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October 2, 2016

What court process is really in the best interest of witnesses?

No-one denies that the experience of giving evidence in a criminal trial can be traumatic, particularly cross examination.  Some witnesses say that going through cross examination was worse than the crime itself.  So governments and the judiciary have striven to make the process easier.  The risk of the current (usually stressful) process is that it may dissuade victims from reporting crime, or from turning up to give evidence.

Its absolutely understandable that the government should try to change court practice to reduce the trauma experienced by vulnerable witnesses.  So in 2013 they started piloting the pre-recording of cross examination of vulnerable witnesses.  This means that children (particularly those who have alleged abuse) and vulnerable adults can give their evidence for a trial many weeks in advance, without actually taking part in the trial itself.

So far so good, but what effect does this new way of doing things have on outcomes and on justice?  The government has just published a process evaluation (done by MoJ researchers) and announced that this shows the pilot to be such a success that the facility to pre-record cross examination will be rolled out nation-wide.

But the research only measures the success of the process, not of the outcome, and therefore roll out seems risky.  The researchers followed a number of cases in which vulnerable witnesses were offered either the opportunity to record their evidence in chief in advance, or to do this and pre-record their cross examination by defence and prosecution.   Not surprisingly, witnesses really appreciated being able to be cross-examined outside the courtroom at a scheduled time. No-one likes being cross examined, and the witnesses had nothing to compare it to, but the researchers concluded that pre-recorded witnesses were less stressed by cross examination than witnesses in a live trial. But another supposed advantage of pre-recording cross examination – that recall is better because the process is less delayed – was not found. Witnesses were still cross examined many weeks, if not months, after the events in question so still often had hazy memories.

We also don’t know whether pre-recorded cross examination prejudices the strength of the prosecution case.  @crimbarrister has defended in one of these cases.  He is convinced that juries do not like pre-recorded cross examination: “juries like to get proper look at witness, which they don’t on pre-recorded XX. It feels too rehearsed”.  These views are echoed by some of the practitioners quoted in the MoJ research, but dismissed:  “there is little difference in the rates of conviction at trial for s.27 and s.28 cases (46% and 54% respectively). This suggests the concerns discussed in Chapter 4 that the recording of evidence may disadvantage the prosecution case because it is too remote, may not be supported”.

But can we dismiss the concerns so easily?  No-one has actually asked jurors what they think about the pre-recording of cross examination, and we absolutely don’t have enough data to know how pre-recorded cross examination effects convictions.  The numbers used in the MoJ research are too small (71 with pre-recorded cross examination, 109 without) to reach definitive conclusions.  To get a real idea of whether pre-recorded cross examination prejudices the prosecution case, you would need to do randomised controlled trials of the same case with and without, or do a close analysis of the outcome of similar cases.

So this new court practice has been brought in without clear evidence that it is successful.  It has been introduced to improve the experience of prosecution witnesses (which it undoubtedly does) but, ironically, it may reduce the impact of their evidence and thus make conviction less likely.  It may not, we just don’t know. Is justice served for witnesses by making the experience of giving evidence less stressful?  The jury is out.