Evidence

David Wurtzel believes that the guidance given by the Court of Appeal in R v M and W on questioning young witnesses has muddied its own message 

The conclusion by “Raising the Bar” (the report by Advocacy Training Council’s Vulnerable Witnesses and Defendants Handling Group) that there is a “clear and pressing need for training for advocates in how best to handle vulnerable people in Court” is more momentous than might first appear. The concept of the “vulnerable witness” goes back to 1998 and the Home Office report, “Speaking up for Justice”. 

The vast majority of expert witnesses agree that evidence from experts is more reliable if they are still working than if they are retired. Of 109 experts surveyed by expert witness training provider Bond Solon, 80 per cent agreed with Lord Justice Moses’ comments in R v Henderson, that medical experts in practice were a “far more reliable source” of evidence. 

Kathryn Stone OBE and Professor Karen Bryan offer advice on identifying and communicating with witnesses with learning difficulties    

Richard Jones QC meets the President of the Royal College of Paediatrics and Child Health, Professor Terence Stephenson 

In Re W the Supreme Court reformulated the approach a family court should take when exercising its discretion to decide whether to order a child to give live evidence in family proceedings. However many questions still remain unanswered,  believes Chris McWatters 

 Most barristers would consider it a travesty of justice if they were not allowed to cross-examine a complainant who had made allegations against their client, especially if those unchallenged allegations were believed by a court. 

The Bar Council recently responded to the Commission’s Green Paper on the possible extension of the European Evidence Warrant, to cover evidence that is not yet in existence (e.g. taking a witness statement) or that exists but is not directly available without further action (e.g. obtaining DNA samples). The existing EEW is widely seen in practice as too limited in scope. The Bar is calling for defence rights to be dealt with first, and for provision to facilitate the obtaining of defence evidence cross-border too. At the time of writing it is not yet clear whether the Commission will issue its own proposal, or be beaten to it by a Member State proposal on the issue of obtainability of evidence, which is also in the works. 

The decision in R v Barker on child witness evidence in criminal cases establishes that the competency test is the same for children and adults, write Professor Penny Cooper and David Wurtzel.  

With the decision in R v Barker [2010] EWCA Crim 4 the matter of children giving evidence in criminal trials has, so to speak, come of age. On 1 May 2009 at The Old Bailey, Baby Peter’s step-father, Stephen Barker, was convicted of the anal rape of a girl, “X”, who was less than three years’ old at the time of the offence. She was four and a half years’ old when she gave evidence. X had been living with her mother Tracey Connelly, Stephen Barker and his brother. At the age of two years and ten months X was taken into care following the unnatural death of Baby Peter. X made disclosures to her foster carer of sexual abuse by Barker and subsequently to a child psychologist who was seeing her for the purposes of care proceedings. Six months after the first allegation she was interviewed on video under “Achieving Best Evidence in Criminal Proceeding” (“the ABE interview”). The trial for anal rape of a child under 13 was postponed until after the murder trial in the Baby Peter case. X watched her ABE interview a few days before the trial; it stood as her evidence-in-chief. She was cross-examined by leading counsel for her mother and for Barker. 

The LSC has published two documents relating to criminal Crown Court defence work—Pages of Prosecution Evidence Guidance and an Information Pack on the Advocates’ Graduated Fee Scheme. The documents are both available on the LSC website. 

In the wake of the recent Court of Appeal interlocutory judgment giving the green light for the first trial on indictment by a judge alone, David Wolchover and Anthony Heaton-Armstrong propose some convenient and inexpensive jury tampering countermeasures 

The Northern Ireland judge-only Diplock courts for the trial of cases involving a terrorist dimension linger on, though nowadays with a much reduced throughput. But while the risk of jury intimidation and religious bias may have waned in Ulster the perceived problem of jury tampering—or “nobbling”—had supposedly increased in England and Wales to such an extent that provision was finally enacted in the Criminal Justice Act 2003 (“CJA 2003”), s 44 for trials on indictment to be conducted where appropriate without a jury. 

“Have you embellished your evidence?” Joyce Plotnikoff and Richard Woolfson, the authors of Measuring up?, examine the challenges of questioning young witnesses at court