THE BLOG

Cross Examination of Vulnerable Witnesses Is a Necessary Evil

16/06/2014 11:39 | Updated 15 August 2014

It is often forgotten that the Shakespeare quote "Let's kill all the lawyers" was not a literal message but a suggestion on how to create an autocratic state. News this week that judges have been trained to be more proactive in controlling improper cross examination of vulnerable witnesses has created a backlash against lawyers. However, people commenting about "scum" and "sadistic" advocates forget that it is the parties who create the trial, not the advocates, whose role is to apply the law and represent their instructions. Witnesses do not have to be cross examined if a defendant pleads guilty. They are only cross examined if the defendant disagrees with what they say. Being cross questioned is never pleasant. It is even harder when discussing personal issues. The real issue is whether, when judges are more interventionist than usual, both sides can receive a fair trial. A criminal trial is not a balancing exercise. A judge directs a jury that they must be sure an allegation is correct before they can convict. Aggressive questioning can and should be curtailed but legitimate questioning cannot. That is what a trial is for and in serious cases involving vulnerable witnesses no one comes out feeling good. It is a trauma for a genuine victim who has to re-live their experience in front of a bunch of strangers and a trauma for an innocent defendant. Prosecutors need to make sure that witnesses are treated with respect and dignity. Defenders need to make sure their client is treated fairly and has an opportunity to have their case properly heard.

Defending cases involving vulnerable witnesses and sexual allegations is really tough and in the current round of cuts whilst some advocates are exhausting themselves doing a good job in a crumbling system, others are put under pressure to take on more than they should, prosecuting and defending. The consequence is that there are some examples of poor advocacy. This does not mean that every advocate is behaving improperly but the bad examples are being used to change the system and we need to ensure that the changes retain fairness. It is easy not to ask "tag" questions and to agree inconsistencies on paper but witnesses will still be required to give evidence. The days of "I put it to you" are long gone. Publicity from judges that they will control things doesn't necessarily provide reassurance. The valuable toolkits produced by the Advocates Gateway already provide clear guidance on how to conduct cross examination, accreditation of advocates is proposed and a national conference is in the pipeline. Judges cannot and should not take over advocacy and shouldn't need to get involved if advocates act properly.

Dealing with cases involving children or vulnerable adults is one of the most complex areas of law where there are extra rules about what you can ask and how you can ask about it. The advocates and judges are always under pressure due to lack of court time. There are nearly always additional issues over supporting evidence arising from delayed complaints, distress, medical experts and scientific opinion. Some cases require the use of intermediaries to help witnesses (sometimes including the defendant) to communicate. Add to that the witnesses are vulnerable - whatever the truth or otherwise of the allegation - there is always an awful of material upon which to base proper cross examination on reliability and credibility - think school records, social services records and medical records. These can contain examples of when the witness has lied or given an inconsistent account about important matters in the trial. Now we have Facebook, Kik and other social media and sometimes it beggars belief what children, especially vulnerable children say online. All of this has to be considered, digested and converted into careful questions that the witness will understand, whilst having an eye on whether the defence case is fabrication, exaggeration, collusion, alibi or some other area of law. Evidence (whether in pre-recorded video or at trial) can be different from what the police are told in a 999 call or in a meeting recorded in a pcoket notebook and sometimes the notes are not made properly by police and other professionals involved and the whole thing takes on a life of its own.

The truth is, we only started prosecuting these cases a couple of decades ago. Before that vulnerable witnesses were ignored, child suspects were not charged as they had the protection of doli incapax and adult suspects were not charged as they had the protection of the corroboration rule. Now we recognise that sexual allegations should be tried in court. That does not mean every allegation is true. Invariably the issues are that the allegation has been fabricated and the advocate is duty bound to cross examine on information that allows the jury to assess whether they can be sure the allegation is true or not. It requires detailed and careful preparation, clear and direct questioning in ordinary language, a real knowledge and understanding of the issues and an ability to juggle the demands of a needy client and a judge who is usually pretty sick of the daily diet of cases involving these types of cases. An increasing number of complaints to the police about such crimes will not make this task any easier. So, before you endorse judicial autocracy or hit the comment line with a plethora of anti- lawyer comments and jokes, click on The Advocate's Gateway and see how it really should be done.