Pre-Trial Cross-Examination for Vulnerable Witnesses: An Idea Whose Time Has Come
Alan Cusack (BCL, LLM, PhD Candidate and IRCHSS Scholar) is an Academic Visitor at the Centre for Criminology at the University of Oxford and a PhD candidate in University College Cork conducting doctoral research in the area of access to justice for victims of crime with disabilities. Specifically, Alan’s research assesses how traditional adherence to normative adversarial processes at each of the pre-trial, trial and post-trial stages of the Irish justice system inhibits participation by victims of crime with disabilities.
In 2013, Alan was awarded the prestigious Government of Ireland PhD scholarship from the Irish Research Council (IRCHSS), having also previously been offered a Faculty of Law PhD Scholarship from University College Cork. Prior to commencing his doctoral research, Alan qualified as a solicitor with Arthur Cox solicitors, an international law firm based in Dublin.
Alan is a professional member of The Law Society of Ireland and is also a member of The Centre for Criminal Justice and Human Rights at University College Cork and The Institute for Social Sciences in the 21st Century (ISS21) at University College Cork.
A fully referenced version is available here.
Dear Editor,
Last month, in one of her first public acts as Lord Chancellor and Secretary of State for Justice, Elizabeth Truss launched a joint paper which sets out the Ministry of Justice’s vision for the future of the English justice system. The vision, according to the paper, is ‘to modernise and upgrade our justice system so that it works even better for everyone, from judges and legal professionals, to witnesses, litigants and the vulnerable victims of crime’.
One of principal reforms which is to be introduced as part of this ameliorative exercise is the admission of pre-trial cross-examination. Under the scheme, vulnerable victims and witnesses will be spared the ordeal of having to appear in court. The scheme envisages that, rather than being required to undergo the orthodox practice of live cross-examination before a jury, such witnesses will instead undergo private cross-examination at an earlier stage in proceedings. A video recording of these exchanges will then be played for the jury at the eventual trial thereby sparing vulnerable persons the stress of reliving traumatic events in open court. The move to introduce this measure comes following the successful implementation of pre-trial cross-examination on a pilot basis in three Crown Courts in England. According to the joint paper, the results of this pilot indicate that pre-trial cross-examination ‘results in a better experience for witnesses, with the cross-examination taking place in around half the time compared to other cases, and also showed an increase in early guilty pleas by defendants’.
When the scheme is rolled out nationally in England and Wales next year, it will mark a major shift in how criminal courts operate across the Irish Sea. For centuries, victims and witnesses have been expected to physically attend and, deliver their evidence live, in court in front of both members of the jury and the criminal accused. In enabling jurors to make judgements about the reliability of a witness’s account based on his or her demeanour in court, the live delivery of testimony has long been seen as an important evidentiary safeguard within the adversarial model of trial justice. In other words, it was seen as an essential ingredient in securing a fair trial for the criminal accused. Moreover, there was a significant practical argument against conducting this process pre-trial. Essentially, it was felt that by staging cross-examination earlier in proceedings both police and prosecutors would encounter significant difficulties in meeting their disclosure obligations. Given that the legal representatives of an accused can only effectively cross-examine a witness once they have received full disclosure of all prosecution evidence, expedited examination posed the obvious risk that some evidence may not have been disclosed to the defence by the scheduled interview date.
It is almost certainly for these reasons that Irish policymakers have traditionally been reluctant to meaningfully entertain the prospect of reforming this area of trial practice. Thus, while we have seen some significant developments in Irish criminal process in recent years with a view to improving the experience of vulnerable witnesses - such as the admission of live tv link testimony, the introduction of intermediaries and the recognition of recorded examination-in-chief- the position nevertheless remains that vulnerable witnesses must be available to attend court on the day of trial for live cross-examination. Even for the most assiduous and indefatigable of witnesses this process can be intimidating, but for vulnerable witnesses- such as those who, for instance, are children or have an intellectual disability- the ordeal is arguably heightened.
Owing to their limited cognitive development, such witnesses can encounter significant difficulties in understanding, recalling and communicating the details of a criminal event. These difficulties, research has shown, are in turn compounded by the intimidating setting and formality of the courtroom. On a moralistic level then, it is difficult to justify Ireland’s enduring subscription to this process. Nor, it would seem, can this procedural imperative be justified on instrumental grounds. In insisting that cross-examination be delayed until the formal trial date, traditional adversarial practice not only poses the serious risk of narrative distortion (given the likelihood of a vulnerable witness’s memory degrading over time), but it also poses a significant risk of attrition (given the likelihood of a witness dis-engaging with the criminal process over time due to mounting anxiety at the prospect of going to court).
Moreover, the evidentiary concerns routinely cited to justify our continued subscription to live cross-examination appear to be over-stated. Consistent research by Graham Davies in England, for instance, suggests that the medium of presentation of evidence has no material impact of the overall decision-making process of the jury. With regard to the traditional disclosure argument, the experience of the police and Crown Prosecution Service in England, who participated in the pilot scheme, suggest that this fear is unfounded. Indeed, in the Ministry of Justice’s formal process evaluation of the pilot (which too was launched last week), it was found that ‘[d]espite the concerns held by the police, third party disclosure did not appear to be a substantial problem for CPS prosecutors, defence advocates of judges’.
Ireland, it is submitted, should follow the lead of our Commonwealth neighbours on this issue. With our approaching (and long overdue) transposition of the Victims’ Directive, we have a unique opportunity to re-examine the formalities of the Irish criminal trial with a view to yielding a more inclusionary paradigm. Article 23(2)(a) of the Directive compels Member States to put in place, for vulnerable victims, ‘measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of communication technology’. The first step in meeting our obligation under this instrument is to establish pre-trial cross-examination on a statutory basis in this jurisdiction. In heeding the overwhelmingly positive reports emerging from the Ministry of Justice’s pilot scheme, the Irish framework should, at a minimum, replicate the scheme poised for introduction in England and Wales in 2017. However, Irish policymakers should also be emboldened to take this reformative exercise one step further by providing the measure to both vulnerable witnesses and vulnerable defendants alike. To restrict the benefit of pre-trial cross-examination solely to witnesses and victims- as is the case, for instance, in England and Wales- would not only be to deprive Irish courts of a vulnerable defendant’s best evidence but it would also, arguably, be to infringe the sacrosanct due process principle of equality of arms.
Pre-trial recording of the cross-examination of vulnerable witnesses is not a new idea. Back in 1989, the Pigot Committee advocated the implementation of such a scheme in England and Wales. While more recently in Ireland, the Irish Council for Civil Liberties recommended in a 2013 report that ‘provision…should be made to permit video recorded cross-examination or re-examination of vulnerable witnesses’. It is high time that these calls for reform were acknowledged and responded to by Irish policymakers. After all there is a strong public interest in empowering vulnerable witnesses to give their best evidence in court, not only in the moral sense of ensuring that the legitimate expectations of all court users are equally met within our criminal justice process, but also in the instrumental sense of making sure that those who prey on some of the most vulnerable members of our society are brought to justice.
Is mise le meas,
Alan Cusack
