Regaining Our Balance With Vulnerable Witnesses

11.08.17 | |

It is undeniably important that complainants alleging sexual offences are treated with consideration in the course of criminal proceedings, and we will rightly continue to see further research and development in the criminal justice system to promote this. It is equally undeniable, however, that there are times when the presumption of innocence can fall from view in the application and interpretation of rules and guidance that protect those making the allegations.

 

In R v SG [2017] EWCA Crim 617 the Court of Appeal (Simon LJ, Stuart-Smith J and The Recorder of Cardiff) considered a mid-trial decision by a Recorder to treat an eighteen-year-old complainant as vulnerable, and direct that the defence prepare written questions before cross-examination resumed the following day. Whilst the appeal was ultimately dismissed because the course adopted did not cause unfairness to the defendant and the convictions were safe, the Court’s summary and interpretation of current rules and guidance is likely to be of assistance to defence advocates in similar situations.

 

The discussion of the issues arising began with a strong and welcome reaffirmation of the prerogative of a defence advocate to test the prosecution evidence. Simon LJ observed (at paragraph 44) that it is wrong to characterise questions in cross-examination as being objectionable because they are ‘speculative’ or had not been foreshadowed in the Defence Statement. Where the defence case is a denial that an event or offence took place, the defence is entitled to test the truth and accuracy of prosecution evidence by questions which test their likelihood. Cross-examination of the ‘mechanics’ of how something happened may lead a jury to conclude that it did not happen, or may not have happened, in the way described by the witness. Such a challenge does not have to be specifically pre-figured in a Defence Statement.

 

His Lordship then went on to summarise the current provisions and guidance in relation to the treatment of vulnerable witnesses (see paragraphs 45 to 51).

 

Having done so, he noted that the complainant in the instant case had not been regarded as a vulnerable witness up to the point that cross-examination began, there had been no ground rules hearing, and she appeared to be a mature and articulate witness. Although a witness’s vulnerability may only become apparent when giving evidence, it is important for the court to hold a balance between the importance of a witness being able to give the best evidence they can without being harassed by the form or nature of the questioning and the potentially conflicting interest of a defendant in being able properly to challenge a witness’s account.

 

The Court also observed that whilst witnesses may find giving evidence in court (and reliving their experiences through their evidence) to be highly stressful, there may also be a reason for distress which might be said to favour the defence: a witness may have been caught out in a lie or may be apprehensive about being challenged in relation to an untruthful account given in evidence. ‘Importantly in the present context, a witness exhibiting signs of distress is not necessarily to be treated as a vulnerable witness’.

 

Even if a witness is vulnerable it does not follow that the only course is to direct the form of cross-examination – advocates will be aware of the danger of alienating the jury by inappropriate tone or content of questioning and have a professional duty to treat witnesses with proper consideration. ‘In the generality of cases courts should bear in mind the disadvantages to the defence in prescribing the form of questioning, not least because it may inhibit the development of cross-examination in response to a particular answer’.

 

This is a welcome recognition of the constraints that defence practitioners increasingly act under, whilst continuing to do the best for our clients and protecting their right to a fair trial.

 

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