Is the UK safeguarding rights of vulnerable witnesses whilst balancing the need for fair trial?

Justice depends on the public having trust in the legal system which relies upon victims and witnesses of crime coming forward to report an incident, to provide a statement and, as a case progresses, to give evidence in court. Keeping in mind the defendant’s right to a fair trial which is enshrined in Article 6 of the European Convention on Human Rights, this essay is set to discover the special measures adopted by the UK courts to safeguard the protection of vulnerable witnesses, witnesses testifying in a criminal trial, witnesses with mental or physical disabilities and witnesses who are in fear of the ramifications that follow their testimony. This essay will go on to reflect on the procedures that have been adopted in supporting victims and witnesses through the criminal justice process in the United Kingdom and what various techniques are used to balance the rights of the witness, victim and defendant. Further analysis will then be done to see whether the special measures and directions contravene guarantees of a fair trial.

Section 53(1) of the Youth Justice and Criminal Evidence Act 1999 states that “At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence“. In R. v MacPherson (Ian)[1] the test proposed for who was competent to give testimony was addressed and it was decided that the test was “one of understanding, that is to say: can the witness understand what is being asked and can the jury understand that witness’s answers?“[2] Witnesses are compellable if they may lawfully be required to provide evidence and most witnesses who are competent can be compelled to give evidence.[3] in light of these authorities it is evident that a large group of witnesses are left vulnerable to compulsion to give evidence. These include children, and people with mental disabilities.

Vulnerable Witnesses

Vulnerable witnesses are described under Section 16 of the Youth Justice and Criminal Evidence Act 1999 as one of the following: children aged under 18; witnesses suffering from a mental disorder as per Mental Health Act 1983; witnesses significantly impaired in relation to intelligence and social functioning and witnesses having physical disability or a physical disorder which, according to the court, may reduce the quality of their evidence.[4]

Also, intimidated witnesses are defined by section 17 of the Youth Justice and Criminal Evidence Act 1999 as those suffering from fear or distress in while testifying before an open court. A court of law while deciding whether a witness is intimidated considers and asses a number of factors. These factors include the nature and circumstances of the crime, age of witness and their cultural, social and ethnic background; domestic and employment circumstances; religious beliefs or political opinions etcetera.[5] Victims of sexual offences automatically fall into this category unless they request to opt out. Similarly, witnesses to certain offences involving guns and knives are also automatically placed in this category unless they desire to opt out. Others that can be regarded as intimidated witnesses include the families of homicide victims, witnesses who self-harm or elderly or frail witnesses or victims of domestic violence or racially motivated crime.[6]

Testifying in a court can prove to be a difficult or even terrifying experience as the environment of the court room is adversarial, formal and unfamiliar. Cross-examination by the lawyers can be unnecessarily aggressive and most witnesses lack a full understanding of the procedures. This can prove to be even more of an ordeal for vulnerable and intimidated witnesses. They may also be frightened to testify in the presence of the accused. These difficulties can prove to be more severe for children, people with disabilities, and victims of sexual offences or domestic violence.

The European Court of Human Rights not only recognizes the defendant’s right to a fair trial but also recognizes the witnesses’ rights as well. In Doorson v. Netherlands[7] the Court held that witnesses are protected by the ECHR and genuine concern in developing fair trial procedures.[8] Article 6 does not expressly provide for the interests of witnesses, however if their life, security and liberty are at risk then they will fall within the scope of Article 8 of the ECHR. States should organize their criminal proceedings in such a manner that the interests of witnesses are not unjustifiably infringed. Keeping these rights in mind, the principles of fair trial also require the interests of the defence to be balanced against those of witnesses called upon to testify.

Doorson v. Netherlands involved anonymous witnesses, where the court accepted that while Article 6(3)(d) imposes the “minimum” right for the defence to be able to “examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”[9], the conditions under which the examination takes place and the admissibility of evidence are matters of national law and the Strasbourg Court’s main concern is to consider whether as a whole the trial was fair. This means that they assess whether the procedures adopted in a case by a national court to balance the interests of the defence and the witnesses prevented a fair trial or not.

Special Measures for Vulnerable and Intimidated witnesses

The courtroom is an intimidating and confusing place for even a normal adult. To make the experience bearable and easier for distressed, vulnerable and intimidated witnesses, special measures have been introduced by the United Kingdom.^[10] However, they are not automatically available. They have to be applied for and a vulnerable or intimidated witness will only qualify for such special measures if the court finds that the quality and quantity of their evidence would otherwise be deteriorated if they were not given access to them. The quality of evidence means its completeness, coherence and accuracy.^[11]

Section 19 of the Youth Justice and Criminal Evidence Act 1999 provides for special measures available to vulnerable and intimidated witnesses if they qualify. These measures^[12] include:

1. Judges’ and lawyers’ removal of wigs and gowns
2. Aiding in communication by providing a computer or other devices to communicate
3. Using video-recorded interviews
4. Giving evidence through a live TV link from outside the courtroom
5. Giving evidence in private in the courtroom, without members of public present
6. Giving evidence from behind a screen placed around the witness box
7. Examination and cross-examination of the witness via  Registered Intermediary
8. Removing the accused from the courtroom

Some of these measures such as removal of the wigs and gowns or providing aids of communication to physically disabled witnesses do not raise questions of the defendant’s right to a fair trial. However, some of the other measures do which contravene with the defendant’s right to question the evidence against him.

A video recording of the witness’s interview can be submitted as the witness’s evidence in chief. After the recording has been played, the witness may be cross-examined and re-examined, often by live-link. Article 6, in provides that all evidence be produced in the presence of the accused at a public hearing with a view to adversarial argument.^[13] Nevertheless, this does not entail that testimony of witnesses should always be made at a public hearing in court.  In the case of Redbridge Youth Court[14] the court unanimously held that the admission of the video interview under the Criminal Justice Act 1988 does not infringe Article 6. The right under Article 6 ensures that the accused is given a sufficient and appropriate opportunity to challenge the evidence against him, either at the time the witness was making the statement or in later stages of the proceedings. When the witness does provide evidence through live link, or a pre-recorded interview, the accused, through his legal representative, has this opportunity.[15]

However, the use of special measures does put the defence on a disadvantage as it provides difficulty in effectively cross-examining the witness. For example, pre-recorded interviews can be edited and the use of live links decreases the opportunity to evaluate the witness’s demeanour and reduces the chances of casting doubt on the accuracy of the witness’s statement.

Another issue is the denial of cross-examination once a child’s video interview is submitted. Section 27(4) the Youth Justice and Criminal Evidence Act 1999 provides that once the video interview is admitted and “if it appears that the child will not be available for cross-examination and the parties have not agreed that there is no need for the witness to be available, the trial judge apparently is vested with a discretion to exclude it.”[16] So the question arises that if an English court were to admit a child’s video interview who was was no longer available for cross-examination, would the ruling infringe Article 6(3) (d)?

In Unterpertinger v. Austria[17] the Strasbourg court held that Article 6(3)(d) is contravened when the defence has no opportunity to challenge the evidence presented against them at any stage.  However, in exceptional cases even the Strasbourg Court has allowed for video-interviews even if the child becomes unavailable for cross examination. In the case of M.K. v. Austria[18], the commission refused an application to summon two children to an Austrian court as they were hospitalised for psychiatric treatment due to suspected sexual abuse. This was decided based on psychiatric evidence that if the children were required to testify they would be caused irreparable psychological harm. The commission held that the psychiatrist’s hearsay evidence of narrating the child’s account of the abuse caused great difficulty because the child was not available to be questioned, but the opportunity to cross-examine the psychiatrist and the other evidence verifying the abuse settled that the denial to call the victims did not disproportionately hamper the rights of the defence. It has also been repeatedly held by the Strasbourg jurisprudence that Article 6 does not give the defendant unlimited , unchecked right to summon the witness into court , and it is up to national law of the member state to decide whether the witness should be called up to provide further evidence.

Additional questions that arise are in context of whether the special measures such as use of videolinks or removing the defendant from the court room are compatible with the principle of equality of arms.[19] There should be equality of arms between the parties, so, this means that the defence has the same right to examine witnesses against them as the prosecution has and also in the same circumstances. This means equality in the demonstration of each party’s own evidence, in a way that one party must not be placed at a substantial disadvantage.[20]

The special measures signal to the court that the witness must be protected from the defendant which might infringe this principle. Nonetheless, the Strasbourg court has taken a highly practical approach to the question of the defendant’s right to confront the witness and declared that the Convention doesn’t provide for physical, face to face interaction between the parties and witness and the use of video links in such circumstances has been deemed most appropriate. [21]

Through video links the defendant is deprived of seeing and hearing the witness in the court room live. However, the defendant and the court can see and hear the witness, and at the same time assess his or her demeanour and behaviour. It does not necessarily put the defendant on a disadvantage. There would be a greater chance of a trial being unfair if the witness to their best capability cannot provide evidence if forced to give evidence in person. However, this implicit equality of arms rationale, has left the impression on English barrister’s perception that evidence on videolink is less convincing for jurors. The view of Strasbourg is clear in the case of Van Mechelen v. Netherlands[22], where the European Court of Human Rights condemned a prearrangement which maintained the anonymity of police officers who feared retaliations. They maintained this by being questioned by an investigating judge, with the accused and their legal representatives in a separate room with communication only via a sound link. This prevented the defence from observing the witnesses’ demeanour under direct questioning, and also from testing their reliability. It was held that this infringes Article 6 rights. But as long as the accused can see and hear the witness even if it is not in person then the fair trial principles stand sound.

Overall this brief essay has demonstrated the fact that how in theory special measures can infringe the rights of the defendants while maintaining the rights of the witnesses. However, it has also shown that vulnerable witnesses who are at risk of psychological harm or who are too young to understand and comprehend the procedures of a courtroom, may not be able to give reliable evidence if not provided with the special measures. To conclude, the agreement can sum up that special measures provided by the English Courts does not necessarily breach the Article 6 rights but in fact helps further facilitate a more competent fair trial where proper evidence is presented. English and Strasbourg jurisprudence both agree to that.A defendant has a right under any criminal justice system to a fair and just trial, English and They also unanimously agree that a fair trial is one where the offered admissible evidence can be fairly, thoroughly and efficiently tested in the court’s quest to determine the truth about past events.

[1] R. v MacPherson (Ian) [2005] EWCA Crim 3605; [2006] 1 Cr. App. R. 30

[2] ibid

[3] The only exception relates to spouses and civil partners who are only compellable to give evidence against their partner in limited circumstances.

[4] Section 16 of the Youth Justice and Criminal Evidence Act 1999

[5] Section 17 of the Youth Justice and Criminal Evidence Act 1999

[6] Corrine Charles, Special measures for vulnerable and intimidated witnesses: research exploring the decisions and actions taken by prosecutors in a sample of CPS case files, Crown Prosecution Service, April 2012.

[7] Doorson v. Netherlands (1996) 22 EHRR 330, [1996] ECHR 14

[8] ibid

[9] ibid

[10] Section 19 of the Youth Justice and Criminal Evidence Act 1999

[11] Section 16 (4) of the Youth Justice and Criminal Evidence Act 1999

[12] Supra n6

[13] Kostovski v Netherlands (A/166) (1990) 12 E.H.R.R. 434

[14] R. v. Redbridge Youth Court, ex p. DPP [2001] 4 All E.R. 411

[15] R. (on the application of D) v Camberwell Green Youth Court [2005] UKHL 4; [2005] 1 W.L.R. 393

[16] Laura C. H. Hoyano, Striking a balance between the rights of defendants and vulnerable witnesses: will special measures directions contravene guarantees of a fair trial? Criminal Law Review. 2001.

[17] MK v. Austria (1987) 24 E.H.R.R. CD 59

[18] MK v. Austria (1987) 24 E.H.R.R. CD 59

[19] Supra 15

[20] Dombo Beheer BV v Netherlands (A/274-A) (1994) 18 E.H.R.R. 213

[21] Supra 15

[22]