Vulnerable Witnesses

21 Dec

So Britain’s oldest Defendant begins his 13 year sentence at 101 years of age. There was a need to ‘adjust’ the normal procedures during the trial, but his extreme old age was no bar to prosecution. It’s a good illustration of how the Criminal Justice System has adapted to deal with witnesses and defendants who – some years ago – wouldn’t have seen the inside of a Courtroom...

Read More

So Britain’s oldest Defendant begins his 13 year sentence at 101 years of age. There was a need to ‘adjust’ the normal procedures during the trial, but his extreme old age was no bar to prosecution. It’s a good illustration of how the Criminal Justice System has adapted to deal with witnesses and defendants who – some years ago – wouldn’t have seen the inside of a Courtroom.

And this is only the start. In recent years, the Court have been far more prepared to accept evidence from young and old and those who are vulnerable in other ways. Which, if you think about it, makes perfect sense. Those of us who work in RASSO cases know that the stereotypical offender will single out the weak as targets, but it’s a feature of other types of offence. Why do people knock on the doors of the elderly and con them into having a new roof? They are seen as ripe for the plucking.

So welcome to the roll-out of section 28 of the Youth Justice and Criminal Evidence Act 1999. Better late than never. It’s the provision which allows for the cross-examination of witnesses to be video-recorded before the trial and when it’s fully implemented, young and vulnerable witnesses will be spared the ordeal of the trial. Their evidence will still be part of the proceedings, but their part will be played at an early stage and they won’t have to wait around for months until the Court can find a slot for the case to be heard. And their evidence will be much fresher, given closer to the events.

As part of the preparation, the Western Circuit aims to have trained all barristers by the end of 2017. Because not only is the procedure different, the advocacy is different too. We’ve all seen and read of cases where victims have been unable to endure cross-examination in the traditional sense, sometimes with tragic consequences. So in the future, the style of cross-examination will have to change.

‘It is now accepted that if Justice is to be done to vulnerable witnesses and the accused, a radical departure from the traditional style of advocacy will be necessary. Advocates must adapt to the witness, not the other way round.’ Per Hallett LJ

R v Lubemba (2014) EWCA Crim 2014

Watch this space for more details.

We’re already seeing the changes coming into effect with an increasing use of intermediaries and Ground Rules hearings to discuss the questions to be asked. This is going to become much more common, and much more formalised. Judges will expect you to have drafted questions in advance and the discussions will extend to cover the topics that need to be challenged and how (or if) it is to be done. They will be one of the more important hearings in the whole trial.

Which is why there is good news. The Legal Aid Agency has been paying Ground Rules hearings as a standard appearance fee. However, a Costs Judge in R v Gratland has – quite rightly – decided that they should be paid as a Legal Argument. Which, after all, is what they are.

Rob Griffiths

For more information on Criminal Law, click here.