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Emily Henderson looks at the cross-examining of vulnerable witnesses and asks whether this supposed jewel in the adversarial crown is being successfully reformed by the courts.
Conventionally, cross-examination is regarded as the jewel in the adversarial crown. However, 30 years of empirical research has shown it to be highly unreliable as a means of investigating the evidence of vulnerable people in particular.
Academic criticism is one thing: practitioner acceptance and engagement is quite another. All the legislative reform in the world will make no difference as long as practitioners continue to set their faces against change. As the Lord Chief Justice wrote in 2009 when a major report revealed the gap between child witness policy and its implementation in the courts: “[T]he real need [is] – not yet more initiatives and reforms, but the cultural change that is necessary to make the new framework a reality.” (“Introduction”, Plotnikoff & Woolfson, Measuring Up?, NSPCC-Nuffield, 2009, i-ii) Into this gap stepped the Court of Appeal with a string of decisions clearly aimed at shifting practitioners’ perceptions of what is acceptable in cross-examining vulnerable people. Beginning with 2010’s Barker, the Court set out a series of restrictions on techniques research shows are likely to produce unreliable evidence (R v Barker [2010] EWCA Crim 4; R v Edwards [2011] EWCA Crim 3028; R v W and M [2010] EWCA Crim 1926; R v Wills [2011] EWCA Crim 1938). Cross-examiners must communicate comprehensibly, must not use heavily suggestive techniques and must eschew comment. Moreover, the duty to put the case is restricted where the questions are outside the witness’s ability to answer or are likely to produce merely compliant responses. Issues should instead be explored with other witnesses or a list of issues which could not be explored should be put to the jury separately.
In 2013 I interviewed 25 sex-ticketed judges, 16 experienced criminal advocates and 10 registered intermediaries to examine whether there is any evidence that, under the Court of Appeal’s leadership, “cultural change” is occurring. The answer is, in essence, “yes”.
Attitudes to Barker
The respondents overwhelmingly welcomed Barker et al. They saw the changes as significant and necessary. Many were proud of what is being achieved and excited by the new direction. Moreover, the overwhelming consensus was that there are no fair trial concerns arising from the reforms, including the restrictions on putting the case, provided they are applied flexibly. Many, in fact, regarded the changes as simply bringing cross-examination practice back into line with its fundamental principles. It is, as one said, “cross-examination done properly.”
Communicative Competence
The interviews show:
However, there are still barriers to good practice and the implementation of the Barker standards:
The respondents recommended strongly that the cross-examination of vulnerable people be recognised as a specialist area and that there be mandatory training and accreditation of all counsel to improve standards. They also called for assistance for judges and advocates in developing new methods of questioning.
Judicial Intervention
In Barker et al, the Court of Appeal has given clear guidance that judges must take a managerial stance and enforce good practice standards at trial. Generally, judges are prepared to set ground rules and to be more interventionist. Advocates are also generally in favour of this approach.
However:
There are strong indications that the rate of intervention may still remain too low:
Ground Rules Hearings
Ground Rules Hearings are required where an intermediary is appointed and recommended in any trial where a vulnerable witness is involved. Recommended practice is that the hearing be convened in advance of trial, any intermediary be present at the hearing and the judge issue written directions.
Many judges and advocates consider GRH invaluable and are particularly passionate about the ability to use directions to forestall problems at trial and thus reduce the need to intervene.
However:
Registered Intermediaries
As has been found in past reviews, there was strong praise for the Registered Intermediary scheme and few reported problems. It was widely considered that intermediaries have made a considerable contribution to enabling access to justice for vulnerable witnesses and defendants and have improved the quality of the evidence received by the court considerably. The most significant reported problem was the failure to appoint intermediaries often enough for both witnesses and, importantly, defendants. The respondents identified a need to improve police and lawyers’ ability to identify vulnerability so as to increase referrals.
Conclusion
It is not yet possible to give the English and Welsh courts a clean bill of health in respect of their treatment of vulnerable people’s evidence, as I expect most of those I interviewed would agree.
While the judges are moving forward rapidly, there is an urgent need for mandatory training for all advocates involved in examining vulnerable people.
Moreover, there is a pressing need for increased engagement with academic experts in forensic interviewing to assist in developing alternative questioning strategies. Advocates should not consider they can go it alone in this complex and demanding field.
Overall, however, it is hard, as an outsider to the English system, to avoid being immensely impressed by what has been achieved so far.
Emily usually practises as a barrister in the criminal and civil courts in New Zealand but is currently on sabbatical completing her work as the New Zealand Law Foundation International Research Fellow, which fellowship funded the research in this article.
Academic criticism is one thing: practitioner acceptance and engagement is quite another. All the legislative reform in the world will make no difference as long as practitioners continue to set their faces against change. As the Lord Chief Justice wrote in 2009 when a major report revealed the gap between child witness policy and its implementation in the courts: “[T]he real need [is] – not yet more initiatives and reforms, but the cultural change that is necessary to make the new framework a reality.” (“Introduction”, Plotnikoff & Woolfson, Measuring Up?, NSPCC-Nuffield, 2009, i-ii) Into this gap stepped the Court of Appeal with a string of decisions clearly aimed at shifting practitioners’ perceptions of what is acceptable in cross-examining vulnerable people. Beginning with 2010’s Barker, the Court set out a series of restrictions on techniques research shows are likely to produce unreliable evidence (R v Barker [2010] EWCA Crim 4; R v Edwards [2011] EWCA Crim 3028; R v W and M [2010] EWCA Crim 1926; R v Wills [2011] EWCA Crim 1938). Cross-examiners must communicate comprehensibly, must not use heavily suggestive techniques and must eschew comment. Moreover, the duty to put the case is restricted where the questions are outside the witness’s ability to answer or are likely to produce merely compliant responses. Issues should instead be explored with other witnesses or a list of issues which could not be explored should be put to the jury separately.
In 2013 I interviewed 25 sex-ticketed judges, 16 experienced criminal advocates and 10 registered intermediaries to examine whether there is any evidence that, under the Court of Appeal’s leadership, “cultural change” is occurring. The answer is, in essence, “yes”.
Attitudes to Barker
The respondents overwhelmingly welcomed Barker et al. They saw the changes as significant and necessary. Many were proud of what is being achieved and excited by the new direction. Moreover, the overwhelming consensus was that there are no fair trial concerns arising from the reforms, including the restrictions on putting the case, provided they are applied flexibly. Many, in fact, regarded the changes as simply bringing cross-examination practice back into line with its fundamental principles. It is, as one said, “cross-examination done properly.”
Communicative Competence
The interviews show:
However, there are still barriers to good practice and the implementation of the Barker standards:
The respondents recommended strongly that the cross-examination of vulnerable people be recognised as a specialist area and that there be mandatory training and accreditation of all counsel to improve standards. They also called for assistance for judges and advocates in developing new methods of questioning.
Judicial Intervention
In Barker et al, the Court of Appeal has given clear guidance that judges must take a managerial stance and enforce good practice standards at trial. Generally, judges are prepared to set ground rules and to be more interventionist. Advocates are also generally in favour of this approach.
However:
There are strong indications that the rate of intervention may still remain too low:
Ground Rules Hearings
Ground Rules Hearings are required where an intermediary is appointed and recommended in any trial where a vulnerable witness is involved. Recommended practice is that the hearing be convened in advance of trial, any intermediary be present at the hearing and the judge issue written directions.
Many judges and advocates consider GRH invaluable and are particularly passionate about the ability to use directions to forestall problems at trial and thus reduce the need to intervene.
However:
Registered Intermediaries
As has been found in past reviews, there was strong praise for the Registered Intermediary scheme and few reported problems. It was widely considered that intermediaries have made a considerable contribution to enabling access to justice for vulnerable witnesses and defendants and have improved the quality of the evidence received by the court considerably. The most significant reported problem was the failure to appoint intermediaries often enough for both witnesses and, importantly, defendants. The respondents identified a need to improve police and lawyers’ ability to identify vulnerability so as to increase referrals.
Conclusion
It is not yet possible to give the English and Welsh courts a clean bill of health in respect of their treatment of vulnerable people’s evidence, as I expect most of those I interviewed would agree.
While the judges are moving forward rapidly, there is an urgent need for mandatory training for all advocates involved in examining vulnerable people.
Moreover, there is a pressing need for increased engagement with academic experts in forensic interviewing to assist in developing alternative questioning strategies. Advocates should not consider they can go it alone in this complex and demanding field.
Overall, however, it is hard, as an outsider to the English system, to avoid being immensely impressed by what has been achieved so far.
Emily Henderson looks at the cross-examining of vulnerable witnesses and asks whether this supposed jewel in the adversarial crown is being successfully reformed by the courts.
Conventionally, cross-examination is regarded as the jewel in the adversarial crown. However, 30 years of empirical research has shown it to be highly unreliable as a means of investigating the evidence of vulnerable people in particular.
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