Cross-examination under the microscope

In response to growing awareness of the distressing effect of cross-examination on vulnerable witnesses, adjustments have been made to ease their distress to enable them to give their best evidence. The use of special measures such as pre-recorded Achieving Best Evidence (ABE) interviews and ‘live-link’ testimony have been supplemented by the rollout of pre-recorded cross-examination known as ‘section 28 hearings’. Vulnerable and intimidated witnesses, including sexual offence complainants, no longer need to attend criminal trials. 

In a series of rulings the Court of Appeal has also required that cross-examination itself is changed so that advocates ‘adapt to the witness, not the other way round’ (R v Lubemba; JP [2015] 1 WLR 1579 [45]). The main mechanism for giving effect to this change has been the ‘Ground Rules Hearing’ where intermediaries play a central part in shaping appropriately phrased questions for advocates and judges issue directions accordingly. The Advocate’s Gateway has published toolkits on how vulnerable witnesses should be questioned and the Inns of Court have rolled out a national programme of vulnerable witness training.  

To assess the impact of these changes, a team of researchers from the University of Nottingham and Nottingham Trent University has examined the manner in which vulnerable and ‘non-vulnerable’ witnesses were cross-examined in jury trials across five Crown centres in England and Wales. The team adopted a multi-stranded methodology of trial observation, transcript analysis and interviews with judges, advocates and intermediaries. To identify best practice, the researchers also carried out fieldwork in Scotland, Northern Ireland and Ireland.  

Their report, Mapping the Changing Face of Cross-Examination, provides a mixed picture, with examples of both good and bad practice across the trials observed and transcripts analysed. Positively, there was a willingness on the part of practitioners to improve the cross-examination experience for vulnerable witnesses and to help them achieve best evidence, and a broad acceptance of many of the changes.

Less positively, it was found that the effectiveness of many of the special measures is being thwarted by poor technology, trial delays and logistical problems. A persistent theme was the poor quality of video and audio in the pre-recorded ABE interview and in live-link or pre-recorded cross-examination. Poor audio equipment and acoustics in courts, compounded by inappropriately placed microphones in ABE interview rooms, meant that judges were often left to choose between letting the ABE run or delaying the trial while transcripts were prepared for juries. In some cases the audio link would not play at all with the result that complainants who were expecting to be cross-examined had to be sent home while the issue was fixed.  

Delays also occurred when the link to enable section 28 hearings failed to work and new ‘slots’ had to be accommodated.   Many practitioners reported that pre-recorded cross-examination was being rolled out without enough thought given to the significant logistical problems regarding listing cases, and without investing in the quality of the equipment and staff training.

In the trials that were observed vulnerable witnesses, especially children, were cross-examined for shorter periods than other witnesses and there was a perceptible difference in the manner and tone of cross-examination of vulnerable witnesses, although this was less evident in the case of vulnerable defendants. Tagged questions – ending in ‘isn’t it?’, ‘didn’t you?’ and so on – were less frequently asked of vulnerable witnesses, especially children, although such questions were far from avoided completely. Cross-examiners are also signposting topics much more to vulnerable witnesses. However, questions put to vulnerable witnesses were on average as long as those put to other witnesses, with the exception of child witnesses. Statements in place of questions are still a feature of the cross-examination of vulnerable witnesses, as is the use of closed questions such as, ‘do you remember?’ or, ‘do you agree?’.

To assist advocates in recognising the challenges vulnerable witnesses face when being questioned, the report suggests that linguistic analysis, with real-life, concrete examples from trial transcripts, could be embedded into training and guidance manuals such as the Advocate’s Gateway toolkits. The report identifies a need for better recognition of mental health vulnerabilities and the use of trauma-informed practices. Local court user groups chaired by judges could also be used to develop more consistent approaches towards witness familiarisation visits, the use of intermediaries, ground rules hearings and pre-recorded cross-examination.

In their comparative review, the researchers found that there was a greater willingness to appoint defence intermediaries in Northern Ireland where the registered intermediary scheme applies to both vulnerable defendants as well as prosecution witnesses. Although Scotland has not adopted intermediaries, both here and in Ireland there is a statutory scheme in place to allow ‘supporters’ to sit alongside vulnerable witnesses. The practice of taking ‘evidence on commission’ in Scotland has been extended to include the evidence of adult sex complainants and appears to have worked more smoothly than pre-recorded cross-examination in England and Wales.

There is much still to be learned about the specific and varied communication needs of witnesses and defendants, and how guidelines and training can be most effectively tailored to permit them to give their best evidence. It is encouraging that legal professionals are recognising the importance of facilitating their communication needs. But there is much work to do to improve the way vulnerable witnesses are currently cross-examined.

Jonathan Doak is a professor at Nottingham Law School, Nottingham Trent University. John Jackson is a professor at the University of Nottingham. Mapping the Changing Face of Cross-Examination in Criminal Trials can be read here