Professor John Jackson, Professor of Comparative Criminal Law & Procedure at University of Nottingham, and Professor Jonathan Doak, Associate Dean for Research at Nottingham Law School, discuss developments in cross-examination on trial:
Much attention has been given to the rise in the use of video technology in the courts brought about by the Covid pandemic. Covid has been said to have sparked a new digital revolution which will transform the way the courts operate. But well before the pandemic, video technology was already being used to enable vulnerable witnesses to give their best evidence through special measures that avoid the need for them to give their evidence in person in the courtroom in the full glare of publicity.
Witnesses have for some time been able to have their examination in chief during the trial substituted by an ABE (achieving best evidence) interview pre-recorded by the police before the trial. Last November a more radical measure permitting cross-examination to be pre-recorded before the trial as well was rolled out nationally across England and Wales for children and other witnesses with a physical or mental disability. This avoids the need for them to give any live evidence at their trial which may not take place until many months – sometimes years – after the events in question. A pilot has also begun in certain Crown Courts to allow victims of sexual and modern slavery offences to avail of video-recorded cross-examination.
Special measures like these are part of a quieter revolution which has been adapting our traditional adversarial system to the needs of its ‘customers’: victims, defendants, witnesses and indeed society as a whole. The impact of cross-examination has long been a particular focus of concern, particularly upon vulnerable witnesses who are forced to answer questions about distant events under the relentless spotlight of counsel’s questions and who often fail to give their best evidence. ABE interviews and video-recorded cross-examination bring forward the time at which witnesses will be questioned about events. But in recent years these have gone hand in hand with more fundamental changes to the nature of cross-examination itself.
Spearheaded by the senior judiciary and the Court of Appeal, cross-examination is fast shifting away from the traditional ‘advocacy’ model geared towards winning cases towards a ‘best evidence’ model, wherein cross-examination is used as an investigative opportunity for testing the veracity and completeness of witnesses’ evidence. Intermediaries appointed to assist vulnerable witnesses to communicate may intervene to explain questions being put and to explain the witness’s answers. Criminal Practice Directions now require judges to take control of cross-examination in cases of vulnerable witnesses not only in the trial itself, but also by setting out boundaries in ‘Ground Rules Hearings’ (GRHs) which have become compulsory in cases involving intermediaries and where pre-recorded cross-examination is to take place.
Researchers from the University of Nottingham and Nottingham Trent University are currently mid-way through a three year research project, Mapping the Changing Face of Cross-Examination in Criminal Trials, which is exploring the impact of these changes in criminal practice. As part of this project, the research team organised a colloquium on 1st October at the Nottingham Conference Centre for practitioners to share their understandings and experiences of how cross-examination is changing in the criminal courts. The keynote speaker was HHJ Sarah Whitehouse QC, a recently appointed Circuit Judge based at Woolwich Crown Court and Honorary Professor at Nottingham Trent University. Presentations were also given by two members of the project’s Advisory Group (Tim Jebb, a barrister practising in Northern Ireland and Professor Penny Cooper, Chair of the Advocate’s Gateway) and two locally-based registered intermediaries (Alison Cousins and Sallie Mellors). Some excellent discussion ensued on the back of the presentations among the 26 delegates who comprised judges, legal practitioners, intermediaries, academics and a delegate from the Ministry of Justice.
Opening the conference, HHJ Sarah Whitehouse said that very considerable progress had been made in the last two years in London through the early identification and listing of cases where there are vulnerable witnesses and in terms of training advocates in their questioning of such witnesses. There was more, however that could be done to improve the quality of ABE interviews so as to make them a less fertile ground of cross-examination. She said that criticism of recent reforms focuses on the argument that they undermine the adversarial nature of the trial. But in her view cross-examination is a right to test evidence; it is not a right to introduce new evidence or make speeches or to be used as an opportunity to raise the emotional temperature of the trial. All of these are prevented when advocates have to present questions in advance. She also refuted that idea that restrictions on putting the defence case to the witness affected the fairness of the trial process. In the vast majority of cases, it is perfectly possible to put the defence case to the witness in a way that is properly worded. In a small number of cases, however, often involving a young child, no advantage is served in putting the case to the witness and counsel can put the defence case to the jury with a direction from the judge as to why it had not been ppt to the witness.
Tim Jebb provided the audience with a picture of the increasing pace of change in Northern Ireland after the infamous ‘Belfast Rugby Trial’ in 2018 in which four elite rugby players were acquitted of rape, attempted rape, exposure, and perverting the court of justice. During the trial the complainant was subjected to a lengthy cross-examination involving repeated intimate questioning by four different defence advocates over nine days. The outcome of the trial resulted in widespread public protests and a review by Lord Justice Gillen which set out a plan for transformative change, entailing a new culture of cross-examination, which departs from the conventional adversarial approach. On the back of this, a Practice Direction was issued in 2019 requiring that Ground Rules Hearings should ordinarily be held in hearings involving vulnerable complainants and must be arranged where the witness is a child, or where a registered intermediary has been appointed to aid communication. Some (though not all) judges take the view that presenting a list of questions to be put to vulnerable witnesses is now mandatory.
Mr Jebb ended his presentation by highlighting some concerns with the recent changes. He said that not allowing the defence case to be put to vulnerable witnesses was a ‘double-edged sword’ if the witness could have explained any inconsistencies which defence counsel go on to highlight to a jury. There was uncertainty about what the effect of pre-recorded cross-examination would be when it was introduced and he questioned the extent to which the changes to cross-examination were in reality assisting adult complainants in sexual offence trials. This led to discussion on whether all the changes were going in the right direction.
Alison Cousins and Sallie Mellors explained how the role of the intermediary had evolved over the years, noting that from the outset their role was not just about changing the language of questions, but also to facilitate witnesses’ understanding and their ability to express themselves. When registered intermediaries were piloted in 2004, there was initially no sharing of questions ahead of trial and no GRHs. Counsel’s use of complex language led intermediaries to intervene, though this was discouraged by judges. Practice had since shifted significantly and almost all of the work of the intermediary was now done pre-trial.
The first task was to prepare a report for the court which assesses the bespoke needs of the witness as no witness was the same and there was not a ‘one size fits all’ approach. The best practice was then for counsel to share planned questions with the intermediary prior to the Ground Rules Hearing, ideally a number of days or a week before, so that the intermediary can provide direct feedback and suggestions to counsel before the GRH. Informal discussions with both counsel before the formal hearing is often the most productive way of resolving/agreeing issues. Any outstanding issues can
then be resolved by the judge at the GRH. When there is an agreement on the way forward, there is then much less need for intermediaries to intervene directly in the trial.
The Advocate’s Gateway provides many detailed recommendations on how the language of questions may need to be adapted for a vulnerable witness, simplifying vocabulary and changing the sentence structure to make it short, simple, direct. Registered intermediaries advise on re-wording questions so that the ‘essence’ of the question is retained but the linguistic complexity is reduced. They may also make suggestions about questions that need to be further explored at the GRH, the topics that may lead to distress or curtailment of questioning, and how an essential challenge or the ‘case’ can be put to a witness.
Alison Cousins and Sallie Mellors reported that, In general, intermediaries now experience positive responses from judges and counsel and it feels more like all parties are working together with the goal of ‘achieving best evidence’. After the presentation an interesting discussion developed on whether the role of the intermediary extends beyond simply eliciting witness testimony towards helping cross-examiners to test it.
As someone who has been researching the efficacy of participation and communication in the courts for many years, Professor Penny Cooper reflected on whether cross-examination should be different according to the types of court in which it is practised or the types of witness being cross-examined. She cited a passage from the Bar Standards Board website in which it is stated that advocates should think carefully about whether or not the style of advocacy and questioning that are used in other court proceedings would be appropriate to use at an inquest. When it comes to vulnerable witnesses, there was a tendency to draw a distinction between ‘traditional’ cross-examination and ‘modern’ cross-examination. It is assumed that whilst ‘traditional’ cross-examination remains appropriate for ‘non-vulnerable’ witnesses, it has to be adapted for ‘vulnerable’ witnesses. But the reality was that cross-examination should perhaps be changing in a more fundamental way for all witnesses. Penny Cooper’s presentation prompted some lively discussion on the purpose of cross-examination and what purpose was served by asking leading questions of witnesses.
The day ended with the research team thanking everyone – both the speakers and the delegates – for their participation during the day. Everyone appeared to relish the opportunity to engage face to face in a non-virtual event, a cautionary lesson for reformers keen to advance a digital revolution in the courts. Covid may have triggered a much greater use of digital testimony but however much this becomes a ‘new normal’, there are questions to be asked about how far features of the traditional trial model, such as ‘live’ testimony in court and cross-examination, should be accommodated to meet the requirements of ‘best evidence’.