Cross-examination of Vulnerable Witnesses

Lisa Cameron Excerpts

Wednesday 6th July 2016 Commons Chamber

[Ann Coffey (Stockport) (Lab)]

Giving evidence can be a daunting process. A courtroom is not a hospitable environment for anyone but a lawyer. For most people, the surroundings are intimidating and the procedures strange. It is even harder for children and other vulnerable witnesses, who struggle with the stress of having to re-live difficult experiences in a room full of strangers.

We have repeatedly heard about vulnerable witnesses being subjected to courtroom trauma at the hands of over-zealous defence lawyers. Last year, a 13-year-old child was accused of lying during the trials of the so-called Banbury sex gang because it was “better to be a victim than a slag”. One young girl I spoke to in the course of preparing the report, “Real Voices: Child Sexual Exploitation in Greater Manchester”, told me that being cross-examined was one of the worst experiences of her life. She said:

“There is not a word to describe how bad it was. It was like one attack after another. One of the barristers was not even asking me questions; he was just shouting at me”.

In cases involving sexual offences in particular, we know that, too often, victims fail to report the incident or to pursue prosecution because they fear facing humiliation in court. In all kinds of cases, the testimony of vulnerable witnesses continues to be undervalued and ignored. Of course, there have been big strides in improving the situation for vulnerable witnesses in recent years, particularly though the use of registered intermediaries and other special measures, but we are still a long way from a situation in which all witnesses can give their best and most accurate evidence, no matter their vulnerabilities.

There is one part of the trial process in which vulnerable witnesses continue to be subjected to unnecessary and unjustifiable distress, namely cross-examination. We all agree that the right of the defendant to a fair trial and a robust defence is absolute and essential. However, research has repeatedly shown that traditional cross-examination techniques are not appropriate for vulnerable witnesses. A study conducted by Joyce Plotnikoff and Richard Woolfson suggested that at least half of child witnesses do not understand the questions put to them in court—a figure rising to 90% for those under the age of 10. How can these children possibly give their best evidence in these circumstances?

Building a justice system in which no one is disadvantaged is in the interests of everyone, including defendants. It is true that many judges are now trained to intervene when barristers ask questions that are beyond the cognitive ability of witnesses. This is all to the good, but it is not enough. Aggressive and disorientating cross-examination techniques are still widespread, despite repeated judgments from the Court of Appeal that they are not acceptable where vulnerable witnesses are concerned.

[Dr Lisa Cameron (East Kilbride, Strathaven and Lesmahagow) (SNP)]

It is extremely important that children are able to give good and reliable evidence. Does the hon. Member agree that, as research indicates that children are suggestible, leading questions should not be used in the court process?

[Ann Coffey]

I entirely agree with the hon. Lady. She is quite right. What we want is credible evidence, not evidence extracted by bullying.

The recent spate of high-profile sexual exploitation trials have provided stark examples. One young victim giving evidence in the Telford sex gang trials was repeatedly accused of lying and being naughty, and one barrister even demanded to know whether she repented her sins. Overall, she spent 12 days being cross-examined by a series of defence lawyers. As it stands, judges have no real power to limit the duration of questioning or the number of lawyers who can cross-examine a highly vulnerable witness in court. Practice directions encourage judges to set limits, but despite this judicial practice remains very uneven. That is why the measures in section 28 of the Youth Justice and Criminal Evidence Act 1999 are so important. This section provides for the cross-examination of vulnerable witnesses to be filmed at a pre-trial hearing and played to the jury at trial.