Cross-examination of Vulnerable Witnesses — House of Commons, 2016-07-06
Topic: Law and Crime
Ann Coffey (Labour, Centre-left): I would be very interested in any evidence from the Scottish courts of the success of pre-recorded cross-examination. It would be very helpful to know a little bit more about that Last year I visited the honorary recorder of Liverpool, who informed me that their experience of the section 28 pilot scheme has been characterised not only by vast improvements in the experiences of vulnerable and child witnesses, but by better case management, leading to shorter trials and fewer delays for everyone. I have since spoken to members of the judiciary at each of the pilot courts, and the response has been overwhelmingly positive. His Honour Judge David Aubrey QC made it clear that there has been a cultural shift in the manner of cross-examination, rendering unnecessarily repetitive and aggressive cross-examination a thing of the past. Likewise, her honour Judge Sally Cahill QC told me that implementation of section 28 in Leeds has been a "great success", enabling "witnesses to give their best evidence in a way that is as good for them as it can be in an adversarial system" They both confirmed that there has been no detrimental effect on the fairness of trials. The Minister will know that such unanimous judicial enthusiasm is unusual, but we have, after all, an exceptional opportunity before us. Her honour Judge Susan Tapping told me that in her view "national rollout of section 28 could be one of the single most beneficial improvements in delivering justice to some of the most vulnerable in society" We should also remember that the benefits of section 28 are not limited only to trials concerning sexual offences or to cases where the witness is the victim of the alleged crime. Section 28 applies to vulnerable witnesses giving evidence in all manner of cases. For instance, one judge involved in the pilot scheme told me that she had recently presided over a very serious armed robbery case where the only evidence linking the defendant to the crime was that of a child who happened to be sitting on a wall nearby and saw the whole thing. The child’s evidence was taken under section 28, and the defendant pleaded guilty a few days after the recording was made We often speak of the need to listen to the voices of vulnerable children and vulnerable people in this House, but rarely are we confronted with such a clear opportunity to put that belief into action. Where children and vulnerable individuals can contribute to the administration of justice, they have a right to do so without causing harm to themselves. Facilitating that participation makes everyone safer It is clear that in all cases the benefits of section 28 are extensive. I have repeatedly been told that in section 28 pilot cases more defendants are entering early guilty pleas, thus shortening victims’ suffering and, of course, saving police resources and valuable court time. In Leeds, the latest figures suggest that 51% of defendants pleaded guilty prior to the section 28 cross-examination. In normal circumstances, many guilty defendants do not plead guilty at the arraignment stage or until the day of the trial, in the hope that, for example, a witness may not turn up. But where the section 28 procedure is used a guilty defendant will know first that they are faced with a witness giving evidence at a much earlier stage, and secondly, that if they do not plead guilty before the recording of that evidence they will lose much of the credit available to them for doing so. That leads to early guilty pleas, early closure for the victim and huge cost savings, as once the plea is entered no further evidence gathering or case preparation is required In those cases where the trial moves forward, proceedings are much more time efficient because it is no longer necessary to wait for the witness to attend court. Pre-recorded evidence means that persistent interruptions—for example, because a vulnerable witness requires breaks in order to cope or to concentrate—can be avoided The overall time taken to conduct cross-examination has also been reduced in areas where the pilot scheme is operating. The judiciary has issued a protocol governing section 28 cases, under which there must be a ground rules hearing before the recording of the cross-examination can take place. That means that there is much greater scope for judges to review questions to be put to the vulnerable witness, so irrelevant, inappropriate or repetitious questions can be filtered out well in advance. Although that time saving must be balanced with the time required for such pre-trial hearings, it is reasonable to expect that as advocates become more experienced in the new style of cross-examination there will be less need for judicial correction and hearings will be shorter. That expectation has been borne out in Leeds where, as experience has grown, ground rules hearings in section 28 cases have sometimes been sufficiently dealt with electronically, without the need for extra time in court. On average, the evidence provided to me indicates that the impact of section 28 is such that trials that were previously taking four to six days are now taking two to four days. That is obviously great news for vulnerable witnesses. It also has a knock-on beneficial effect for all other cases in the lists, by introducing greater flexibility in case management. A roll-out of section 28 could provide a real opportunity to reduce the existing delays in the criminal justice system. In the context of widespread court closures, the Government cannot afford to waste that opportunity One reason for hesitation in implementing section 28 has been the apprehension from some parties that vulnerable witnesses would often need to be recalled to attend trial as new evidence emerged, neutering any beneficial effect that the pre-recording of cross-examination might otherwise have. As I am sure the Minister is aware, no evidence suggests that that has in fact been a problem. I have spoken to and corresponded with judges from each pilot area, and between them they could identify just a single case in which a vulnerable witness had to come back for a second cross-examination. Early disclosure of evidence can be ensured through proactive judicial case management, with judges having the power to delay recordings if not everything is prepared. It should be remembered that if re-examination is necessary, it can be dealt with by a pre-recording If there must be a retrial for any reason, recorded evidence means there is no danger that a prosecution will collapse simply because a witness is reluctant to repeat the experience of giving evidence. The process of a retrial is also speeded up as a result. For example, a retrial of a section 28 case in Liverpool occurred within a fortnight, as soon as a new jury panel was in place. We can expect similar results where cases involve a number of defendants, requiring the trial to be split. Rather than requiring the witness to attend each trial, their cross-examination can instead be re-played as many times as necessary. That removes the need for vulnerable witnesses to be exposed multiple times to the adversarial process As I have said, pre-recorded evidence continues to be taken in three pilot areas, which means that there is now a postcode lottery for vulnerable witnesses. It cannot be right that only a small minority have access to those protective measures. Tens of thousands of children are called to give evidence each year, and they should all have the benefit of section 28. Such a transformation in the national criminal justice system will take time, but, given the Government’s commitment to full implementation by March 2017, that decision can no longer be put off. As the Home Affairs Committee emphasised three years ago, section 28 represents the will of Parliament, and it is incumbent on the Ministry of Justice to implement it in a timely manner As the Minister will know, I have raised implementation of section 28 in this House, and through written questions, many times—today marks the 10th such occasion since 2013. I know that the Minister shares many of my concerns, and I thank him for the recent meeting that he held with me and Lord Judge on the matter. I look forward to hearing what steps he now intends to take.