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Pre-Recorded Judging?

The retired Lord Chief Justice the Lord Judge spoke out in his recent lecture “The Evidence of Child Victims: the Next Stage” (Bar Council Annual Law Reform Lecture
 21st November 2013) in favour of the pre-recorded out-of-court cross-examination of child witnesses. This will, apparently, relieve the tension inherent in the courtroom and put a young witness at ease.

Lord Judge urged that:

Our long term ambition must be that not one single one of those lives will be distorted by the forensic process, and that the impact on them of the unhappy events of which they speak will not be exacerbated by the process.”

In an ideal world, plans for out-of-court cross-examination would be unobjectionable. However, there are a number of obstacles.

From a purely mercenary point of view, nowhere does Lord Judge suggest any changes to the Advocates’ Graduated Fee Scheme, as a defence advocate undertakes work, formerly integral within the trial process, in a pre-trial environment perhaps subject to a later, pre-trial CPS decision not to prosecute. Never mind, no doubt the MoJ can overcome that difficulty with another revision to the AGFS and, given their current predilection for costs savings, another reduction in fees.

According to Lord Judge, the new world of pre-recorded cross-examination will allow:

better pre-trial decision making by both sides, in other words, the prosecutorial decision whether to proceed, and the plea to be offered by the defendant are both better informed.

Moreover, it will produce:

a trial taking place months after the evidence of the main witness for the prosecution will have been completed.”

Perhaps of more concern to the interests of justice is Lord Judge’s failure to address fundamental problems thrown up by pre-recorded cross-examination.

The prosecution is entitled to an opening speech outlining the evidence they propose to call as a benchmark for the jury and defence.     If the pre-recording of cross-examination takes place, the prosecution opening will assume more of the character of a closing speech, given the advantage of assessing the impact of defence cross-examination beforehand.

This cross-examination will take place in an environment far removed from the courtroom, perhaps in a comfortable witness suite. Presumably, no prosecutor would be present, just as no defence representative would be present during an initial police witness video interview. How, one wonders, does a court deal with a defence advocate transgressing against the rules of cross-examination, or riding roughshod over the pleas of an intermediary to put questions in a format readily understood by the witness?

Lord Judge said that:

I recognise that the judge must be in charge of the process.”

So how is a judge to control unnecessary, perhaps psychologically damaging, cross-examination without being physically present during the recording?

Ordinarily, the prosecution could object or the trial judge would intervene to prevent oppressive, prolix or irrelevant questions. Yet in this brave new pre-recorded world, barring any agreement to edit the DVD, there will have to be an argument before the trial judge, followed by any necessary editing. Even then, the witness may have already been damaged or discouraged from further participation by unethical questioning.

The recent slew of ‘grooming’ cases posed serious questions on ‘repeat’ cross-examination of young witnesses in a multi-handed trial. The difficulty with outlawing repeated cross-examination by defence advocates is that if co-defendants run ‘cut throat’ defences (i.e. A was outside the room but B did the act – and vice versa) then it is surely not be in the interests of justice to allow A to cross-examine on the facts, whilst simultaneously preventing B advancing their defence?

Yet if these out-of-court cross-examination proposals go ahead, there will be no judicial control of questioning by the defence advocates and even less protection for these witnesses by judges from needless repetitiveness than the system currently affords.

Will the same advocates be available, months after all this recording? Will the prosecution (if available after the defence cross-examination) have the chance to re-examine their witness on DVD, or does that have to wait for the trial?

With rape trials frequently listed only in a warned list, trials will be un-returnable if no defence advocate will accept a brief including the labour of another in cross-examination. In consequence, trial delays will be exacerbated.

When the trial does begin, months after all this pre-recording, how long will the court sit without the jury to hear argument on the DVD’s and transcripts of the witnesses from both sides? How long for any necessary editing thereafter?

Whilst one criticises unventilated issues, it cannot be said that Lord Judge’s speech was all in favour of measures to assist only prosecution witnesses. He specifically mentioned the difficulties faced by child defendants:

I do not see why the processes which protect the child witness or victim should not be available to the child defendant. To my mind it is not just a question of equality of arms, it is simply that the defendant who is a child is a child like the complainant who is a child.”

If a child defendant is to be treated in the same way as another young witness, Lord Judge’s espousal of the merits of pre-recorded testimony should surely extend to such defendants? However, the time for a defendant to consider whether to give evidence is at the close of the prosecution case. If the defendant then pre-records their evidence and the prosecution cross-examine, the defence may then want to re-examine. Thus further delays will occur, whilst jurors sit idle, awaiting the recording and subsequent legal argument to finish – before taking even more court time to view the DVD’s.

Pre-recorded testimony represents a laudable aim, fully in keeping with the former DPP’s frequent press releases on vulnerable witnesses, but a closer examination of Lord Judge’s proposals reveals a yawning chasm between theory and practice. One ventures to suggest that you do not have to be Gypsy Rose Lee – let alone a Queen’s Bench Division Justice – to foretell the inevitable pitfalls.

Alistair Mitchell                     49 Chambers

24 November 2013              Bridgnorth



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