the1999 YJCE Act for video-recorded cross-examination as a special measure was actively resisted by many barristers. This proposal had also formed a central feature of the Pigot Report (1989). Pigot had suggested that following the investigative interview with the child complainant, this recorded interview would be shown to the defendant and their legal representative. If the charges were denied, then cross-examination would take place prior to the formal trial in an informal setting, presided over by a judge and with counsel for the prosecution and defence present. The defendant would also attend and would be able to watch proceedings, either via a one-way mirror or on closed-circuit television, and would be able to communicate with their lawyer via an earpiece receiver. These proceedings would also be recorded and if the case went to trial, that recording would be shown in place of the child’s live cross-examination and re-examination at court. In this way, Pigot argued, most children would be freed from the necessity of attending court at all and be spared any attendant distress (Spencer & Flin, 1993; Spencer & Lamb, 2012). In the event, this aspect of Pigot’s proposals was never enacted in law.
The special measure for pre-recorded cross-examination embodied in the Youth Justice and Criminal Evidence Act (1999) differed in some important respects from those envisaged by Pigot. The cross-examination would now take place immediately prior to trial. The reasoning behind this change appeared to be to ensure that the barrister who conducted the cross-examination was the same person who represented the defence at trial. Changes in the legal representation of a defendant are a commonplace in the English legal system, as is the late availability of important case documents or reports upon which the defence may rely. While accommodating current legal working practices, the proposal was robbed of many of the advantages for the vulnerable witness. There could be no question of an early cross-examination removing the stress and pressure from the witness and allowing therapy to take place without risk to the prosecution case. Further, the delay could have the same adverse impact upon the witness’s memory as of old. Continuing opposition from some sections of the legal profession ensured that this section of the 1999 Act, though passed into law, was not immediately implemented.
However, cases such as the suicide of Francis Andrade sustained public concern for the welfare of vulnerable witnesses under cross-examination. In June 2013, the Home Secretary sanctioned a pilot scheme to be conducted in three Crown Court centres for pre-recorded cross-examination for child complainants of sexual abuse. The outcome of this pilot has still not been made public, although the Crown Prosecution Service did release details of some cases from the Leeds and Liverpool Crown Courts, where pre-recorded cross-examination took place and resulted in convictions and substantial prison sentences for child sexual assault (CPS, 2014).
14.5 STILL UNMET NEEDS
Giving evidence in a criminal trial under the adversarial system of justice is a stressful experience for all witnesses, but presents particular difficulties for those who are vulnerable.
We have already described the social support available from the Witness Service and witness care units and how they can assist witnesses on arrival at court. We have now described the range of special measures that have been introduced into the courts to assist vulnerable witnesses in tendering their evidence. However, formidable problems still remain and need to be addressed, in particular, measures to tackle delays and postponements in hearing cases at court and a more pro-active approach to overly aggressive cross-examination.
One endemic feature of the court process appears to be delay: delays in the holding of a trial and later, delays during the trial itself. As Plotnikoff and Woolfson (2012) note, there has long been an official commitment to “speedy progress” for cases involving children but no data is available to evaluate this claim. Official figures, however, suggest an average delay of eight months in the Crown Court; the longest being 30 months (Plotnikoff & Woolfson, 2009). Long delays are usually caused by rescheduling due to an inability to go ahead on the arranged date, caused by the overrunning of an earlier trial or the non-availability of courts or a judge. Over one third of Plotnikoff and Woolfsons’ sample had experienced three changes of date before their case finally went ahead. In the second quarter of 2013, some 36% of trials did not go ahead on the appointed date for these reasons (Ministry of Justice, 2013a).
PHOTO 14.3 Successive postponements of trial can have an adverse impact on the memory of vulnerable witnesses, such as the elderly and young children.
Source: © Andrew Penner/Getty Images
The impact on witnesses of successive postponements is particularly egregious, adding to already high levels of stress and in the case of young children and some elderly adults, having an adverse impact on their memory for the original events (Flin, Boon, Knox, & Bull, 1992; Davies & Robertson, 2014). The Equal Treatment Bench Book (Judicial College, 2013) urges judges to be robust in their trial planning and adherence to timetables, but the problem persists (e.g. Criminal Justice Joint Inspection, 2012). A recent survey for Victim Support (Rossetti, 2015) suggested that average delay between a complaint and trial had now stretched to ten and half months; Crown Court reported a backlog of 54,000 cases, an increase of 75% since the year 2000.